Balancing accountability

In an unexpected and much-delayed move, the Sindh government decided to repeal the National Accountability Bureau (NAB) in the province. A bill – the National Accountability Ordinance 1999 Sindh Repeal Bill, 2017 – was passed by the Sindh Assembly on July 3 and has been rejected by opposition parties, legal experts and political commentators.

As expected, the bill was returned to the Sindh Assembly for review by the governor of Sindh, who believes it contradicts the 1999 ordinance. There is a strong likelihood that the bill will be returned to the governor. As per the existing law, if the governor doesn’t approve the bill this time around, it will automatically become a law 10 days after it has been received by the Governor House.

The bill has generated a debate on whether or not a province can repeal NAB. The issue is likely to generate a controversy between the centre and its federating units – especially in the post-18th Amendment scenario when combating corruption is considered to be a provincial subject. Before Sindh, the Khyber Pakhtunkhwa government also tried to set up it owns anti-corruption body in the form of the Ehtesab Commission. But it did not repeal NAB. However, its experience with this anti-corruption body has been far from favourable.

The 2017 bill confers all powers to an apparently weak provincial anti-corruption department. This leaves NAB at the mercy of a renewed legal and structural controversy. It also suggests that a new provincial accountability agency should be established within 30 days.

The bill has been viewed by some elements as a reaction to the pressure faced by the provincial government. It is an open secret that the PPP-led Sindh government has been under pressure from NAB owing to a series of registered and unregistered cases that have surfaced against its sitting ministers and elected members in recent years.

The timing selected to strike down NAB’s edifice in the province makes it appear more like a calculated move. The bureau’s powers to register FIRs and grant 90-day remands have been repeatedly questioned. NAB’s provisions for plea-bargaining and voluntary returns along with its selective accountability of political opponents at the behest of sitting governments have also made the body appear controversial.

When it was set up 18 years ago, after Musharraf’s military takeover, NAB was mandated to expose and investigate corruption cases. Initially, it earned some success. Later, NAB lost its credibility and core functionality when it was used as a tool to harass people, As a result, the domain of accountability has been politicised.

Since its inception, NAB has recovered Rs 288 billion, as per its official website. Given the magnitude of the black economy in the country, these achievements appear limited.

NAB’s structure was introduced through a National Accountability Ordinance (NAO) in 1999. This ordinance was enacted in pursuance of the proclamation of emergency on October 14, 1999 with the advent of the Provisional Constitutional Order (PCO) on the same day. It was also made applicable to the provinces and added to the sixth schedule of the constitution along with Local Government Ordinance 2001 and Police Order 2002 to prevent the provinces from repealing or amending it.

However, the draft of the 2017 bill clarifies that under the 18th Amendment the emergency and the PCO were declared without any lawful authority from parliament. The local government and the police have been put under the same bracket and have already been transferred to the provinces. As a result, there was no legal justification to allow combating corruption to be left unattended.

Sindh Chief Minister Syed Murad Ali Shah and his provincial government’s Advocate-General Barrister Zamir Ghumro have come up with various reasons on its legality and practicability. Both of them have said that two parallel laws cannot be enforced simultaneously. They believe that it is the prerogative of provincial government to amend the law and are planning to establish a provincial accountability agency in this regard.

Combating corruption is, to all intents and purposes, a provincial subject. It is another debate altogether whether the provinces have the capacity to address corruption at their own level or require further assistance to deal with white-collar, corporate and cyber-related crimes. The provinces need all possible integrated mechanisms in place before rooting out this menace. The new law must account for these concerns.

If the controversy surrounding the repealment is anything to go by, the new bill is definitely going to be challenged by the Supreme Court. Instead of political point-scoring in the media and on parliamentary forums, it would be far more important to see how the Supreme Court defines the separation of powers between centre and the provinces. It would probably be more interested in the alternative mechanisms that the provinces have developed to combat corruption before repealing NAB from their respective provincial jurisdictions.

As a result, empowering FIA at the federal level and the renewed frameworks of anti-corruption agencies at the provincial levels can and should be the solution to balance the course of accountability in the country.

The writer is an Islamabad-based anthropologist and analyst.

Email: sikandarhullio@yahoo.com