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August 31, 2019

Conflict of interest

Opinion

August 31, 2019

Not every conflict of interest situation leads to corruption. An honest and correct decision can be made in the larger public interest by a competent officer if he or she is allowed to disclose it to an internal or external review forum.

Officially, conflict of interest is defined as preferring private personal interest over public interest. Conflict of interest or potential conflict of interest can be managed either by installing a legal prohibition framework with clear definition of conflict of interest and penalties, or by recognizing that its unavoidable and adopt a preventive approach by offering a public office-holder an option to disclose potential difficult situation or a recusal statement for a third party to review.

Since many situations arising from conflict of interest can be complicated and vague, the reviews by a third party forum are consolidated to build up multiple situations for public office-holders to take guidance from.

The PTI, which has been a protagonist of legislation to prohibit conflict of interest as part of its anti-corruption stride, seemingly has two parallel but opposite approaches to treat it, depending on who is at the receiving end – harder or prohibitionist, and softer or preventive.

In 2013, after forming government in Khyber Pakhtunkhwa, the PTI introduced the conflict of interest legislation in the assemblies. A law, ‘The Khyber Pakhtunkhwa Prevention of Conflict of Interest Act’ was promulgated in Khyber Pakhtunkhawa in 2016 while identical legislation was done in Punjab early this year.

However, both the laws are still far from implementation. At the federal level, in 2016, a similar initiative was taken by the then PTI MNA, Murad Saeed, who moved a national conflict of interest law as a private member bill. This was referred to the National Assembly committee, but after considering it for a year, the committee recommended that it should not be passed. Another bill on the same subject with the signature of PPP Senator Murtaza Wahab ,moved in the Senate in 2017, is pending and expected to have the same fate like the one in the National Assembly.

After one year in the government, the PTI’s crusade against corruption seems to have boomeranged. Despite many assurances from the NAB chairman, the federal bureaucracy is not ready to take any risky decision.

The NAB law says that a holder of public office commits corruption if they misuse their authority to gain any benefit or favour for themselves or any other person, or render or attempt to render or wilfully fail to exercise their authority to prevent the grant, or rendition of any undue benefit or favor which he could have prevented by exercising his authority.

“If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person,” the law stipulates.

This section and others of the NAB law can override any softer bureaucratic approach to manage and prevent conflict of interest.

Given the chequered political history of the country, the political mood can swing and can affect even those within the government. All this requires the federal government to come up with a softer conflict of interest management approach. Talking about the federal cabinet meeting held on August 20, Advisor to the PM on Information Firdous Ashiq Awan said that the federal cabinet observed that business activities had stopped due to fear of NAB. “It has been informed in a series of meetings, chaired by the prime minister, that local and foreign investment has come to a halt and bureaucrats are not signing files and have stopped decision-making due to the fear of NAB.” The cabinet, she said, will come up with a concrete step to stop any arm twisting by NAB.

Allied to this is the federal government talking of developing guidelines for the federal bureaucracy on the subject – but it’s not clear if such a softer regime will be developed for political appointees or not and whether after going through this exercise a holder of public office will not be scrutinized under NAB law.

The KP law is made with an objective to establish clear conflict of interest and related post-employment principles for public officeholders. It is to prevent and minimize the possibility of conflicts arising between the private interests and public duties of public office-holders, and provide for their resolution in the public interest.

The Act is to establish an independent commission with the mandate to determine the measures necessary to avoid conflict of interest and to determine whether a contravention of this Act has occurred. It is also to encourage experienced and competent persons to seek and accept public office and to facilitate interchange between the private and public sectors and not to deny equal opportunities to relatives of the public office-holder, since relatives cannot be barred from legal business activities and for matters connected therewith.

The Punjab law has a similar preamble to establish the Prevention of Conflict of Interest and Ethics Commission.

Once the commissions are formed, they will develop a stipulated form asking the public office-holders to furnish details mainly of their assets and kin and kith to the commission, and the commission will evaluate conflict of interest with reference to the form. All these proceedings will be published in a report.

The three-member commission will be headed by a retired judge of the high court, a retired grade 20 officer, and a finance expert. They can also extend secret advice to chief ministers. The commissions can also revisit a contract that might have been made in a conflict of interest situation and also has the power to not to rescind the contract if benefits are more in public interest.

The erring public office-holders can have softer punishments like fines, but it does not mean termination or disqualification from the job. However, the catch is in the definition of ‘public office-holder’ in both provincial legislations. It includes the chief minister, ministers, advisers and secretaries, and heads of different departments. This means that both laws do not have jurisdiction over more than 100 public office-holders in both the governments.

In contrast, NAB law has jurisdiction over almost every public office-holder and those who are not in government jobs as it extends to the whole of Pakistan and applies to all persons who are or have been in the service of Pakistan.

The writer is a freelance contributor.

Email: [email protected]

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