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September 20, 2019

Bureaucracy opens its heart through non-paper

Top Story

September 20, 2019

ISLAMABAD: A bureaucracy’s non-paper on the National Accountability Bureau (NAB) is under circulation in the Federal Secretariat reflecting on how the Bureau has traumatised the civil servants and inflicted deep scars on the psyche of the public sector, leading to the worst-ever halt in decision-making in government service.

The bureaucracy’s non-paper also talks about the amendments considered by the government in the NAB law, and appears not really convinced with what the draft changes suggest. The paper says, “For all the talk of wanting to restore the confidence of the bureaucrat, the government misses out on a fundamental point; what does any honest man fear the most? Getting arrested and being paraded around as a criminal. Once arrested it matters little whether the act was cognisable or a non-cognisable procedural lapse, because by the time this is determined, the ‘tamasha’ would have moved on. Left behind would be a broken man, reputation in tatters, suspended from service without pay and drowned in legal fee. Given these consequences, what would any rational agent do? Quite simply, turn the lights off, and lie low. Because honestly, no work is sanctimonious enough or important enough to subject one’s family through the trauma being suffered by those unfortunate enough to get steam rolled by the NAB juggernaut in last year’s madness.”

The bureaucracy feels that the trauma of NAB actions in last one and a half years has etched deep scars on the psyche of the public sector; whether it is the career bureaucrats or the transient consultants, contractors and market sector professionals that have had the “misfortune of working with the government”.

The paper raises the question, “As the economy grinds to a halt, buckling under the piling weight of unsigned file work, the jury is still out on whether NAB’s hyper drive to recover ‘looted wealth’ has had a net positive or net negative impact on the country.”

Understandably, it is said, the government has taken notice, perhaps a little later than it should have, and sounded the alarm on NAB, its heavy-handed tactics and overzealous policing.

Referring to the proposed amendments in the law, it said, “Of course, what these amendments are will determine whether the treatment is a cure or placebo for the economic ills plaguing the country. It appears that the government intends to allay the fears of two main stakeholders of the slowdown: businessmen and bureaucrats. For the first group, the law minister proposes to remove private persons from NAB jurisdiction unless they are directly or indirectly related to a public office holder. Pakistan Business Council has already weighed in on this suggestion as too arbitrary to mean much, contending that the agency would still be at liberty to drag in whoever they want to target.”

For bureaucrats, the paper reads, the proposed amendment is a follows; “NAB shall not take cognisance of offences based on procedural lapses only unless it is corroborated with evidence that the officer has materially benefitted him such a decision/lapse”.

The bureaucracy is of the view that if this is the magic bullet that the government is pinning its hopes on to fix the problem then it seems to have completely missed the point of what’s wrong with NAB and why it instils so much fear that bureaucrats would rather get fired than sign on the dotted lines.

It says, “Does the NAB law currently allow cognisance of procedural lapses or ‘misuse of authority’ without financial gain? The answer is a resounding ‘No’. The relevant clause of the law that recognises misuse of authority as a corrupt practice is 9(a)(vi) which notes that: “[if he] misuses his authority so as to gain any benefit or favour for himself or any other person . . .” Hundreds of courts judgments have by now clarified that “any other person” has to be related to the accused and benefit has to be material. Cognisance is always taken against evidence so stating so doesn’t mean anything really.”

“So if the existing definition is more or less the same in substance to the revised definition, how was NAB so effortlessly able to do a wholesale roundup of ministers, bureaucrats, contractors and consultants in last year’s blitz against the Punjab government on non-cognisable offences such as ‘loss to exchequers’ ‘failure to prevent loss’ and ‘failure to complete project? The answer to this is simple, but also key to fixing the ongoing logjam: Chairman NAB answers to no one but himself.”

The bureaucracy is of the view, “NAB in its current form is centralised around the exceptionally powerful office of the chairman. The chairman can order any person to be arrested based upon his own appraisal of evidence without the need to even record his reasons for doing so. There is simply no authority to answer to; no oversight; no internal check and balance on who is arrested and why; no independent assessment on whether the case is prosecutable; and no files or regulator to advise otherwise. Traditionally courts serve as a bulwark against executive excesses, but when the chairman is a retired justice of the Supreme Court even these bets are off.”

It adds, “And if the government thinks that instituting fairer control over arrest through a committee (as the amendment draft proposes) would fundament change the equation, it should prepare itself for a rude surprise. For the person whose neck is sticking at knows with clarity: when push comes to shove, no committee would really stand in the way of the storm.”

“The officers behind bars understand this, the ones outside refusing to work understand this. And the PPP understands this,” it said, adding, “That’s why the amendment the party floated in the Senate introduces an elegant yet effective change; take away the chairman’s power to arrest, and give it to the courts. If a reference is filed, and the accused does not show up, the court can issue his arrest warrants.”

“The basic thought behind an arrest is to contain a person if he/ she is an immediate threat to society, is a flight risk or can destroy evidence. If the objective is to victimise or shock and awe, arrests en masse is the way to go. But if fairness and justice is what we as a country want, then the prudent thing to do would be to patiently wait till the court completes the trial and gives a verdict. If a person is guilty he will face punishment, if not, then there is no advance punishment suffered at the hands of a callous justice system.”

As far as ‘misuse of authority’ as a crime goes, the document maintains that the government must introspect with an open heart about what it wants its ‘anti-graft agency’ to achieve. “If it wants to stop corruption, i.e. taking of money or other material gains in exchange for misappropriating public goods, then 9(a)(vi) is frankly redundant. And silly. Delete it all together. Clause 9(a)(i) and (ii) amply cover any and every form of bribe, kickback illegal gratification. Or any other name such, may be referred as. They are enough to bring to heel any corrupt elements in society.”

“But if the objective is to keep a hammer that may be let-loose on another government unfortunate enough to fall in disfavor, then there is not better tool to wrap up tomorrow’s Lahore Parking Company for not handing over parking spots, Punjab Land Development Company for not building low-cost homes and Punjab Saaf Paani for installing filtration plants in an extra district. The trade-off unfortunately is that we will never be sending any lander to the moon, because God forbid if it loses communication, it would be a fit case for misuse of authority causing loss to the exchequer,” the paper added.

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