Friday September 29, 2023

The right recovery

In order to ensure an efficient anti-corruption regime, there are two requirements – a set of stringent anti-graft laws, and an independent agency to strictly enforce these laws. Sadly, both these things have essentially been missing in the national discourse in Pakistan. Despite pervasive corruption in the country, we have

August 26, 2015
In order to ensure an efficient anti-corruption regime, there are two requirements – a set of stringent anti-graft laws, and an independent agency to strictly enforce these laws.
Sadly, both these things have essentially been missing in the national discourse in Pakistan. Despite pervasive corruption in the country, we have hardly observed the required degree of resolution and commitment on the part of government to curb this menace so far. Consequently, corruption has deeply penetrated society.
General (r) Pervez Musharraf announced his so-called seven-point agenda soon after coming to power in 1999. Ensuring swift and across-the-board accountability in Pakistan was an essential part of this agenda. For this purpose, replacing the Ehtesab Act, 1997, he readily promulgated his much-trumpeted NAB Ordinance, 1999 in the country. However, this law too – like its predecessor – failed to effectively curb corruption. Political pragmatism and expediency instantly overshadowed his entire accountability drive as soon as he decided to promulgate the notorious the National Reconciliation Ordinance (NRO) in 2007. His policy of political reconciliation was also equally pursued by all succeeding political regimes in the country afterwards.
The NAB Ordinance, 1999 was primarily promulgated to “provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions”. The ordinance also stated: “there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power and/or authority.”
Therefore, unlike its predecessor, the Ehtesab Act 1997, this ordinance introduced the very practice of ‘plea bargain’ – providing a legal mechanism to NAB for assets recovery in the

Section 25 of the NAB Ordinance, 1999 empowers the chairman NAB to release, before or after the commencement of trial, any person accused of any offence under this ordinance if he returns the assets or gains acquired through corruption or corrupt practices. At the same time, under section 10 of this ordinance, a person who commits the offence of corruption can also be punished with imprisonment up to 14 years, with or without fine. However, it has now become general practice with NAB that once any person accused of corruption returns a portion of ill-gotten money under a plea bargain, s/he is hardly punished by an accountability court.
In practice, NAB has now somehow become more an assets recovery agency than an accountability body. Some months ago, the additional prosecutor general of NAB submitted a report in Supreme Court of Pakistan claiming to have recovered Rs263 billion over 15 years. NAB has been recovering amounts from loan defaulters of financial institutions. Recently, it was also tasked to recover outstanding dues from the electricity defaulters. It is quite unfortunate that the premier anti-graft body, which is supposed to launch a rigorous accountability drive in country, has confined itself to recovering outstanding loans and utility dues from people.
As matter of fact, the plea bargain clause in the NAB Ordinance is in conflict with the recognised principles of criminal jurisprudence in the country. Under the law of the land, certain so-called offences against property like theft, extortion, robbery etc are necessarily non-compoundable – ie an offence for which a victim or a court is not allowed to make any compromises with the perpetrator. Similarly, a plea of guilty always goes against the accused. This plea is generally considered strong evidence against an accused person, and often leads to his/her conviction. On the other hand, a person accused of corruption can easily manage to go unpunished under the plea bargain clause of the NAB Ordinance. It is quite ironic that a person who commits a theft of a few thousand rupees cannot escape punishment but a person who plunders national wealth can go scot-free.
The deterrence theory of punishment necessarily assumes that a person obeys the law only because he is afraid of getting caught and be punished. The fear of punishment deters not only individuals from repeating a crime but also others from committing similar crimes. Regrettably, instead of inflicting heavy punishments on persons involved in corrupt practices, they are provided any opportunity to escape the law by returning a fragment of the plundered wealth to the government. Indeed, this practice is tantamount to making a mockery of the law.
The United Nations Convention against Corruption (UNCAC), the first global legally binding international anti-corruption instrument, was adopted in 2003. Chapter V of the convention recognises asset recovery as an important international tool in the fight against corruption. International asset recovery is an effort by a country to repatriate the proceeds of corruption from another foreign country. Under this convention, the member states of the UN are required to extend cooperation in tracing, freezing, confiscation and repatriation of assets to a ‘victim country’. Ironically, the very concept of asset recovery that relates to ‘cross-border corruption’ in international jurisdiction has been made part of domestic jurisdiction in Pakistan by inserting the provision of the plea bargain in the NAB Ordinance.
In 2014, the then chairman NAB revealed the starting figure of daily corruption in Pakistan which just hovered around Rs12 billion. In this way, the annual figure simply touches Rs4000 billion to Rs5000 billion. Now NAB claims it has recovered the total amount of Rs263 billion in the last 15 years.
This figure of Rs263 billion also includes the Rs181 billion that have been recovered from loan defaulters only. Therefore, the net amount recovered from those involved in corrupt practices is around Rs82 billion which is by no means an impressive figure. In fact, NAB has only recovered proceeds of corruption that roughly cover the period of just one week in the last 15 years. Indeed, there can be no joke bigger than that what has been played on this disillusioned nation in the name of accountability.
In order to combat monstrous corruption in the country, Pakistan needs to adhere to an efficient anti-corruption regime. Necessarily based on a ‘zero tolerance’ policy towards corruption, we have to introduce stringent and stricter anti-graft legislation in the country. Undoubtedly, the ‘plea bargain’ provision in the NAB Ordinance is as obnoxious and undesirable as has been the notorious NRO. Therefore, Pakistan must review its anti-graft laws making them more competitive and strong to combat the ongoing ‘economic terrorism’ in the country.
The writer is a Lahore-based lawyer.