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CORRUPT!!

Corruption seems to have spread like cancer on the bodypolitic of Pakistan.

Internationally, Pakistan has earned the dubious distinction of being labelled as the
second most corrupt country in the world. Pakistan government has promulgated the
Ehtesab (Accountability) Ordinance, 1996 to eradicate corruption and corrupt practices
from public offices in Pakistan.

The Accountability Ordinance defines the term corruption and corrupt practices in its
broadest sense. The promulgation of the Accountability Ordinance is a result of the
dismissal of the Bhutto government and the dissolution of the National Assembly by
President Leghari on November 5, 1996, on the ground, inter alia, that corruption,
nepotism and violation of rules in the administration o the affairs of the government and
its various bodies, authorities and corporations, has become so extensive and widespread
that the orderly functioning of government in accordance of [sic] the provisions of
Constitution and the law has become impossible and in some cases, national security has
been endangered .. Members of the government and the ruling parties are either directly
or indirectly involved in such corruption, nepotism and rule violations. The President's
Proclamation indicated that a Bill for prevention of corrupt practices had been moved in
Parliament by the Bhutto government but alleged that it was a disguised assault on the
judicial organ of the state and an attempt to destroy the independence of the judiciary
guaranteed by Article 2A of the Constitution and the Objectives Resolution. It further
alleged that the Bill was:

(i) not brought to the attention of the President as required under Article 46(c) of the
Constitution, and

(ii) designed not only to embarrass and humiliate the superior judiciary but also to
frustrate and set naught all efforts made, including the initiative taken by the President, to
combat corruption and to commence the accountability process. The President's initiative
to combat corruption was, however, not specified. It is reported that the opposition
members in the National

Assembly had also moved an anti'corruption Bill prior to its dissolution by the President.
It is also reported that there were several corruption cases pending in the courts involving
Bhutto's husband, Asif Zardari. The President himself was allegedly involved in
corruption in the much publicised Mehrangate scandal. The President's action to dismiss
the government and dissolve the National Assembly on the above-noted ground,
therefore, appears to be unwarranted. It my view, is tantamount to undue interference in
legislative and judicial functions (to the extent that it pre-judges guilt), and it is either
intended to influence or will have the likely effect of unduly influencing the judiciary
(since it induces belief that the Presidential action was intended to save the judiciary).

The President's action is not the first such action of its kind. History has repeated itself
four times in the short span of a decade. Four governments have by now been dismissed
successively on corruption charges among other things. In May 1988, President Zia
dismissed the government of Mohammed Khan Junejo for incompetence, corruption and
lack of attention to the Muslim faith in exercise of the presidential powers under Article
58 of the Constitution (as amended by ihe Eighth Amendment). He also dissolved the
National Assembly at the same time and promised that he would hold new elections
according to Article 48 of the Constitution, which stipulated that elections, must be held
within 90 days. On August 6, 1.990 President Ghulam Ishaq Khan dismissed the Bhutto
government accusing it of corruption, abuse of power and other acts in contravention of
the Constitution and the law. He also dissolved the National Assembly and the provincial
Assemblies under Article 58. Several court cases specifically on charges of corruption
against Zardari were, however, dismissed later. Oa April 18, 1993, President Ghulam
Ishaq Khan once again using the presidential powers under Article 58 dismissed the
Nawaz Sharif government charging it with corruption, nepotism and mismanagement. He
also dissolved the National Assembly. On May
6, 1993, the Supreme Court of Pakistan, however, overturned1 President Ghulam Ishaq
Khan's order dismissing Prime Minister Nawaz Sharif and dissolving the National
Assembly.

While the historical perspective outlined above clearly explains the need and motivation
for the promulgation of the Accountability Ordinance, namely, the eradication of the
perennial problem of corruption, its continuation is somewhat unpredictable. As an
ordinance promulgated pursuant to the special legislative powers granted to the President
under ..Article 89 (1) of the Constitution, the duration of the Accountability Ordinance is
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to four months. An ordinance promulgated by the President under this Article has the
same force and effect as an Act of Parliament. It, however, stands repealed automatically
at the expiration of four months from the date of its promulgation unless if is either
aoproved (or disapproved) by the President) before the expiry of that period. An
ordinance is required to be laid before the National Assembly and is deemed to be Bill
Introduced in the National Assembly, T5e National Assembly is, however, not obliged to
take any action thereon and could set it be repealed automatically, The survival of the
Accountability Ordinance in its present or any other form would, therefore, depend on the
political will of the National Assembly members that are elected in the forthcoming
elections. To the extent that the Accountability Ordinance poses a moral hazard for the
newly elected National Assembly members, one can be sure that vested interest is likely
to prevail. Electoral accountability would, therefore, be an important prerequisite for the
survival of the legislative accountability process sought to be established by the
Accountability Ordinary.

The Accountability Ordinance, 1996 has two objectives. Its main objective is to provide
for the eradication of corruption and corrupt practices from the public offices and its
ancillary objective is to provide for effective measures for prosecutien ard speedy
disposal of cases involving corruption and corrupt practices. The effective achievement
of these objectives will, of course, depend oa the sincere JmplementatioB of the law
itself. In substance, the Accountability Ordinance applies (from 31 December 1985
onwards) to every holder of public office, a term which has beeo defined to include: (1) a
Pasl President and Governor of a Province, (2) past and present Prime Minister, other
Federal ministers, advisors and assistants, members of parliament, Auditor General ard
Attorney General (but does not include federal judges), (3) past and present chief
Minister, other provincial ministers, advisors and assistants, members of provincial
assembly, and Advocate Genera! (but does not include provincial judges), (4) senior
bureaucrats (Grade 20 and above), at both the federal and provincial levels, including
those serving on government owned, controlled or administered enterprises, but
excluding specially members of armed forces, other thaa those serving on government
owned, controlled or administered enterprises, and (50 persons giving illegal
gratification. The focus of the Accountability Ordinance is clearly on higher ranking
members of the bureaucracy and legislatures both at the federal and provincial levels.

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The news media appears to have created a lot of political hype and generated a lot of
unnecessary skepticism among the general public about the non-inclusion of the current
President and Governor of a Province and judges in, and the specific exclusion of the
members of the armed forces from, the definition and scope of the Accountability
Ordinance. These holders of public office are j constitutionally exempt from the purview
of laws such as the Accountability Ordinance. Article 248 of the Pakistan Constitution
provides that no criminal proceedings can be instituted or continued against the President
or a Governor in any court during his term of office. Furthermore, the Pakistan
Constitution, in order to preserve the independence of the judiciary, holds the judges of
the Supreme Court and the High Courts accountable only through constitutional means.
Article 199 (3). of the Pakistan Constitution exempts members of the armed forces from
civilian jurisdiction as they are governed by special laws applicable to armed forces.

While the application of Accountability Ordinance is limited to senior officials and

legislators, the subject matter itself is covered extensively by a broad definition of the
term corruption and corrupt practices. Although defined mainly in terms of financial
corruption (acquisition of property by illegal or unfair (non-contractual) means or
through abuse of power), the term includes political corruption (committing or causing
rigging of elections) as well The Accountability Ordinance takes an outcome based
approach and goes beyond the traditional transaction oriented definition (i.e. the act of
the giving and taking illegal gratification) to include living unjustifiably beyond one's
means as an offence of corruption and corrupt practice. Accordingly, possession of any
pecuniary resources or moveable or immovable property, whether situated within or
outside Pakistan and whether owned directly by a person or any of his dependants or
benamidars, disproportionate to the persons known sources of income, which he cannot
reasonably account for, constitutes corruption within the meaning ascribed to the term in
the Accountability Ordinance.

The Accountability Ordinance has established an institutional framework (even though

the Ordinance may lapse after four months!) to ensure effective measures for prosecution.
It provides for a Chief Ehtesab Commissioner (CEC) to be appointed for a term of four
years for the purposes of inquiries, investigation and prosecution into allegations of
corruption and corrupt practices. The CEC is required to be a person who is or has been a
judge of the Supreme Court of Pakistan (Mr. Justice Ghulam Mujadid Mirza has been
appointed for the first term). The

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appointment of CEC officers and staff is required to be made by the federal government
with the concurrence of the CEC. The CEC has been given wide powers to carry out his
functions: The power to seek the required assistance and call for documents and
information relevant to any proceedings pending before him and the power to punish for
contempt (normally a power of the court and not a prosecutorial power such as that
exercised by the CEC).

A corruption case can only be initiated by the CEC on: (i) a reference received from the
appropriate federal or provincial government, (ii) receipt of a complaint, or (In) his own
accord. The CEC, therefore, in effect acts as a clearing agent for all corruption cases
sought to be instituted under the Accountability Ordinance. Both the need and efficacy of
this prescribed method are the CEC is required to obtain proof and evidence in support of
allegations made by the government or complainant even though the Accountability
Ordinance has the effect procedurally of shifting the presumption of guilt to an accused
person giving or accepting illegal gratification or living unjustifiably beyond his means.
The CEC is expected to institute the necessary inquiry and investigation, which inquiry
and investigation is required to be completed within one month. Where a prima facie case
is made out, the CEC is required to refer the special prosecutor for conducting the trial.
Where no prima facie case is made out, the CEC is required to reject the reference or
complaint and record his reason for such rejection.
The effective measures for prosecution prescribed by the Accountability Ordinance raise
certain fundamental procedural issues. The speedy disposal of cases often lead to a
derogation of the principles of procedural law. They introduce the notion of summary
procedures which always affect the due process of law. The principle of criminal
procedural tew is o presume innocence unless proven guilty. The principle of civil
procedure is also defendant-oriented even though the burden of proof under evidentiary
requirements is less stringent. The Accountability Ordinance has the effect of reversing
the presumption of guilt and curtailing the evidentiary requirements for proving
innocence. Civil remedies - requiring a lesser degree of. burden of proof -- could and
should have been introduced additionally for third parties that are affected by
corruption and corrupt practices. The Accountability Ordinance does seek to encourage
private complaints against corruption and corrupt practices by allowing complaints to be
rewarded in case the accused is convicted by the High Curt or his conviction is upheld by
the Supreme Court. However, this incentive is effectively counterbalanced by the threat
of imprisonment of the complainant for up to

three years or fine or both in case the complaint proves to be false, mala fide or made
with an ulterior motive. It would have been more effective to provide for civil remedies
instead of providing for summary criminal procedures which negate the due process of
law. The due process o law is an essential part of the justice system no matter how odious
the crime or together unlawful activity.

The Accountability Ordinance does not introduce any new substance in dealing with the
age-old problem of corruption and corrupt practices. The subject matter has been dealt
with in various legislations from time to time from the inception of Pakistan.
Substantively, at the federal level, the Pakistan Penal Code, 1860 (Sections 161-165)
contained specific provisions relating to bribery and other such offences y public
servants. This was in fact preceded by the Public Servants (Inquiries) Act, 1850 and
followed by the Prevention of Corruption Act, 1947 (which, inter alia, deals with where
public servants, presumption where public servant accepts gratification other than legal
remuneration; declaration of assets; and possession of property disproportionate to know
sources of income). Several provincial laws and regulations complement the federal laws:
For example, the Sind Prevention of Bribery and Corruption Act, 1950, the West Pakistan
Anti-Corruption Establishment Ordinance, 1961, the Punjab Anti-corruption
Establishment Rules, 19°5. In addition to public servants (bureaucrats), anti-corruption
measures were also sought to be applied to other holders of public offices (e.g. members
of legislative assemblies) through the Holders of Representative Offices (Punishment for
Misconduct) Order, 1977 and Parliament and Provincial Assemblies (Disqualification for
Membership) Order,
1977.

The Accountability Ordinance does not add much to the existing institutional or
procedural framework to deal with a corruption. The establishment of the office of the
CEC is in most part unnecessary. The role that it is intended to play is already being
performed by government agencies such as the Federal Investigation Agency (FIA)
established under the Federal Investigation Agency Act, 1974 and the. Wafaqi Mohtasib
(Ombudsman) appointed under the Establishment of the Office of Wafaqi Mohtasib
(Ombudsman) Order, 1983. While the FIA is required to perform investigative functions,
the Ombudsman is mandated to diagnose, investigate, redress and rectify any injustice
done to a person through maladministration. The term maladministration includes: a
decision, process, recommendation, act or commission which, inter alia, involves
thfeexcrcise of powers,
*~

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or the failure or refusal to do so, for corrupt or improper motives, such as, bribery,
jobbery, favouritism, nepotism and administrative excesses. The CEC, FLA and the
Ombudsman, therefore, clearly have overlapping functions - particularly the CEC and the
Ombudsman. Consequently, the costs associated with establishing and maintaining the
additional institutional structure of the office of the CEC appears to be totally unjustified.

Procedural^, the Pakistan Criminal Procedure Code has been amended several times in
the past (see, e.g., The Pakistan Criminal Law Amendment Act, 1958) to deal with the
problem of corruption by, inter alia, appointment of special judges and/or tribunals from
time to time handle corruption cases. The Accountability Ordinance relies on regular
courts and judges even though it has elevated the adjudication to a bench of the High
Court.

The current manner in \\-hich the process of accountability is being carried out is

(I) unnecessary, (ii) improper, (In> inadequate.

UNNECESSARY, because the legal framework for dealing with corruption already exists
- both in substantive and institutional terms. What is needed is the sincere implementation
and application of existing laws and procedures and, if anything, the strengthening of the
existing institutional framework;

I^WUSTJFTj-D, because an apparent attempt at least was ooing made by the ousted
government to deal with the problem cither on account of its a own initiative or under
pressure from the interaatloaal community. The President Proclamation Order dismissing
the Bhutto Government itself indicates that a Bill for prevention :>f corrupt practices was
approved by the Cabinet and moved.iu Parliament and further vaguely refers to an
initiative taken by Us? President to combat corruption and to commence the
accountability process;

Illegal, bccu-'ic the • Accountability may in substance be viev.iir! as a m:;h; fke and
dtctatoriaf exercise of a constitutional (Eighth amendment) power s«d as such regarded as
the fruit of the poisonous tret;
IMftHOPFR, because H Is subversive of the politi-al process &nd u«j;f$tecfive of civ;!
righjs. Tue repeated seemingly dictatorial exercise of the constitutional provision (Eighth
amendment) is against thr principle of (fc'mocracy. The President's Proclamation

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could be interpreted as being pre-judgement and defamatory. It could also be perceived to

create a judicial bias and lead to the pcliticisation of judiciary (by increasing its
involvement in political cases, which is being perhaps wrongly interpreted as judicial
activism (an activist approach towards social issues, e.g., civil rights, environment etc.).
Last but not least the Accountability Ordinance appears to negate the due process of law.

INADEQUATE, because it employs traditional means of combating corruption (through

anti-corruption legislation) which has been a tested failure not only in Pakistan but
throughout the rest of the world.

Despite the above-noted weaknesses and criticism of the Accountability Ordinance, the
objectives thereof remain valid and need to be pursued vigorously. Although the
Accountability Ordinance does not offer anything substantive!}' new, it does make un
important contribution in that it targets the top echelon of the bureaucracy and politicians
- which is presently considered to be either the source of corruption and corrupt practices
it self or The immunity system that shields corruption at.si corrupi practices in the body
politic Moreover, the format provided by the Accountability Ordinance may give fresh
impetus to fight an old cause with renewed vigqur: One, therefore, hopes that the
anticipated legislature would not allow the Accountability Ordinance to lapse an take
constructive measures, taking into account the above-noted comments and criticism, to
regularise and new the same with necessary modifications. The new legislative assembly
would do well to introduce the notion of civil remedies (i.e. personal accountability under
civil law in addition to social accountability under criminal law). The advuntage would
be to not only obtain a greater number of convictions and to recover more stolen assets
but also to consequently ensure additional deterrence. Ultimately, however, it is not the
regularization and adoption of the legislation, alone, with or without modification, but the
sincere implementation of the same thflt would be an important step towards the
achievement of its objectives. Even the proper implementation of the law would only be
& partial preventive tool and not an effective overall cure for ihe problem of corruption.

• An integrated law and development approach is essential to combat corruption and

promote accountability meaningfully and effectively. A socio-economic incentive system
for honesty needs be created along with an exemplary deterrent system cf anticorruption
laws. One has also to consider the behavioural aspects of corruption (basically need and
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remedy. Realistic wage reforms should be introduced to take case o the basic needs of
public servants in order not to at least give them the reason or excuse for being dishonest.
This could perhaps be easily achieved within the existing revenue resources by the
introduction of transparency in the payment of salaries of public servants and the
trimming of wasteful public expenditures, Overall civil service reforms to curtail
bureaucratic power are also essential. As is well known "power corrupts and absolute
power corrupts absolutely." Wage reforms should, therefor, foe coupled with the
curtailment of discretionary powers of the bureaucracy to reduce the element of greed in
corruption and corrupt practices. Furthermore, the exercise of political powfrs should also
be streamlined through the proper regulation of sjeh powers