Law, Social Justice & Global Development
Source: “National Corruption Perception Survey TI Pakistan 2009”. NCPS 2009, http://www.transparency.org.pk/documents/NCPS%202009/NCPS%202009 %20%20Report.pdf
Graph 1.1 Causes of Corruption
The table below shows Pakistan’s most corrupt rank during the military as well as civilian regimes from 2005 to 2012.
Table 1.2 Transparency International; Corruption Perception Index Pakistan Score and Ranking
Source: “Corruption and its Deep Impact on good governance in Pakistan”. Pakistan Economic and Social Review, 48(1): 123-134. http://www.pu.edu.pk/economics/pesr/PDF-FILES/7%20JAVID%20Corruption%20and %20its%20Deep%20Impact%20on%20Good%20Governance%2085.pdf
“National Perception Survey” 1996-2012. Transparency International Pakistan, http://www.transparency.org.pk/
Transparency International Pakistan showed below some results of the most corrupt departments in a survey conducted by Gallup Pakistan and Gratis for TIP.
Source: “National Corruption Perception Survey 2011”. 28 December 2011. http://www.transparency.org.pk/ncps2011/ncps2011.pdf
The report identified the factors that have made it almost impossible to prosecute the political leadership for corruption. General Musharraf promulgated the NRO that provided immunity to political leaders, army officials and civil servants from all charges of corruption which provides an opportunity to establish corruption at institutional level. In addition, the anarchy and uncertainty that deeply engulfed the affairs of the country, besides growing inflation, joblessness and rapid decline in development have aggravated the situation (TIP, 2009).
Khawaja and Mian observe that that political meddling and corruption is enhanced by government-controlled banks that have been used by top-level officials to swindle large sums of money. In addition, politicians use the state controlled banking system to gain access to huge loans from these banks and then default on repayment (2004: 7).
Ishrat Husainth reveals that political involvement is pervasive in the banking system of Pakistan. He notes that:
The nationalized commercial banks and development financial institutions have made a few thousand families fabulously rich but made the rest of the population pay the price for their malfeasance. The cost of capital has become exorbitantly high and the access to credit has been so severely curtailed that legitimate businesses and enterprises are unable to carry out their productive activities or expand. No wonder, employment opportunities are shrinking and the ranks of the unemployed youth are swelling. The recruitment, postings and transfers in all government ministries, departments and corporations are largely made either in exchange for outright pecuniary favours or on purely political considerations. The result is that the government offices are saddled, barring some honourable exceptions, with incompetent and dishonest functionaries who are always trying to please their bosses or political masters while being completely oblivious to the grievances of the common man whom they are supposed to serve (Husain, 1998).
The Additional Auditor General of Pakistan while delivering his speech at the Association of Chartered Certified Accountants (ACCA) in Lahore admitted that corruption is widespread in Pakistan due to some flaws in the economic, social, political, and legal frameworks; resulting towards a loss of Rs. 500-600 billion to the treasury. He said, “We have developed a culture of tolerating corruption” whereas good governance and transparency are indispensable elements for sustainable and even-handed economic development. He laments Pakistan’s constant appearance on the list of most corrupt states in the world (Ahmed, 2009).
Husain argues that Pakistan harbours a “legalized corruption” which provides excuses to the members of national and provincial assemblies, secretaries, ministers and their associates for their corrupt practices. For example, corruption is encouraged in the shape of allocation of government housing to these elites at rates below the market value. This also includes distribution of permits and licenses without merit to their families and friends causing a huge loss to the public treasury. He added that due to this problem, our political system is a “plotocracy6” and not a democracy (Husain, 2010).
Another important issue of low wages for public servants was identified as a contributing factor for corrupt practices. There is an urgent need to transform the civil service including the revision of pay structure so that an average family may survive. The World Bank also identified political intervention as one of the root causes of the problems faced by Pakistan, echoing calls for reforms of the civil service (World Bank, 1998: 25).
3.0 Overview of Anti-Corruption Frameworks in Pakistan
In Pakistan, corruption not only engulfs the public servants but also other organs of state. Twelve different legal instruments have been enacted to deal with this problem. In recent years, public demands have been increased to deal with the issue of corruption which has resulted in assurances by the political leaders to tackle and punish those involved. In spite of the promises, not much has changed. The new institutional structure for the elimination of corruption is quite deficient in its performance due to the absence of a robust tribunal. There is consensus that Anti-Corruption Commissions failed to achieve their goals because the proper environment has never been provided (i.e. strong judicial set up, a clear consistent process and adoption of stringent measures to improve public servants’ accountability to the public) (World Bank 1998:25).
In Pakistan, various anti-corruption laws have been enforced by different regimes but an effective execution was always a key problem for the authorities. For example, the Prevention of Corruption Act 1947 passed by the British government was reinforced by the Public Representatives (Disqualification) Act of 1949 and the Elected Bodies (Disqualification) Ordinance of 1959. These laws were meant to purge dishonesty from the public service. But they were abused and ultimately used to victimize political opponents (Schultz, 2007: 153).
The Federal Investigation Agency (FIA) was established to tackle corruption. It was later replaced by Pakistan Special Police Establishment (PSPE) in 1975. The West Pakistan Anti-Corruption Establishment was set-up in 1961, which was subsequently split into provincial ACE’s after the dissolution of One Unit in 1970. The highly intricate procedural aspects and excessive political intervention transformed these bodies into unproductive organs as they were plagued with corruption and inefficiency. The Anti-Corruption Agencies (ACAs) not only failed to control this problem but they also became entangled in corruption. The pervasive corrupt practices in the anti-corruption agencies forced the government to establish the Inspection Commission. In 1997, ‘the Ehtesab Bureau’ was established to support the actions taken by the ‘Ehtesab Commission’.7 The Bureau was charged with investigation whereas the Commission was assigned the role of prosecution. In spite of having a very strong statute, the Bureau produced disappointing results because it was relentlessly used for political persecution. Therefore, public lost confidence in the Ehtesab Act 1997. Thus, the Ehtesab Bureau missed an opportunity to build a consistent and impartial system to eradicate immense corruption (GOP, 2002: 12).
The table below shows the anti-corruption agencies established so far in Pakistan.
Table 1.3 Anti-Corruption Agencies in Pakistan
Source: “the Nature of Corruption and Anti- Corruption Strategies in Pakistan”. http://www.article2.org/mainfile.php/0901/369/
The legal structure to deal with corruption comprises the Pakistan Penal Code, 1860 (PPC), the Prevention of Corruption Act, 1947 (PCA) and the National Accountability Ordinance, 1999 (NAO). The PCA covers various aspects of corruption and bribery whereas the NAO summarizes the power of the NAB. In September 2002, the NAO8 was again amended and it will remain applicable subsequent to the election of a fresh legislature. The main criticism leveled on the NAO is that considerable sections of public servants including the serving military officials and the Judiciary are excluded from its operation. Notwithstanding, President General Musharraf issued the NRO on October 5, 2007 that not only restricted the authority of the NAO but also shattered the process of anti-corruption in Pakistan.
The table below shows the anti-corruption legislations enacted to date in Pakistan.
Table 1.4 Anti-Corruption Legislations in Pakistan
Source: “The Nature of Corruption and Anti- Corruption Strategies in Pakistan”. Article 2 of the International Covenant on Civil and Political Rights, 9(1): 33-40. http://www.article2.org/mainfile.php/0901/369/
Under the leadership of Zulfiqar Ali Bhutto, founder of the PPP, the legislature of Pakistan passed a statute, the Representation of Peoples Act, 1976 on January 4, 1977. Article 42A of the Act clearly mentions that “every member shall…submit a statement of assets and liabilities of his own, his spouse and dependents annually to the (Election) Commission (of Pakistan)” and for that a specific form has been provided to disclose this information. Article 42A (2) of the Act supports the right of access to information and authorizes the Election Commission of Pakistan to publish these particulars and a copy of these documents can be acquired by paying a charge. Article 42A (3) speaks about its procedure and says that the Chief Election Commissioner “shall…notify the names of the members who fail to file statements of assets and liabilities within the period specified…and by an order direct that such member shall cease to function till such statement is submitted”.
However, it is surprising that no parliamentarian has ever been served such a warning ordering him to “cease to function”. Article 42A (4) states “where a member submits the statement of assets and liabilities…which is found to be false in material particulars, he may be proceeded against under Section 82 for committing the offence of corrupt practice.” Section 82 provides that “Any person guilty of corrupt practice shall be punishable with imprisonment for a term which may extend to three years, or with a fine which may extend to five thousand rupees, or with both.” It is also a distinct feature of Pakistani politics that since its promulgation, no parliamentarian has ever been penalized or charged for submitting a false statement of assets and liabilities under Article 42A (4). One of the major issues is that the access to information has not been given prime importance; the current Freedom of Information Ordinance (FOIO) 2002 of Pakistan does not provide sufficient access to information practices. It applies only to the federal government sectors whereas the provincial and local divisions along with private institutions are not in its jurisdiction. (CRSS, 2009: 2).
The federation of Pakistan has various procurement rules that apply nationally and within each of the four provinces and two territories. The national procurement practice of Pakistan has recently been restructured, following the passing the Public Procurement Regulatory Authority Ordinance 2002 and the Public Procurement Rules 2004 (PPR 2004), which are based on the UNCITRAL9 model law. The application of PPR 2004 extends to all procuring organizations of the national and regional governments. On the other hand, the Public Procurement Regulatory Authority (PPRA) is permitted to excuse the procurement of some item or group of items from the application of the regulations or some further law regulating public procurement. This regulatory structure allows individual procuring bodies to determine key regulations and strategies themselves as well as carry out public procurement. The PPRA oversees procurement and aims to administration, governance, accountability, transparency as well as the quality of public procurement of merchandise, works, and services. In addition, the PPRA has authority to examine the application of rules and regulations, strategies, and measures; suggest to the national government policy amendments and alteration to current rules and regulations; and recommend policies and organize moral principles and measures for public procurement. In order to improve transparency, the PPRA has established its own web site, where all invitations to bid or requests for tenders are publicised10 (ADB, 2006: 86).
The PPR 2004 further initiates means of tackling corruption. The law provides a complaint mechanism essential in identifying and preventing bribery in the public procurement in government and the judiciary. Judicial review should be preceded by an administrative review. The administrative review merely involves pronouncements made in the course of a tender and cannot question, for example, the decision of the procurement process or the pronouncement completed in arbitration measures except tendering. However, the procurement regulations have not provided any administrative review system. Every procurement organization lays down its own measures.11 The PPR 2004 authorize public access to information concerning awarded contracts in order to enhance public checks but on the other hand, measures of pre-qualification and ineligibility are still inaccessible (ADB, 2006: 88).
From the above, it may be seen that Pakistan has legislated very good accountability laws but their proper implementation has always been problematic. A few examples will serve to illustrate the ineffectiveness of the framework. In 2006, there was a rapid rise in the cost of sugar, which was deemed to have been manipulated by manufacturers. The NAB immediately took initiative and announced to expose the actions of cartel and tax evasion but afterwards the whole process subsided completely (Schultz, 2007: 152; TI, 2006). In reality, most of the ruling and opposition party ministers are the owners of sugar mills and there is a common perception that they politically influenced the NAB. Pakistan is a major producer of sugar but due to widespread corruption, people are forced to buy sugar at very high prices.
Pakistan Steel Mills12 is another corruption case which involved incidence of corruption in the process of privatization. The government was going to sell it to Russian, Saudi and Pakistani investors at the cheapest rates. The decision of the government was challenged in the Supreme Court who accepted the petition and cancelled the deal because the sitting government elites were through stealthy means earning enormous amounts of money. After this event, General Musharaf suspended the Chief Justice Iftikhar Muhammad Chaudhry, which further eroded public confidence in the battle against corruption. Since 2006, the people of Pakistan are skeptical about the initiatives taken by the government to resolve this issue. The Global Corruption Barometer of TI reveals some incredible facts about the level of corruption in Pakistan that 23 percent of people believe that the anti-corruption attempts of government are “not effective” whereas 27 percent believe that the government is not willing to eliminate this problem and a 10 percent declared the government to support corrupt practices intentionally (TI, 2006; Schultz, 2007: 152).
Other public accountability Institutions are the Auditor General’s (AG’s) Division, the Public Accounts Committee (PAC)13 and the office of Ombudsman. These public bodies are supposed to play a decisive role in upholding governmental accountability (GOP, 2002: 45).
The office of the Auditor General has significantly enhanced its investigative capabilities, but its reliance on the Ministry of Finance to allocate its budget implies that its independence may be compromised. Accusations of covert understanding between individual auditors and civil servants are also prevalent. The sluggish effects of the reports and its failure to inflict sanctions when the administrators overlook commands actually frustrate the Public Accounts Committee (PAC).
The office of the Ombudsman entertains and investigates complaints of administrative failure and in certain cases, may facilitate compensation. Generally, the primary function of this institution is to deal with the issues of lower level corruption and up to a certain extent play a significant role in reducing corrupt practices of civil servants. The office of Ombudsman, however, needs the cooperation of the authorities to execute its decisions (Schultz, 2007: 154).
In 2002, a National Anti-Corruption Plan was prepared and the National Accountability Bureau (NAB) as the implementation agency was provided with powers of investigation and prosecution to confront corruption. The NAB is the key anti-corruption institution of Pakistan and its foremost responsibility is to eradicate corruption through a holistic approach of responsiveness, deterrence and enforcement. It retrieves national assets stolen through corruption, abuse of authority and dishonest practices. It uses power under the National Accountability Ordinance 1999. It operational headquarter is in Islamabad and it has four regional branches in the provincial capitals and one at Rawalpindi.14 (NAB; Husain, 2007: 7). The major aim of this institution was to curb corruption in order to improve accountability, which worked well for almost six months. Unfortunately, the Bureau was used for victimization of political opponents during the tenure of General Musharraf.
Pakistan’s unstable political situation coupled with a weak judiciary and dysfunctional anti-corruption agencies have been the major obstacles in the battle against corruption. A notable point is that the anti-corruption trials have long been assumed to be unfair. It is a common practice that most of these trials are initiated against political opponents and junior grade public servants, whereas the actions of army officers have never been examined. Besides this, the National Reconciliation Ordinance 2007 has provided exemption from the previous corrupt practices and provided a safeguard to many civil servants and political leaders from trial. Since the NAB is under the administrative control of the army and the president who appoints its head, the occupants have mostly been ranked army officers. However, a notable aspect is that army officers and judges are exempt from its application. The consensus is that NAB was created for the persecution of rival political leaders and subordinate civil servants. The judiciary, army officials and coalition partners of the government have been granted ‘blanket immunity’ from investigative inquiry or any sort of accountability for their conduct. (Chene et al 2008: 1, 8).
The powers of NAB to deal with the matters relating to corruption, misappropriation, abuse of authority, fraud and unlawful enrichment originated from the National Accountability Ordinance. The NAO has come under heavy criticism partly because its mandate is very narrow as it excludes key officials from the army and the judiciary. The head of the NAB is fully authorized to discharge an accused because of “voluntary return” of assets acquired in the course of corruption, which is criticized on the basis that it is almost an exemption from punishment. The law of “plea bargain”15 granted to NAB has also been criticized as it is matter for the courts. The said ordinance granted power to detain the suspects without charges for 90 days. The law was overtly misused in its early days and many of the suspects were detained or confined for more than two year continuously, in spite of having no conclusive evidence against them (Schultz, 2007: 154-55).
The United Nations Convention against Corruption (UNCAC), adopted by the United Nations General Assembly on October 2003 shows a unanimous commitment of the international community to fight against corruption, penalize the culprits and recover possessions of unlawfully acquired money both nationally as well as globally. In 2007, Pakistan signed the UN Convention against Corruption (UNCAC) and was under obligation to make local anti-corruption laws compatible with the convention (Soofi, 2010: 1). The NAO Ordinance1999 of Pakistan is compatible with UNCAC but the underlying issue is its proper implementation as it is often used to victimize the political opponents.16
In Pakistan, internal political factors have hindered anti-corruption. There are various facets of corruption including extensive economic and political corruption in Pakistan. The two categories such as petty and grand corruption are rampant in the country and the people are forced to pay bribes in order to get access to basic necessities of life.
Transparency International Pakistan has contributed a lot in exposing corruption. The most unsettling aspect of corruption in Pakistan is that it has not only institutionalized but also given some ‘blanket immunity’ to influential people in society. It breeds underdevelopment by denying basic facilities to the people and creating social injustice, disparity and disappointment.
It has been identified that the access to information should be given prime importance in order to have transparent procedures in the institutions as the current Freedom of Information Ordinance (FOIO) 2002 does not provide sufficient access to information practices. Its jurisdiction must be extended to the provincial and local divisions along with private institutions. It also falls short of providing a broad definition of the term ‘information’ or ‘records’. Moreover, it places less responsibility on the public offices in widening access to information to all.
Finally, the problem of corruption cannot be resolved unless there is a strong political will to do so and in Pakistan this has been lacking. Regimes including military as well as civil have come in promising to end corruption and even introduced new machinery to deal with it. However, their attempts have been unsuccessful. This is either because they never intended to deal with corruption in the first place and have used the new machinery cynically to punish their opponents or they have not been able to cope with the forces which promote corruption and have been corrupted in the process. Thus while the legal machinery as well as the institutions to deal with corruption are important, real reforms will not take place in the absence of strong political will.
In case of Pakistan, the UNCAC can provide a strong basis to formulate a policy to deal with the issue of corruption in foreign banks and there is an urgent need to make compatible all the domestic anti-corruption laws with the convention.
ADB (2006) Curbing Corruption in Public Procurement in Asia and the Pacific. Michigan: Asian Development Bank
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1 Article 8 (1) (b) of the United Nations Convention against Transnational Organized Crime.
2 In the fourth century B.C, an Indian political expert Kautilya after thorough observation differentiated forty diverse behaviours that can allure the civil servants towards monetary dishonesty and identified various methods of accountability followed by punishments and incentives to avoid such actions (Sen, 1999: 275).
3 The military budget cannot be discussed in parliament and they have their own system of accountability.
4 The Chairman Transparency International of Pakistan (TIP).
5 On October 5, 2007, President General Musharraf promulgated the National Reconciliation Ordinance (NRO), which provided immunity to politicians, political workers and bureaucrats who were indicted of corruption, misappropriation, money laundering, murder and terrorism between January 1, 1986 and October 12, 1999, the period between two martial law regimes in Pakistan. On December 16, 2009, the Supreme Court of Pakistan took an important step by declaring this act of the President unconstitutional and without lawful authority (TIP, 2009).
th Dr. Ishrat Husain a renowned Pakistani banker and economist previously served as an economist in the World Bank in 1979. He also served as governor of the State Bank of Pakistan for almost six years (02/12/1999 to 01/12/2005). He worked for ‘National Commission on Government Reforms’ for the period of two years (2006-2008).
6 The term “Plotocracy” or “Qabza Group” is commonly used for land mafia which is backed by some parliamentarians, who occupy the government as well as private lands and pay a minute price as compared to the market price. In addition, the parliamentarians are awarded lands free of cost by housing societies.
7 In November 1996, a prospective key establishment, the ‘Ehtesab Commission’ was founded after some disappointments with the efficiency of current establishment charged with ensuring accountability of civil servants for their unlawful activities. This institution performed efficiently for the first six months and referred almost 64 cases to the High Court for alleged corruption. The formation of ‘Ehtesab Bureau’, which was directly liable to the Prime Minister and the elimination of the probing power of the Ehtesab Commission considerably, curtailed its effectiveness (World Bank, 1998: 27).
8 The National Accountability Ordinance 1999 (NAO) authorizes establishment of the National Accountability Bureau (NAB) in order to eliminate corruption and corrupt practices in various institutions of Pakistan. It consists of 37 sections which provide an effective system for the detection, investigation, prosecution and rapid removal of cases containing bribery, inappropriate use of power by the public officials. It includes the cases relating to the white collar criminals such as defaulters of commercial banks and monetary institutions. The jurisdiction of NAB has been extended to the whole of Pakistan and it is fully authorized to make efforts in order to implement strategies and measures to eradicate corruption at all levels in Pakistani society (NAB, 2013).
9 United Nations Commission on International Trade Law
10 The Public Procurement Regulatory Authority (PPRA) of Pakistan under Article 5 and 21of the PPRA Ordinance 2002 deals with the issues relating to “functions, powers” and “power to exempt” respectively.
11 The Public Procurement Regulatory Authority (PPRA) of Pakistan under Rule 48 and 49 of Public Procurement Rules 2004 deals with the issues relating to “Redressal of grievances by the procuring agency” and “Arbitration” respectively.
12 Constitution Petition No. 9 of 2006 & Civil Petition NOs. 345 & 394 of 2006.
13 The Public Accounts Committee is one of the constitutional bodies of the National Assembly of Pakistan. Under Article 171 of the Constitution of Pakistan 1973, the Report of the Auditor General (AG) concerning the financial records of the Pakistan shall be submitted to the President, who is responsible to send it to the Parliament. Then under Rule 177 (2) of the National Assembly of Pakistan that report shall be referred to the Public Accounts Committee. Under rule 201 (4) of the National Assembly of Pakistan, the committee may examine the expenses, “administration, delegated legislation, public petitions and policies of the Ministry concerned and its associated public bodies and may forward its report of findings and recommendations to the Ministry and the Ministry shall submits its reply to the Committee” (National Assembly of Pakistan, 2013).
14 The Preamble of National Accountability Ordinance No XVIII of 1999 of Pakistan
15 Under Rule 25 of the NAB Ordinance 1999, if the accused person voluntarily returns corruption money, the said ordinance does not fix any criminal liability on him afterwards.
16 See Footnote 9 and under 3.0 for further details.
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