A Review of Anti-Corruption Laws In Pakistan

Pakistan’s fight against corruption started in 1947 immediately after its creation as a state. The first law passed by the constituent assembly of Pakistan was the Prevention of Corruption Act. Since then the country has passed a number of laws and established agencies to curb corruption. Some of the laws passed are
1. The prevention of Corruption Act 1947
2. The Public Representatives Disqualification Act 1949
3. The Elected Bodies Disqualification Ordinance 1958
4. The Ehtesab Act 1997
5. The National Accountability Bureau Ordinance 1999

The Prevention of Corruption Act was promulgated in 1947 did not create any special agency. The special police inherited from the colonial administration served as the enforcement instrument under this law. This special police was part and parcel of the district police force. More importantly this police did not have any kind of special resources at their disposal. Most of the time they had to rely upon the district police for availability of routine resources as offices and personnel. At the best it was a special branch of police under the same hierarchy. Hence there was no scope for independent action. This special police was merged into newly created Federal Investigating Agency in 1975. Secondly this law was limited to public servants in its scope. Definition of the misconduct was adopted from Pakistan Penal Code (Section 161) which defines misconduct as 'obtaining of any gratification as a motive for doing or forbearing to do any official act". However through a later amendment the definition was broadened to include possession of pecuniary resources disproportionate to one's known sources of income. As such the definition of corruption under this law was not much different from the definition by the recent laws. The only difference was that it was limited to public sector. This miss can be attributed to predominant nature of government sector at the time. Third important feature of the law was procedural. Anti-corruption establishment had to take permission from respective heads of departments before taking action against any public servant. At a time when public sector was facing severe shortage of trained staff due to dislocations caused by the partition it made sense to extend such sort of privilege to government officials. Moreover the anti- corruption officials themselves were no more credible than the alleged corrupt hence this prosecution sanction by the head of department was intended as a kind of check against high handedness and undue harassment by the anti-corruption establishment. But from the anti-corruption's point of view it amounted to asking the corrupt officials themselves for permission to prosecute them. This legal provision also shows the mind set of the law makers. Giving powers of sanction to the heads of departments means that only the low functionaries were perceived to be corrupt. What if the head of department himself was found corrupt? Even if the head of department was not corrupt it was natural for a head of department to try to protect his subordinates both on morale and reputation of the organization grounds. Fourthly the law did not provide for any civil society or democratic check. It was a corruption control against the public servants by the public servants. We tend to see this as a result of colonial mind set of superiority of public services and distrust of masses. This skepticism of civil society is ingrained in administrative culture of Pakistan inherited from colonial rulers. This miss can also be attributed to absence of an active and vocal civil society at the time. Fifthly the law did not make corruption a special crime. Corruption was seen as any other crime and same procedural law, Pakistan Criminal Procedure Code was applicable to corruption cases. Burden of proof was on the prosecuting agency. Sixthly there were no provisions for prevention or education. Corruption was not seen as a systemic failure but as behavioral problem with certain individuals. Hence anti-corruption was primarily seen as a matter of enforcement of law on some miscreant individuals. No organizational or structural reforms were thought as necessary to stop corruption. The law was used against petty officials but no big fish was caught. Lack of resources, selectivity, reliance on police and ignoring prevention can be distinguished as causes of failure of this anti-corruption effort. Despite its failure in creating big impact the law never attracted allegations of political victimization.

The Public Representatives Disqualifying Act and Elected Bodies Disqualification Ordinance promulgated by the first martial law government of General Ayub Khan (1958-69) are the most important trendsetters in history of anti-corruption efforts in Pakistan. The laws served the government's purpose to bring forward its own breed of crony politicians by disqualifying the prominent politicians. Real intent of the law becomes clear by the provision that prosecution could be avoided by agreeing not to take part in politics for 15 years. Almost 7000 politicians were banned form politics under the law. These laws initiated a pernicious trend of use of anti-corruption mechanism for achieving political goals. From now on political victimization became the hallmark of every subsequent anti- corruption effort. For makers of these laws corruption was not a problem with individuals but with all the political class and civil servants. Hence a purge of both the classes was necessary. This purgation was followed by a training campaign. A system of basic democracies was established which was to serve as training grounds for politicians. Similarly it was made compulsory for all the new entrants in Civil Superior Services to attend compulsory training courses at the Pakistan Military Academy. Seen in the light of its after affects this anti-corruption derive by military government became the best example of what Larmour (2006) calls "the cure is worse than the disease."

The third anti-corruption effort was made during the second Nawaz Sharif government (1996-1998). An Ehtesab Commission was set up under this act in 1996. This commission was supplemented by an Ehtsab Bureau in 1997. The Bureau assumed the function of investigation while the Commission carried on with the prosecution. One important feature of the law of 1996 was that it brought the highest public functionaries including the President and the Prime Minister under the ambit of anti-corruption law. These inclusions have great symbolic value despite the knowledge that no accountability agent would dare to initiate a proceeding against such higher official. The law created special benches comprising of the high court judges which were to hear these anti-corruption cases. These benches were to decide the cases in 30 days. Collective impact of the effort was negative because it became the best example of what John Heilbrunn (2004) calls "the worst cases, the commissions became tools to repress political rivals and members of opposition or previous governments become targets of investigation. The impact is to undermine political legitimacy further". The Bureau was headed by one of very close associates of the then Prime Minister. Former prime minister, her husband and their close associates were specially targeted. Most of the time a media campaign was started against the alleged corrupts even before filing the cases in the courts. This law and accountability mechanism established under it further discredited anti-corruption efforts. Anti-corruption became synonymous with the political victimization. Our analysis of past three anti-corruption efforts in Pakistan makes it clear that political use of anti-corruption laws, reliance on police, and lack of resources, in-comprehensive selective laws were the most prominent causes of failure of these efforts. Especially for the later too lack of political will was the key cause of failure.

The National Accountability Ordinance 1999 was promulgated by Mushraf regime. It repealed the Ehtsab Bureau Act 1996 and established a completely new agency by the name of National Accountability Bureau on the pattern of anti-corruption agencies in

Countries like Hong kong and Singapur. NAB ordinance broadened the definition of corruption still further to include "persons who maintain a living standard not commensurate with their known sources of income" (section- 9). The scope of agency was also broadened to include private sector. Other perceived lacunas in the earlier laws are also addressed to give the Bureau a very comprehensive legal backing. Most importantly the traditional doctrine of law which embodies the presumption of innocence of the accused was also changed in a bid to create an effective deterrence against corruption. It is now the accused's responsibility to prove his innocence. Remand law was also changed to give the bureau enhanced powers of investigation. Criminal procedure laws in Pakistan normally allow a maximum of 14 days remand of accused to custody of the investigating agencies but in this case the remand period was enhanced to 90 days. There is important change in the mission of the agency too as compared to earlier laws and agencies. The agency has adopted a three pronged strategy for elimination of corruption: awareness, prevention and enforcement. The strategy draws on contemporary approaches to corruption and anti- corruption. Alan Doig (1998) describes these approaches as economic analysis, civic culture perspective, and institutional viewpoint.

The organization is completely independent in its working. Chairman NAB after his posting by the President can only be removed by the supreme judicial council. The procedure of removal for Chairman NAB is same as for a judge of the Supreme Court of Pakistan. The law only makes it compulsory for the agency to produce an annual report and present it to the president. The agency is armed with both the powers of investigation and prosecution. Special anti-corruption courts were also created under the same law to ensure speedy trial. Agency has no budgetary constraints. Annual report tells that agency is unable to use all the funds supplied. But despite all these advantages "Corruption and inefficiency remain acute" (Country Report on Human Right Practices 2003). This failure is widely recognized both within and outside the agency. "The anti-corruption strategy, which is largely based on administrative measures and prosecution and trial of corrupt officers, has failed to produce any significant results" (Ali 2006).

Anti-corruption efforts in Pakistan had to face worst legitimacy crisis in history of Pakistan after promulgation of the National Reconciliation Ordinance. Although the law was not legitimized by the national assembly yet it hit the anti-corruption agency severely. Efforts to promulgate new anti-corruption law also failed due to disagreement between government and opposition.