NAB and civil servants’ accountability

Ahad Cheema’s arrest by the National Accountability Bureau (NAB) has stirred a public controversy. His photograph taken behind bars has become a media sensation, with news channels flashing it every hour and social media rife with its multiple versions. It is however important not to lose objectivity, as this incident has raised many pertinent questions, including the role of media, efficacy of the NAB law and the wider implications for civil service.

The first one is simple. Media trial not only tarnishes the image of an individual and creates embarrassment for his family but also generates untoward public pressure. The overnight loss of reputation is a penalty in itself, which in no way should be imposed before the decision of the case. This holds true for Ahad Cheema and for multiple civil servants, politicians and businessmen accused of corruption before him. This also holds true for businesses that get impacted by food authorities and other regulators and end up spending millions of rupees in advertisements to regain their lost reputation.

The second issue relates to the NAB Ordinance itself, which has been the subject of criticism in the recent past. An independent, resourceful, powerful, incorruptible and politically impartial anti-corruption agency is central to control of corruption. But such independence should come with due controls. In Pakistan, the NAB Ordinance 1999 does empower the agency but without adequate oversight. For instance, the law gives vast discretion to the NAB chairman to arrest and release an accused and even take suo-motu notice. The law also excludes jurisdiction of other agencies if NAB is investigating a case and used to bar any court to grant bail, with latter being struck down by the Supreme Court in the Asfandyar Wali case. The law even puts prosecution under NAB’s control.

While NAB needs to have teeth, such wide-ranging powers should be subjected to some rules or procedures to maintain impartiality and to ensure that justice is not only done but is also seen to be done. In the UK for instance, no proceeding for an offence can be instituted under the Bribery Act of 2010 without the consent of director of public prosecutions, to clearly demarcate and differentiate the roles of investigator and prosecutor. Similarly, many countries have put in place parliament and citizens oversight mechanisms to ensure impartiality of the anti-corruption agencies.

It is also important to draw a line between corruption and financial irregularity or administrative violation. Even if one has committed an irregularity, it will not essentially be corruption unless it’s wilful and the accused has benefited himself or someone else. Conversely, one could commit corruption without any irregularity by giving benefit through a lawful act, in return for some favour. It is therefore important for the investigation agency to provide evidence on linking the two.

Interestingly, however, under the NAB Ordinance, proving this link is not necessary. Even if the accused cannot satisfactorily account for his assets, this will create presumption of corruption and is adequate to convict. In an undocumented economy like Pakistan, where under-invoicing property transactions are a norm and non-declaration of income is commonplace, such presumptions can be gravely misused. Even in an extensively documented economy like the UK, such a provision was introduced only last year and that too beyond a certain threshold. There is therefore a need to look at the NAB law with these considerations and make it more suitable to Pakistan’s context with due checks and oversight mechanisms.

Lastly, comes the plight of civil servants. The issue of Ahad Cheema relates less to corruption in question and more to his assumed political affiliation. There are multiple civil servants with a checkered reputation, who are roaming scot-free, merely because they are not seen to be politically aligned and hence operate outside the radar. It also boils down to absence of an objective placement and transfer policy, tenure security and constitutional protection, without which civil servants often find themselves at the mercy of political bosses and vulnerable to allegations of partiality.

More than ever before, civil servants now face complex challenges for which they were never prepared. They are expected to undertake complex projects and procurements, complete projects in record time and take decisions involving billions of rupees, while fearing reputational threats, inquiries and corruption cases. They are damned if they do and damned if they don’t.

Without addressing such structural issues, the system is in fact incentivising civil servants not to work. After all, all these laws are there to penalise acts of commission and not omission and one could ‘honourably’ survive a lifetime in bureaucracy, without doing any significant work or making any decisions, while keeping a safe distance from any controversy that could ever implicate him.

Published in The Express Tribune, February 27^th, 2018.

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