Voluntary return of embezzled money launders corruption

Accountability and transparency are essentials of good governance. Governments in many countries have adopted various mechanisms in their bid to ensure those essentials.

In Pakistan, ways and means to enforce transparency include: Right to Access Information under Article 19A of the Constitution and Right of Information Acts in the provinces, besides advertisements issued from time to time to ensure equality of opportunities and fair competition for merit as well as press and media publications. And to ensure accountability, the methods adopted under the Constitutions are judicial review, internal and external audits, and public accounts committees.

The objective of maintaining accountability is to erase misuse of authority, guarantee financial discipline and optimum utilisation of resources, rule out wastage of resources, ensure that every penny spent is accounted for, and above all to eradicate corruption and corrupt practices. The termite of corruption eats into the very fabric of society. Today, Pakistan is on the brink of a financial disaster, mainly due to corruption.

Realising corruption as the one of the major evils, negating right and merit, the National Accountability Ordinance was introduced.

The preamble of the Law of Accountability provides for the setting up of a National Accountability Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto, therefore considers it expedient and necessary 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 and for matters connected and ancillary or incidental thereto. The preamble also proclaims that there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks, Financial Institutions, government and other agencies and that 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. In order to achieve the aforementioned aims and objectives National Accountability Bureau was set up.

Although some of provisions were declared draconian and against basic human rights, barring those provisions, the law is not bad. However the selective use of accountability and National Reconciliation Ordinance in favour of the ruling elite also dented its image.

The provisions of plea bargain and in particular voluntary return blunted the effectiveness of law and paved the way for more corruption. Allowing the officers to cling to their offices is diametrically opposite to Good Governance. By doing so, persons involved in corruption and corrupt practices take refuge under the said provision of law, and get scot free. To add insult to injury, the corrupt not only stay in service but also get promotions and coveted positions — even laundered as Mr Clean.

Tragically, as opposed to this, many are ignored for promotion merely on intelligence reports, not corroborated by any other material evidence.

In this context, evidently, a person making an application for voluntary return agrees to have committed corruption and corrupt practices and return of money earned through such means. Those acts fall within the definition of misconduct under the Efficiency and Discipline Rules, of the federation and the provinces.

This provision of law absolves a person from the stigma that anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or transaction in issue.

In this connection the Supreme Court while disposing of the suo motu case on the voluntary return under Section 25(a) in the NAB cases has held that no yardstick has been provided in the NAB Ordinance and the rules framed determining the amount of voluntary return. The Court stated that once an accused, who plundered colossal sums of money, deposited a portion of the amount, that too in instalments, stood discharged from all his liabilities in respect of the transaction and went back to join his job.

“This frequent exercise of powers of ‘voluntary return’ by the NAB chairman has in fact multiplied corruption on the one side and defeated the object of the NAB Ordinance on the other side,” according to the order. The court observed that the provisions of Section 25(a) were not meant to allow corrupt public servants to get a clean chit from NAB authorities by paying a portion of the embezzled money. “What is more shocking for us is that no departmental proceedings are initiated against any of such accused, who entered into voluntary return.”

Furthermore, Civil Servants (Efficiency and Discipline) Rules, 2020 framed there under section 25(1) of the Civil Servants Act, 1973 (LXXI of 1973), read with Notification No. S.R.O. No. 120(1)/1998, dated the 27^th day of February 1998, has under rule 2 sub rule (k) declared plea bargain under any law for the time being in force and return of the assets or gains acquired through corruption or corrupt practices, voluntarily as misconduct. Under the law, once corruption is proved, the only punishment is dismissal from service. In the case of plea bargain and voluntary return, due to availability of cogent evidence, there is no need for any inquiry. But, the question is: will the law of misconduct apply?

Published in The Express Tribune, March 15^th, 2023.

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