Accountability Gone Berserk
Ayesha Siddiqa argues that a cry for accountability, while being important, ultimately ends in a dead-end street. In Pakistan’s case, slogan for accountability comes to nothing because the state has little capacity and breathing space to fight critical mafias or ruling groups as the latter have power to starve the state.
On December 27, 2019 the Imran Khan government watered down National Accountability Ordinance 1999 (NAO 1999) through a presidential ordinance to bolster confidence amongst the bureaucracy and business community. Indubitably, this is one of the many u-turns of the prime minister but it is also indicative of his inability to launch a frontal attack against corruption. Perhaps, it cannot be done when the state is economically weak and dependent on internal and external players that control resources. Moreover, an about turn becomes inevitable when the accountability process and system suffers from flaws. The Khan government is not the first one to have balked in the face of opposition to the accountability process nor will it be the last.
The Presidential ordinance proposes eleven changes in NAO-99:
- NAB to only investigate cases over PKR 500 million
- Investigation not to pursue relatives of under-investigation public office holder
- NAB to not hold inquiry into matters pertaining to taxation and other levies with ongoing cases to be transferred to relevant authorities
- Ongoing trials in NAB under such cases to be transferred to criminal courts
- NAB not to initiate inquiry in cases pertaining to procedural lapses until there is evidence of the accused having benefited from it financially
- Misuse of authority not to be deemed as corruption unless evidence of material gain
- NAB not to issue public statement as long as the inquiry is pending
- NAB to get remand for 14 instead of 90 days
- Mandatory for NAB to complete an inquiry in 6 months
- NAB barred from opening an inquiry once completed
- Establishing a 6-member committee to undertake scrutiny of cases before initiation of inquiry.
While some of the changes such as making it mandatory for NAB to finish an inquiry in 6 months is logical, it is worth noting that reduction of the period of remand from 90 to 14 days was already there. In fact, it was in 2002 that the NAO 1999 was amended, and period was reduced due to Supreme Court’s order in the case of Asfandyar Wali Khan vs. Government of Pakistan.
Prime Minister Imran Khan justified the above-mentioned change as means to “insulate the business community”, which he believes would now take his government more seriously and cooperate in paying taxes and investing in the country. It would also address some of the concerns of the civil bureaucracy where both the corrupt and honest were rattled by how NAO 1999 was being used since 2018. The accountability organization did not have the ability to separate wheat from chaff or ensure that public money was protected while not hurting innocent people. Since the beginning of 2010, NAB spent more time propagating its inquiries and exposing its targets without really arriving at a conclusion. “Can you imagine the personal loss?” asked a civil servant friend. “While it is an endless inquiry by NAB it ruins officers socially even to the extent of damaging marriages of our children”.
Surely, such cries were not what motivated the government. After all, the main mantra of the ruling party was to fight corruption, especially retrieve money looted, especially funds laundered by politicians and others abroad. Besides saving questionable projects undertaken in Khyber-Pakhtunkhwa from accountability, the proposed amendment is meant to save many others. Changes such as not re-opening investigations indicate an intention to protect recent settlement with real estate tycoon Malik Riaz in which Pakistan has received Pounds Sterling 190 million recovered from Riaz by the British National Crime Authority (NCA). The investigation was conducted on request from Pakistan’s accountability Tsar Shehzad Akbar. Though the intention was to track companies and monies of the sons of Mian Nawaz Sharif, it inadvertently led to Malik Riaz’s stash. The case against Riaz was pursued under UK’s Crime Finance Act 2017 and not under the Proceeds of Crime Act 2002. This means that the money will not be investigated again either in the UK or in Pakistan. It seems that some of the changes are to legitimize, what looks like, a closed-door agreement amongst Islamabad, London, and the business tycoon. Possibly, Malik Riaz will remain safe and this particular angle may not come under lot of criticism even if the case is presented in the Parliament, which must debate and approve provisions of the said ordinance for this to become part of the existing accountability law, or else it will lapse in four months.
Most likely, all parties will be eager to save Riaz, who being the ultimate pragmatist in Pakistan, has links in all political parties, state bureaucracies, judiciary, religious clergy and the media. From hiring retired generals and bureaucrats, gifting palatial houses to the Pakistan People’s Party leadership to giving expensive presents to television anchors and police officers, housing the Lal Masjid brigade in Bahria town, and opening langars (free food joints) at strategic points in the country – Riaz has his hand on almost everyone’s pulse. Furthermore, why would any political party challenge him or changes in NAO 1999 when this is what they had wanted all along?
However, the proposed changes in the NAB law are indicative of a much larger problem – the lack of interest amongst all elite groups across the board – to protect public money and national resources from pillage. Since the idea was first floated officially during the 1980s, anti-corruption is more of a tool to harness political opponents than eradicating corruption, or a tune played to allure the general public. Over years, rent seeking has become engrained in the administrative, political and social culture of the state and society.
Corruption is vile wherever it happens in the world. It is being protested in many countries of the world – from Latin America to the Middle East – because unable to reap benefits from any kind of political ideology, ordinary people have begun to see how ideologies and political party system is used to re-enforce kleptocratic re-distribution of resources rather than anything else. Corruption limits opportunities for the general public that need to move ahead in an otherwise competitive environment.
But establishing complex organizations in itself is not any indicator of intent to eradicate corruption. Pakistan has witnessed many anti-corruption organizations being made with no intent to perform. In societies where rent seeking becomes socially well-entrenched, accountability infrastructures tend to represent corruption rather than a source for its elimination. Accountability and lack of accountability are then bound in a cyclic relationship. This happens particularly in closed economic systems where rent seeking is prevalent as a method for sustaining old elite and creating new ones.
So, a cry for accountability, while being important, ultimately ends in a dead-end street. In Pakistan’s case, slogan for accountability comes to nothing because the state has little capacity and breathing space to fight critical mafias or ruling groups as the latter have power to starve the state. This is something that the architects of the National Accountability Bureau realized soon after they gave birth to the institution.
NAB was truncated from its very birth. Had Imran Khan’s accountability Tsar Shehzad Akbar tutored the prime minister in the Bureau’s history, the former may not have ventured on making ambitious plans about eradicating corruption. What Khan announced on December 27th may well have been the plan from the first day he took over the government.
In 1999, the military government of Pervez Musharraf embarked upon an elaborate design to eradicate corruption. The military being an organization dependent on state resources was keen on adding to the resource pool by recovering stolen wealth. At that time, human resources from all parts of the state – both civil and military – were combined to create NAB and write the NAO 1999.
I remember meeting some of the civil bureaucrats during that time, who were passionate about what they planned to achieve. The military high command unanimously selected Lt. General Amjad to become the Chairman NAB. Despite the NAO 1999 was unjustly skewed in favor of judges and generals as it barred investigation of serving military and judiciary, Amjad and his team made a list of over 150 people to be targeted for corruption investigation that included politicians, senior bureaucrats, numerous high-ranking military officers, and media owners. Amjad was eager to investigate numerous retired military officers and their families. Names such as Air Chief Marshal (retd) Anwar Shamim, Brig. (retd) Imtiaz, (late) Lt. General Fazl-e-Haq, Air Chief Marshal (retd) Abbas Khattak and Hamayun Akhtar Khan s/o Lt. General Akhtar Abdul Rehman were part of NAB’s investigation plan. This list, notwithstanding, the real focus during the early days and during the course of NAB were politicians and bureaucrats. For instance, from 1999-2004 the bulk of the cases were against bureaucrats and politicians versus the least amount against retired military personnel (see table).
|National Accountability Performace, 1999 – 2004|
|Targets||Authorized Inquiries||Completed||Closed||Under Investigation|
But General Amjad soon realized that he would not be allowed to perform which is why he requested in August 2000, months after he had created the accountability machinery, to be relieved of the position. Not just retired generals but many key businessmen were let off the hook. The US-based Pakistani author Hassan Abbas’s book ‘Pakistan’s Drift to Extremism’ is worth a re-visit for information regarding his years at NAB where he served as staff officer to General Amjad. It is one of the most authentic accounts of what happened to the Bureau in its early years. Even before Amjad realized his limitation, Pervez Musharraf saw the writing on the wall. It was before American money started to flow in. Musharraf realized that brutal accountability would generate equally harsh results for the regime. According to Hassan Abbas:
“Musharraf had a made a clear choice – he would compromise with those politicians who were ready to side with him. He had given in to the building pressure from various sectors that wanted the regime to behave ‘normally’ and not as a revolutionary one”.
The general had four limitations. First, Amjad’s boss Musharraf realized that many of the big business whose names were on the target list had the potential to starve the country. In 1999, faced with issues of flight of capital that happened because of the political government taking over foreign currency accounts of people after the atomic tests of 1998 and American embargo, further flight of capital may have almost bankrupted the state. Musharraf’s own support base the military, which was dependent upon state resources, would have suffered that would have made the army chief highly unpopular.
Second, politicians could not be imprisoned for long without cases being proven against them for which NAB lacked capacity. Despite the organization’s diverse human resource pool collected during the early days from all departments of the state including the ISI, it lacked a fully honed capacity at forensic audit. The only experience of success the organization had depended upon intelligence agencies hounding people into surrendering money whether there was clear proof that it was ill-gotten or not. Moreover, given resource limitations, General Amjad jumped at the first opportunity to hire foreign companies that could investigate, locate and retrieve money abroad. Many years later the company, Broadsheet sued the government for conspiring to deprive it of its share of 20 percent in what was recovered by NAB domestically or internationally.
Though the Bureau contests the claim as only applying to foreign recoveries, the case indicates either deliberate or inadvertent loophole left in the contract by the then prosecutor-general, Farouk Adam Khan, who was also a retired military officer hired by Amjad. NAB owes the company more than US$ 30 million. Most of the recovery made during those early days by NAB was through voluntary return or plea bargain (in 2004 NAB obtained PKR 930.752) from mid-ranking government servants.
Third, Musharraf made politically expedient arrangements without consulting NAB such as sending the entire Sharif family that was named in the NAB target list into exile to Saudi Arabia under a secret deal. Later, he withdrew cases in Swiss Courts against Benazir Bhutto and her husband Asif Ali Zardari that were close to conclusion because of the NRO negotiated through the British and American governments. Finally, cases were withdrawn against people that were required by the military government as partners. For instance, NAB and foreign investigators were asked to stop pursuing cases against Aftab Sherpao, who joined the Musharraf government. Similarly, NAB was not forthcoming in arresting Amir Lodhi who was nominated in the corruption scandal of the French Agosta 90-B submarines. It was twice that he was allowed to escape from Monaco. His sister was made Pakistan’s ambassador to the US during that critical period.
NAB’s Early Days
In any case, with Amjad’s departure NAB started to leak energy. He was replaced with Lt. General Khalid Maqbool, who, according to Hassan Abbas, did not enjoy a level of reputation of integrity in the army as his predecessor. Maqbool’s successor’s successor Lt. General (retd) Shahid Aziz, wrote in his book that during his period as Chairman (2005-07), Musharraf instructed him not to proceed against prominent people. The then Prime Minister Shaukat Aziz often blocked anti-corruption cases against businessmen. Therefore, NAB’s only use was tactical – scare Musharraf’s opponents, particularly from the opposition parties to surrender into supporting the general and his policies.
Even less significant members of parliament were often reminded about NAB. This was done especially when support was needed to get votes for Musharraf’s presidential referendum in 2002.
After Musharraf’s departure in 2008 and subsequent ascendancy of the PPP to power little was done to change NAO-99 or jettison NAB. This was mainly because NAO-99 was protected constitutionally in September 2002 by being incorporated in the 6th schedule of the constitution through the 17th amendment to the 1973 Constitution that provided inbuilt safeguards against any changes in the accountability law without the president’s consent. The PPP did not even try to launch a counter-narrative because, like the PML-N, it had contributed to the anti-corruption narrative during the 1990s.
It was during the decade that the NAB annual report 2001 mentions as the ‘notorious nineties’ that the two main political parties had instituted legal cases against each other’s corruption. Asif Ali Zardari, who earned the title of Mr. 10 percent, was kept in jail during some of the period. The PML-N government made Ehtasab Cell in 1996 that was upgraded to the Ehtasab Bureau through the Ehtasab Law 1997. Hence, closing down NAB would have appeared scandalous. A timid effort to propose changes in the NAB law was made in late 2009. The federal law minister Farouq Naik proposed a draft law that would allow NAB to only investigate cases above PKR 50 million, exclude decisions made in good faith, and make corruption a bailable offense. However, the PPP government did not get help from the PML-N that was then busy providing underhand support to the military against the ruling party.
Opposing PPP’s proposals by the PML-N or the PTI was for political traction rather than concern for accountability. Neither of the two parties heeded cries for help to block the PPP Prime Minister Yusuf Raza Gillani’s nomination of Akhtar Buland Rana, a man of dubious credentials to the position of the Auditor-General of Pakistan, an organization equally important for accountability of public funds.
However, once in power, the PML-N government also tried to change. Therefore, a Parliamentary Committee was constituted in 2016 headed by Law Minister Zahid Hamid. The PPP was represented by Senator Farhatullah Babur who proposed changes in scope of accountability to include ‘anyone that draws pay from the exchequer/taxpayers’. This meant expanding the scope to include judiciary and military. The proposal was shot down as the PPP distanced itself from its own nominee. Farhatullah Babur resigned from the position thereafter.
Despite the above efforts, the main political parties had lost interest in NAB, especially after the regime change in 2008. While the Justice Iftikhar Hussain Chaudhry-led judiciary became center stage, NAB became peripheral with battles only limited to the selection of its chairman. Naveed Ahsan, the chairman appointed in July 2007 quit over the issue of pressure from the Supreme Court on not writing letter to the Swiss courts for pursuing the case against President Zardari. Later, the appointment of Justice (retd) Deedar Hussain Shah in October 2010 was annulled by the Supreme Court on being challenged by the PML-N. Finally, in October 2011, the PPP government appointed Admiral (retd) Fasih Bokhari as the new chief, who had good communication with both parties.
By then, NAB’s corridors reverberated with Malik Riaz’s influence. The heads of various units in the organizations had direct links with the real estate tycoon. There were even rumors that while none of the two key parties had ownership of Chairman NAB, his selection was done at Malik Riaz’s behest. News was published in an Urdu daily reporting Bokhari’s secret visit to Riaz’s residence in Islamabad in an official car that he had driven himself. Moreover, during his tenure as Chairman NAB, Bokhari’s daughters were employed by Riaz in Bahria Foundation. With these multiple influences, NAB did not move an inch against cases involving retired military or political party leaders. During this period, NAB did not initiate an inquiry against DHA extension scam in Rawalpindi despite concerned officers provided evidence by Colonel (retd) Kamal.
The case involved both General Kiyani’s brothers and Malik Riaz. However, as a bureaucratic organization the Bureau continued to expand. Fasih Bokhari was eventually removed in 2013 by the Supreme Court and the position filled by a retired bureaucrat Qamar Zaman Chaudhry. Though controversial he completed his tenure and was replaced with Justice (retd) Javed Iqbal.
Since its creation, the National Accountability Bureau has been nothing but controversial because of successive governments trying to either use it against opponents or neutralize its capacity as a watchdog. Besides nabbing minor offenders, it is unable to catch bigger thieves mainly because it was never administratively independent. The Bureau is an attached department of the Ministry of Law that needs to have an independent budget and better rules for selection of Chairman and governance in general. Incidentally, the two key constitutional positions dealing with accountability that are mentioned in the Constitution – Chairman NAB and the Auditor-General – there is no specific outline for qualification of heads of these organization or emphasis on character of the office holders. It would be a better idea if a Parliamentary committee would interview the candidates and question their expertise before making a choice.
Another problem NAB developed pertained to its mentality of policing every activity and harassing individuals and institutions rather than producing cogent results. I remember sitting through board meetings as officers would bring any case to the table even if the organization did not have the capability to do so. From opening PIA’s procurement plans to looking into mobile companies, NAB felt empowered to look into every corner of the government. In 2012, Chairman NAB Fasih Bokhari claimed Pakistan was losing PKR 7 billion rupees per day, an estimate not made on the basis of any scientific methodology. But the figure was meant to scare the public and building constituency for NAB operations.
The policing was done without keeping into account its human resource potential or the problems it could create. For instance, since government departments are required to send information regarding every tender over PKR 50 million, any intervention could create bottlenecks. An even more problematic issue pertains to checking corruption in NAB. While there are some administrative rules for the purpose, there is no option for redressal against highhandedness of NAB employs. In fact, reports against senior directors were discarded.
If the intention is to have an accountable system of governance a healthy and capable watchdog organization must be accompanied with strong regulatory frameworks that are connected with an anti-corruption system. Unless the overall decision-making is made more accountable, an anti-corruption drive will go around in circles with no results. More importantly, we need to know if we are even ready for accountability.