Fearing accountability

Chastisement of the National Accountability Bureau (NAB), by the Prime Minister earlier this week, raises fundamental questions about our institutions and culture of accountability, and its resistance by the political elite.

Accountability – institutional as well as personal – is a tough ideal to achieve in even the most egalitarian of societies. In countries where economic and social disparities are accepted as a cultural norm, accountability of institutions and powerful personalities (who are institutions in themselves) is a particularly impossible feat to accomplish. Despite rhetoric to the contrary, forces of status quo, and particularly those who are enjoying momentary stints of political power, view all moves towards accountability as an affront to their person as well as office.

In Pakistan, sadly, political elite has a history of not only resisting the process of accountability, but also turning institutions of accountability into tools for persecuting opponents. In this regard, the Ehtesab Bureau of 1990s, led by the notorious Saif-ur-Rehman, is now widely regarded as perhaps the most partisan institution in Pakistan’s checkered political history, which was mercilessly used, by the then PML(N) government to subdue opposition, and settle political scores.

In the aftermath of Ehtesab Bureau, when the NAB was created through section 6 of the National Accountability Bureau Ordinance, 1999, there was a feeling that finally an institution had been created that was truly independent and autonomous in (legal) character. Under the NAB Ordinance, the President “in consultation with the Leader of the House and Leader of the Opposition in the National Assembly”, appointed the Chairman, as an individual of such integrity and impartiality who would be acceptable to all stakeholders across the political isle. Also, a Chairman appointed for a term of four (non-extendible) years, could not be “removed except on the grounds of removal of Judge of Supreme Court of Pakistan.”

Once appointed, Chairman NAB, at least under the law, cannot be dictated to by the political government – it need only submit a “report of its affairs” to the President, at the end of each calendar year (Section 33-D). As a result, under the NAB Ordinance, the Chairman NAB, and his Bureau has the sole and exclusive jurisdiction to investigate and prosecute any and all persons who, in the opinion of the Chairman or his authorized representatives, have committed an offence enumerated under Section 9 of the NAB Ordinance. Neither the Prime Minister, nor anyone else, can interfere in or assume the powers or prerogative of NAB in this regard.

NAB’s jurisdiction to prosecute certain offences or corrupt practices, per Section 9 of the NAB Ordinance, are broad in nature. And NAB may solicit the help of any and all governmental agencies in the performance of its functions, as and when required. In exercise of these powers, even recently, we have seen NAB operations in Sindh reach out to some of the most taboo political personalities, and procure the help of Rangers from time to time. Not surprisingly, the PML(N) government, and in particular the Prime Minister, had no real cavil with NAB till such time that it was prosecuting members of PPP and MQM across Sindh; everyone must be held accountable, is what PML(N) had to say then.

All that changed, however, when NAB demonstrated the audacity to investigative PML(N) members in the heart of Punjab. And suddenly, there is talk of NAB’s jurisdiction being too broad, working beyond its envisioned contours. One would remember that even earlier, when NAB officials informed the honorable Supreme Court that certain powerful political elites, including the Chief Minster (Punjab) and the Federal Minister for Finance, are named in pending inquiries, the Chief Minister Punjab took the time to conduct an entire press conference, from his residence in Model Town, Lahore, highlighting how his family was not a loan defaulter, and in the process took jabs at NAB’s performance and credibility in prosecuting instances of public fraud and corruption.

These episodes require a deeper look into our culture and processes of accountability, especially as it relates to the political elite: How do we, as a society, view accountability in our political and financial transactions? How can such accountability be guaranteed in a system of partisan politics, through an ‘independent’ institution? What degree of autonomy must be provided to such an institution for it to work effectively? Should there be political oversight in the process? Can its employees, all of whom live and breathe within the government’s sphere of influence, withstand the pressures of the political elite? What changes, if any, need to be made to the existing structure of accountability for it to produce meaningful results?

At the very outset, it is important to impress upon the fact that NAB, despite all of its legislative and investigative powers, has underperformed the promise of its creation. And no one can be blamed for questioning the motives behind NAB inquiries, and a lack of convictions by the accountability Courts.

However, it is equally difficult to deny that the political elite has repeatedly attempted to use NAB as a device to victimize opponents, and sanctify their own actions. The very politicians who, while in opposition, were clamoring for greater independence of NAB authorities to institute investigations and cases against government officials, are now, having come into power, vociferously opposing such audacity by NAB officials. And somewhere between this political seesaw, we have managed to reduce NAB into a fumbling organization, that neither possesses the courage to stand up to the ruling party, nor the feebleness to entirely submit at the feet of the government. And this unsure approach to accountability has been made more uncertain by the constant interference of the honorable Supreme Court in the ongoing working of NAB, especially during the Iftikhar Chaudhary years.

The solution, in terms of creating an independent and effective accountability mechanism, rests with allowing NAB to conduct its operations without any interference from either the political or judicial seats of power. And this, in a realist sense, is a difficult task in a society where giving up power and influence is unheard of. Asking the political government or the honorable Court to not exert its influence in the operations of NAB equates to asking them to resist the allure of seemingly endless power.

Financial and political accountability, in a society as diverse as ours, is a herculean task, even in the best of circumstances. It becomes virtually impossible when subjected to the insatiable desire of control by competing branches of the State. And in the process, innovative methods of corruption are met with a weak structure of accountability, which is neither fair nor effective.

The only way for accountability to be meaningful in this land is to allow NAB to function as autonomously as possible within the ambit and sphere of its laws. A desire to control the process only succeeds in weakening it. And as a consequence, strengthens the legacy of corruption that has come to take center stage in our politics.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be contacted at saad@post.harvard.edu. Follow him on Twitter

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