Pakistan’s new ordinance for anti-graft body brings big credibility questions
By bringing in a new ordinance to amend the decades old National Accountability Ordinance (NAO), the PTI government has added more material to many controversies surrounding the accountability process in the country.
Ofcourse, one must bear in mind that the accountability of anyone by anyone at any time in Pakistan’s history has not been without allegations of partisanship, victimization and laws and institutions of accountability used by those in power for political ends. With this history in mind, one would be very careful about crafting a change in the laws or mandate of the institutions, if the objective was to keep the process of accountability fair, transparent and credible. This doesn’t seem to be the case when the President of Pakistan signed a new ordinance on October 12 with drastic changes in the authority of the National Accountability Bureau— a most dreaded institution— the tenure of its chairman and exclusion of so many categories of individuals and institutions from its scope of responsibility. For such a big change, the practice in democracies is to debate every piece of legislation openly at every possible forum and evolve a consensus between the government benches and the opposition parties-- but Pakistan is another kind of ‘democracy.’ It is true that the government kept talking of involving the opposition in reforming the accountability process, but at the end it decided to go it alone. Actually, the political atmosphere for the past three years has remained confrontational between the government and the opposition inside and outside the parliament, which is a big failure of the incumbents, as they have a bigger responsibility and greater political stake in seeking cooperation of the opposition.
The fact that an ordinance, not a law properly passed by the parliament, has been issued even when the session of national legislature could be called or the bill could wait for the next session, makes it flawed. It is defective politically as it has failed to take into consideration the other views on the amendments it has introduced, which many believe have changed the very character of the NAB.
There is a far reaching change in the area of jurisdiction of NAB that may please the current ruling political factions, bureaucracy and the community, but will make this vital national institution a toothless tiger.
Rasul Bakhsh Rais
Although the Constitution of Pakistan allows the President to issue an ordinance-- a law with a life span of six months after which either it has to be renewed or placed before the parliament-- such legal orders are viewed with suspicion. Naturally, the opposition is reading too much into political motives on the part of the government in bringing about major change, which cannot be dismissed as regular pattern of ‘opposition for the sake of opposition.’
Amending Section 6 of the NAO, the government can extend the tenure of the chairman of NAB that would mean second four-year term and even more, depending on how it might see the institution functioning. This change is more about the present chairman than anyone in the future that has kicked up a bit storm in the ranks of opposition and media. Justice (retd) Javed Iqbal has become a controversial figure though he was appointed by the mutual consent of the prime minister of the PMLN government and the opposition leader in the National Assembly. He is accused of selective accountability, keeping those associated with the PTI government off the hook. And getting an extension means he would be obliged to the powers that granted him years beyond his tenure, compromising impartiality. If done, it would give more political ammunition to the opposition to attack Imran Khan, and contending that there is a deep nexus between NAB and him. To give more political levers to the government, the ordinance has substantially raised the power of the NAB prosecutor general in advising the chairman to file or withdraw a reference against an accused.
There is a far reaching change in the area of jurisdiction of NAB that may please the current ruling political factions, bureaucracy and the community, but will make this vital national institution a toothless tiger. It excludes federal and provincial cabinets, businesses and collective decision-making of any official committee or subcommittee. A wide range of important national institutions, like the National Economic Council and central and provincial Development Working Parties would be out of limits. One wonders: who is left to be held accountable and for what? It has taken all private persons out of it, confining the law to public office holders.
There are three positives features that may make the consensus on it in the future a real possibility. First, accountability court can grant bail now to an accused. Second, it retains the provision of consultation between the prime minister and the leader of the opposition in appointing the chairman. Third, in case there is no agreement, a parliamentary committee will decide the matter. The real issues are credibility, transparency, impartiality and fairness of accountability. The ordinance rather than addressing this issue, adds more to them.
- Rasul Bakhsh Rais is Professor of Political Science in the Department of Humanities and Social Sciences, LUMS, Lahore. His latest book is “Islam, Ethnicity and Power Politics: Constructing Pakistan’s National Identity” (Oxford University Press, 2017). Twitter: @RasulRais