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NAB and related governance issues

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Published in The News International on September 30, 2008:

The government has decided to repeal the National Accountability Ordinance 1999, and has drafted a bill to legislate for an alternative accountability mechanism; with the promulgation of these statutes, the National Accountability Bureau (NAB), Pakistan’s apex agency mandated in an anti-corruption role will be replaced by an alternative accountability body. The draft bill is not in the public domain and cannot be commented upon and the shortcomings of the earlier Ordinance have not been publicly debated. Notwithstanding, an opinion is offered as this clearly, can be an opportunity to address current weaknesses in the country’s anti corruption institutional mechanisms and legal system.

Within this context, the objective of this opinion is threefold: first to contextualize NAB’s niche in the broader remit of institutional arrangements that are of relevance of anti corruption reform. Secondly, to comment on the need for other statutes that need to be promulgated in tandem with an accountability law. Thirdly and most importantly, to draw attention to other broader measures and sectoral approaches in public sector reform, which have a bearing on addressing corruption and to outline the role of other actors in this regard.

First, with reference to institutional arrangements, NAB is primarily mandated in an investigative anti-corruption role, as will the new agency be. In any comprehensive anti corruption framework however, this should be supplemented by institutional pathways for public redressal and mechanisms for institutional oversight. In Pakistan’s landscape, the former is the Ombudsman’s office and the latter are the Public Accounts Committee of the Parliament and the Office of the Auditor General. It is logical therefore that alongside measures to reform the investigative arm, weaknesses in other key institutions are also analyzed and addressed in tandem, if the intent is to fight corruption. In this regard, election of the leader of opposition as Chairman of the Public Accounts Committee on September 19 is a positive step; it is hoped that it will lead to impartial outcomes; it is also hoped that other gaps in institutional arrangements such as the Ombudsman’s lack of mandate to take up corruption cases will also be carefully reviewed.

As far as the new investigative agency is concerned, in order for it to carve out a role for itself as an agency, which brings public value, structural and substantive efforts are needed that go beyond change of name, and prosecutorial reporting relationships to mechanisms that make governance of the agency transparent, impartial, independent and free from the danger of being maneuvered. International standards as outlined in Article 36 of the United Nations Convention Against Corruption (UNCAC) require necessary independence and autonomy to be ensured for any anti corruption authority so that the agency can carry out its functions effectively and be free from undue pressure. In this regard, the statutory status of the institution, appointments and dismissal procedures for directors and other senior posts, independence of investigation and possibility of direct communication with the mass media assume importance. Without enabling an autonomous and independent status, any change is not going to be effective and it is hoped that as the new bill evolves, it will be sensitive to these considerations. In addition, it is also hoped that the new law also pays due attention to setting norms and standards from ethical, moral, procedural and intellectual aspects within the ambit of anti-corruption reform.

Secondly, whereas the focus on the National Accountability Ordinance (NAO) as a legal basis to reform the apex anti corruption body in the country is justified, there is also the need to review the broader legislative agenda for transparency promoting reform. Attention is needed to improve criminal codes and review laws relevant to the judiciary itself. Pakistan does not have laws relevant to white collar economic sabotage and explicit whistle blower protection laws; the latter are needed to enable and encourage citizens to come forward to law enforcing agencies to report on corruption incidences. In the same vein, freedom of information (FOI) statutes are critical; here it must be clarified that FOI statutes are not about media freedom, but have to do with access to information and disclosure which can enable public discourse in larger national interest on issues of governance. The present government intents to repeal/amend the FOI statutes, 2002; it is hoped that the new law will bring greater value to disclosure and access to information.

Thirdly, it is important to view anti corruption reform in its broader scope. Historically speaking, Pakistan adopted the punitive, investigative and sanctions-oriented approach to corruption since the inception of anti-corruption work many decades ago. However, earlier police like investigative agencies fell prey to corruption themselves and NAB created later was, perhaps inadvertently, but inherently directed against political opponents in some cases; additionally, despite its successes in asset recovery, it was perceived by some as pursuing a controversial agenda with reference to plea bargains. The objective of new statutes, in addition to the previously mentioned attributes, should therefore be to remedy these weaknesses and place greater emphasis on prevention, awareness creation, technical coordination and implicit transparency promoting measures.

Alongside these measures it is important to view anti corruption reform in a holistic context of state/public sector reform. Such a systemic reform can have many sectoral characteristics involving many actors within the public and private sectors; it can include public financial management, civil service reform, reform of the judiciary and the legal system, decentralization of government, reform of public procurement and contracting, strengthening audit systems and revenue collection, and other related areas. Reform of the judiciary is particularly relevant in this case, given that under the new statutes, NAB courts will be placed under high courts.

In most areas, some work is already in the pipeline in Pakistan, supported by several international official development agencies. Projects to Improve Financial Reporting and Auditing (PIFRA), work of the National Commission of Government Reform (NCGR), the Access to Justice project of Asian Development Bank, the Devolution of Government initiative of 2001, the e-Governance initiative, automation of CBR, electronic procurement reforms and establishment of the Public Procurement Regulatory Authority, reform initiatives of Public Service Commissions, strengthening of regulatory agencies, examples of market harnessing means of regulation in the social sector, etc., are some of the examples of systemic reform of governance in various stages of implementation and in some cases, they have stalled.

It is therefore important to develop a broad-based national agenda for systemic reform incorporating all these and other relevant aspects of state reform with the consensus of all the political actors, the civil society, development partners and of course the government. Every political party should sign up to owning the agenda during their envisaged term in office so that reform is sustained overtime regardless of who assumes office. This should be one of our medium to long term priorities.

However in the short term, the immediate item on the agenda is modification of existing statutes; here as a first step, shortcomings of the existing NAO 1999 should be identified; as a next step it should be ensured that the new law is fully compliant with the covenants of UNCAC, which Pakistan is a signatory to and has ratified on August 31, 2007.

It is in the interest of any government to tackle the menace of corruption not only because it retards economic and social development but also because it is one of the leading causes of government instability and can attack the foundation of democratic institutions by distorting electoral processes and perverting the rule of law. Without a strategic approach to transparency building reforms, the social and economic costs of corruption will keep escalating and will continue to take an irreparable toll in an environment that is crippled with the weight of the many existing international and domestic crises.

The author is the Founder President of the NGO thinktank, Heartfile. E mail sania@heartfile.org

Democracy and governance – upstream determinants

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Published in The News International on September 08, 2008:

With the conclusion of presidential elections, the power configuration within the state has been defined. ‘Majority rule’ or ‘a few ruling with the consent of many’, described by the Greeks centuries ago, as a characteristic feature of democracy has been established within Pakistan and constitutional stipulations as articulated in Part III of the Constitution with reference to its Chapters on the President and Majlis-e-Shoora (Parliament) have been adhered to. At this stage, let us be reminded that while democracy, as understood conventionally is a necessary condition for a good government, it is certainly not a sufficient condition. This comment is intended to objectively draw attention to other characteristics that need to be woven into the equation in order to enable democratically elected governments to successfully navigate the ship of the state.

Democracy is not just about ‘majority rule'; it is an amalgamation of many attributes. First, it is a set of institutional arrangements or constitutional devices; by this measure, Pakistan has achieved a democratic milestone. However, there are other institutional democratic practices and doctrines of government, which merit close attention. Under parliamentary democracy and the Constitution of Pakistan (Part III, Chapter 3), government is meant to be exercised by delegation to the executive but it is also meant to be subject to ongoing review, checks and balances by the Parliament. In this regard, constitutional restraints upon the elected government assume great importance. It is in the interest of the government to consciously inculcate objective checks and balances in its institutional norms as majority rule without checks is likely to be abused, as has been witnessed in the past.

Secondly, democracy is also about individual behavior; practices of openness and collective deliberations, consensus-building, participation and evidence-based decision-making are attributes of individual behavior highly valued in public offices and ones that must be well institutionalized. The third and most important feature is a set of democratic values. Democracy as a value is closely related to liberty, equality, freedom and rights. Governments need to be democratic not just in institutional but also in a social sense with attention to individual liberties, human rights, equitable economic progress and social justice.
It is relevant to note here that many attributes of democracy are deeply interlinked with principles of good governance. It is only when decision makers conform their behaviors with values common to both – fairness, transparency and accountability – that it becomes possible to achieve intended outcomes. It is here that a critical gap exists; in order to elaborate on that, an explanation is offered. In matters of the state, deliberations and practical interplay usually occurs at two levels – at the level of input and output. Exceptions notwithstanding, at the level of input, there are power struggles, disputes and individual and institutional rivalries characterizing politics and a preoccupation to get into public roles. At the level of output, on the other hand, the dismal economic and social state is a constant focus of attention. There is something in between these two, which often does not merit the attention it deserves. The critical link is governance. Allow me to draw an analogy to help illustrate this point. Brick and mortar and expensive fittings as an input, with the expectation that hot and cold running water will be delivered in a washroom as an output, can only be achieved if functioning pipes are in place. The functioning pipes of the state are its institutional fabric of governance and systems of which institutional democratic behavior is a part. Just as there is no hot or cold water when pipes get choked, similarly when governance and institutions are ineffective, state institutions cannot deliver, regardless of who is at the helm of power and irrespective of the nobility of intentions.

If a review of Cabinet and ministerial decisions over the last 61 years is conducted, there will be no dearth of standalone schemes, programs, packages and relief measures for the social sector, infrastructure building, economic revival, etc.; problems with effective deployment and targeting have always been ubiquitous and for the simple reason that principles good governance and desired institutional democratic behavior have not been adhered to in their true spirit.

There is irrefutable evidence in support of good governance as being essential to foster the environment for economic growth and being central to improving the lives of people. It is well established that good governance contributes to higher per capita incomes and higher standards of living, better health status, lower infant mortality rates, higher literacy, and poverty eradication in populations. ‘Governance’ and not just the ‘formation of a Government’ should therefore become the reference point and a defining thematic priority in organizing the affairs of the state in Pakistan.

It must be recognized here that good governance is all about fairness, transparency and accountability in policy formulation and its implementation. Many a times those at the helm of affairs violate these principles – often inadvertently. When authority is misused, procedures are circumvented, laws are manipulated, nepotism and cronyism is furthered, state capture by vested interest groups is silently enabled, when a blind eye is turned to regulatory collusion or administrative malpractices, or when political patronage becomes the norm, key principles of governance and democratic values are violated. With every action, the state’s institutional fabric is weakened.

If governance is every public actor’s responsibility as is outlined above, why then the reference to ‘upstream determinants’ in the title of this opinion? This is for the simple reason that the choked pipes of governance can only be opened through plumbing upstream; if the principles of neutrality, transparency, fairness and objectivity are fostered in the affairs of state at the highest level, their importance will automatically cascade to governance at lower levels; without this, it simply will not be the case. It is opportune particularly today to flag this as a priority.

So what can be the plausible next steps if there was a committed champion within the system? The first would be to take stock of where we stand objectively, dispassionately and apolitically. The author in an opinion in these columns entitled ‘Governance Empirics’ on August 3 stressed on the use of validated instruments to asses governance and concluded by recommending that the government convene an independent task force to ascertain current challenges and subsequently set benchmarks for their own performance.

The second critical imperative would be to mainstream transparency promoting reform. The writer in another opinion in these columns on March 18, 2008 outlined a set of four measures centered on i) reviving the national anti corruption strategy; ii) bridging gaps in institutional mechanisms relevant to anticorruption reform with reference to mechanisms of public redressal, oversight and investigative work; iii) institutionalizing integrity promoting measures in the public sector; and iv) mainstreaming implicit transparency building measures with reference to the use of technology and competitiveness as entry points. These and other analyses on the subject can be reviewed for implementation in a phased approach. Thirdly, reform of key institutions of governance, should be a priority building further on the many initiatives of the past 61 years.

The cost of inattention to reform at this level can be enormous given the country’s precarious economic, social and security considerations, which are compounded by a number of factors. Our unique pattern of conflict, violence and terrorism; our national milieu, which is rapidly getting divided on ethnic, religious, sociopolitical and foreign policy grounds; the vulnerability of our populations to exploitation and the ongoing and impending food and energy crises exacerbated by global factors, are to mention a few. Reform will be slow and painful and will require sustained commitment to be successful. Although this is not a case of quick visible political wins, good governance and holistic democracy has to be at the heart of the affairs of the state; without that we are in for very rough weather.

The author is the founder president of the health sector thinktank, Heartfile. sania@heartfile.org