Dispelling Perception of Corruption as a Requisite to Excellence on Rule of Law Index

Dispelling Perception of Corruption as a Requisite to Excellence on Rule of Law Index

The United Nations Convention on Corruption (UNCAC) entered into force in 2005 and once it had been ratified by Pakistan in 2007, the Government of Pakistan made corresponding amendments in its domestic anti-corruption law titled the National Accountability Ordinance 1999 (NAO). Since the promulgation of the Ordinance, significant headway has been made in the prosecution of suspects involved in corrupt practices. Furthermore, some new legal concepts have taken root in the justice system of Pakistan, such as plea bargaining, voluntary returns, reversal of the burden of proof, know-your-customer-requirement for financial institutions, forfeiture/asset freezing and mutual legal assistance (MLA) agreements with foreign governments. While these developments are commendable, they may not be sufficient to give credibility to the process of bringing wrongdoers to justice. That is why Pakistan ranks at 117 out of 126 countries on the World Justice Project (WJP) Rule of Law Index 2019, one place lower than its ranking in the preceding year.

There is widespread perception amongst the people of Pakistan that the anti-corruption endeavors taken by successive governments have been politically motivated. The belief is that those having access to the corridors of power can get away with anything regardless of the magnitude of their crime. By way of contrast, those not being able to find favors with ruling regime are destined to live under the constant fear of apprehension, arrest, prosecution and punishment. For any government to succeed in its anti-corruption drive, it is imperative that this impression must be dispelled.

Connected with the perception of selectivity and political victimization is the impression that the National Accountability Bureau (NAB) is targeting the little fish only while the rich and resourceful either find their way out of the net or have the means available to maneuver the system to their advantage. This problem is not entirely the government’s creation – the judicial system is equally responsible – and such an impression gets inevitably reinforced when powerful property tycoons get granted the concession of bail or if their unpaid liabilities running in billions get reduced to easy installments spreading over several decades. On the other hand, when under the same law, people belonging to other societal classes such as retired university professors are refused bail despite spending 2-3 years behind bars, fingers are bound to be pointed towards the fairness of the process.

In enforcing anti-corruption laws, the importance of whistle-blowers cannot be overstated. Mega corruption cases are frequently unearthed by whistle-blowers. The UNCAC 2005 also calls upon states to provide adequate protection and incentives to whistle-blowers. As per the common definition of corruption, whoever is maintaining a standard of living beyond their ostensible source of income should be treated as a suspect. If the anti-corruption laws are equally applied without regard to the status of the suspects involved, people will come forward themselves to point out illicit gains made by individuals through corrupt practices. In order to make this happen, it is sine qua non that people have faith in their justice system. According to the Constitution of Pakistan, the judiciary is supposed to work under the principle of equality before the law i.e. where everyone is entitled to equal protection of the law or equal treatment before the courts of law. Regrettably, when ordinary citizens observe that some people are resourceful and can afford expansive attorneys who can get their clients off the hook by taking advantage of the technicalities of an adversarial justice system, their confidence in the rule of law recedes. Furthermore, persons intending to provide information lose heart because they know that if the suspect comes out clean, it will be the informants who will have to bear the brunt of retaliation.  Consequently, they would muffle their desire to be whistle-blowers. Therefore, the so-called ‘scared cows’ or ‘untouchables’ must be brought to justice in the same way as ordinary offenders, otherwise the rule of law will always remain elusive.

There is also something inherently perplexing about the way the term corruption is understood in Pakistan. For ordinary citizens, corruption primarily means financial corruption alone. However, the word corruption, as used in the UNCAC 2005, is not restricted to financial corruption. The term has been defined to include illicit gain made or advantage taken in exchange for a favor illegally rendered. Keeping this definition in mind, there can be so many varieties of corruption while the people involved in such corruption are seldom held accountable. For example, investigating officers routinely drop inquiries against influential suspects or declare them innocent, even if the complainant disagrees or protests. Such things lead to the presumption that some benefit must have been drawn by the authorities.

It is possible that the examples given above may have already been covered by the laws of Pakistan but the general public does not perceive them to be crimes. As long as public support is not enlisted, the attempts to dispel the perception of corruption are unlikely to bear fruit. The general public needs to be sensitized about the different kinds of corruption and the rationale behind their culpability, such as loss to public exchequer or tax evasion, without taking into account social approval of the acts in question.

All the above concerns would need to be addressed by the government of the day in order to do better on the Rule of Law Index 2020 which takes into account public perception of corruption as a chief determinant of a nation’s performance in upholding the rule of law.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Dr Usman Hameed

The writer is a former Director at Punjab Judicial Academy and part of the Law faculty at Bahria University Islamabad.



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