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> PILDAT Issues Legislative Brief on The Holders of Public Offices (Accountability) Bill 2009

Weak Mechanism of Accountability of Holders of Public Office is the greatest threat to Democracy: PILDAT

   
 
PILDAT Legislative Brief
August 26, 2009
Islamabad

   

  • The Bill offers weak accountability provisions for the holders of public offices
  • All Corruption Offences are termed bailable by the Bill
  • The Bill flouts a number of key International Commitments by Pakistan in the UN Convention Against Corruption (UNCAC)
  • PILDAT Recommends the NA Committee on Law to hold Public Hearings on the Bill
  • The Bill should be publicised for wider public comments, PILDAT demands

 
 

Islamabad, August 26; In an analysis of The Holders of Public Offices (Accountability) Bill 2009, PILDAT has termed the bill to be deficient on meaningful accountability provisions for the holders of public offices. A weak and inefficient mechanism of accountability of the holders of public office poses the greatest threat to democracy given Pakistanís peculiar context in which democracy gets derailed every few years, PILDAT holds. If the government fails to establish an effective mechanism of accountability, no matter how strongly pro-democracy forces feel, the democratic system will face disastrous consequences.

 
 

Lawmakers should be mindful of the fact that this legislation applies directly to them and therefore without inviting active public input, this legislation would be meaningless. The National Assembly Standing Committee on Law & Justice should hold public hearings to invite and seek expert and public opinion on the legislation before it is finalised.

 
 

While the National Assembly and relevant committees consider the legislation, the National Accountability Bureau stands paralysed. Nearly 50% of its employees have left and the rest are demoralised, with the result that the accountability process has come to a grinding halt in the country.

 
 

In a legislative brief on The Holders of Public Offices (Accountability) Bill 2009, released here today, PILDAT analysis holds that the draft legislation not only limits the scope of accountability it also fails to meet Pakistanís international obligations such as the UN Convention Against Corruption.

 
 

The Bill represents an attempt by the current government to redefine anti corruption measures in the light of criticisms against the National Accountability Bureau (NAB). The Bill adopts a more restricted model, compared to the NAB Ordinance, covering solely holders of political office, and adopting a narrower definition of corruption. The model of a specialist investigatory commission is retained but with reduced investigatory powers and a limitation period upon prosecutions. There is no power of arrest or to freeze assets. All offences are bailable. The model of a specialist court is discarded, in favour of trial before Sessions Courts. Penalties continue to include imprisonment, fine and forfeiture, but the disqualification period in relation to public office is considerably reduced, from 21 to 5 years. Two important procedural differences arise from the Bill. The first is the automatic acquittal of those returning misappropriated assets prior to trial. The second is the removal of the plea bargaining/pardon procedure. Jurisdiction in relation to corruption offences outside the Bill will return to the position prior to the NAO. Prosecutions will be dependent upon the general criminal law set out in the Pakistan Penal Code and other relevant legislation. Investigatory powers will rest with the Federal Investigative Agency (FIA) and various provincial bodies. In the past these bodies have been criticised for their poor performance in this area.

 
 

Some of the key international obligations that are flouted by the bill relate to the restricted definition of public official the restrictive definition of corruption; the exclusion of the private sector; failure to provide a long limitation period; failure to provide for a specialised agency and in particular a single body capable of developing, implementing and monitoring corruption policies; removal of asset freezing powers; failure to provide for the removal of obstacles in banking secrecy laws; absence of protections for whistleblowers and witnesses; failure to provide for disqualification from public office in a wide sense and the failure to sufficiently provide for international cooperation, etc.

 
 

Offering recommendations to the legislators, PILDAT holds that the Bill requires serious review and redrafting to ensure compliance with Pakistanís international obligations and best practice. A number of the elements of the NAO should be reinstated into the Bill to provide for:

 
 

  • Robust anti corruption provision
  • This must include broad definitions of corruption and those covered by the provisions
  • A specialist court should be retained
  • The limitation period for prosecution of offences should be lengthened
  • The ability to freeze assets should be included and sufficient investigatory powers should be given to the Commission
  • The banking secrecy laws should be modified to allow for proper investigation
  • The issue of plea bargaining should be re-examined and plea bargaining provisions be included in the Bill
  • Penalties for offences should include a wider ban on holding public office

Specialisation in investigation, prosecution and adjudication bodies should be ensured. Measures should be incorporated to ensure independence of agencies and to prevent political interference. The appointment of the chairman by consensus for a fixed term and the limited circumstances upon which s/he can be removed should be retained. Information in relation to investigations and prosecutions should continue to be made publicly available, PILDAT recommends.

PILDAT Legislative Brief on The Holders of Public Offices (Accountability) Bill 2009 can be downloaded here