October 11, 2012; In releasing its analysis on the National Accountability Commission Bill, 2012 (NAC 2012), PILDAT has termed the bill, introduced by the PPP Government approaching the end of its 5-year term, as too little, too late.

PILDAT has also asked that the Government should allow debate in the National Assembly and the Senate and, in parallel, in the society, before this law is passed. Where the Government has waited for 3.5 years, it can also wait further for 2 to 3 months to allow debate on the law and improve it in the light of the debate. The Government should not steamroll the issue through the Parliament.

Comparing the NAC 2012 to National Accountability Ordinance of 1999, PILDAT believes that the draft NAC 2012 is not an improvement but it aims to shrink the space of accountability as provided under the 1999 Accountability Ordinance. If passed by the Parliament in its current shape, the law will be a sad commentary on the political process and its inability to put in place an effective, objective and across-the-board accountability mechanism in nearly 5 years since 2008. The ruling PPP and the PML-N had pledged under the Charter of Democracy (CoD) of May 2006 to replace what they termed as �politically motivated� National Accountability Bureau (NAB) by a consensus-based Accountability Commission.

Analysing various clauses, PILDAT has said that the mode of appointment of the Chairman tilts in the favour of the ruling Government. In case the Leader of the Opposition and Prime Minister do not agree on a person in 15 days, they have to, in 10 days, forward 2 names each to the National Assembly Standing Committee on Law for confirmation of any 1 person. In view of the fact that the National Assembly Standing Committee on Law and justice will always have the majority of the ruling party/coalition, the nominee of the ruling party / coalition will stand a much better chance of selection. It would have been better to refer the question to a special committee having equal representation of both the ruling party / coalition and the opposition. It will be even better if the proposed committee has representation both from the National Assembly and the Senate as is the case for the Committee charged to select the Chief Election Commissioner and members of the Election Commission.

The most controversial clause of this bill is related to the commencement of this law from October 01, 2002. If passed, this would effectively provide immunity to all corrupt persons and corruption that occurred before this date as these shall never be investigated or prosecuted under the accountability laws in Pakistan. The NAO 2009 had set the commencement period at 1985-onwards.

The NAC 2012 mandates that the Accountability Commission shall not inquire or investigate into any complaint if it is made after the expiry of a period of ten years from the date on which the offence mentioned in such complaint is alleged to have been committed. The NAO 1999 does not contain any such limitation on the period after which a prosecution can not be initiated in respect of corruption. Not only the 10-year limitation period is politically and socially unacceptable in Pakistan as it should be set at all past and present acts of corruption, it also violates the UN Convention Against Corruption (UNCAC) which Pakistan has ratified and which asks for a long limitation period.

PILDAT analyses that even though the NAC 2012 provides for an independent investigation agency, the investigation powers under the NAC 2012 have been reduced from that of NAB.

PILDAT believes that the National Accountability Commission Bill, 2012 requires a serious review by public representatives to enact a system of objective and across-the-board accountability in Pakistan. Legislators must also ensure compliance with Pakistan�s international obligations and international best practices before passage of the draft law. Following are some of the key recommendations of PILDAT to Legislators:

1. The commencement clause should be re-visited. An effective accountability mechanism requires that the laws cover all past and present corruption. No effective date should be mentioned in the bill

2. There should be no limitation on the period after which a prosecution can not be initiated in respect of corruption

3. The definition of corruption should be broader and precise in line with Pakistan�s UNCAC obligations. Wilful default, offence of cheating, criminal breach of trust, offence of abetment, etc., included under the NAO 1999, should also be covered under the NAC 2012

4. Private sector should also be included in the ambit of the law

5. The mode of appointment of the Chairman tilts in the favour of the Government and must be amended through providing for a special committee having equal representation of both the ruling party / coalition and the opposition and representation both from the National Assembly and the Senate as is the case for the Committee charged to select the Chief Election Commissioner and members of the Election Commission

6. Definition of assets should also include benami as under the NAO 1999

7. The scope of asset freezing should be broader including the assets abroad

8. Sufficient investigating powers should be given to the Agency including the power to arrest during the investigations

9. Witness protection should be included in the bill

10. The banking laws should be modified to allow for proper investigations

11. The issue of plea bargain and tender of pardon should be re-examined and be included in the bill

12. The penalties for corruption offences should be stricter including a ban for longer duration on holding public office as mentioned in the NAO at least for 10 years

13. There should be a disqualification for public office holders in case of pre-trial voluntary return as well

At the heart of the Anti-Corruption effort is the need to create an investigation and prosecution agency which is impervious to political influence of the government of the day or any type of influence from any quarter. Such an agency should continue with its accountability mission irrespective of who and which party is in power and no matter how powerful and well-connected the accused persons are. It is equally important that the Accountability mechanism should not become an instrument of victimization against political opponents, the manner in which the NAB was used during the period of General Pervez Musharraf, PILDAT said.

The sustainability of Democracy in Pakistan is closely and directly related to the existence of such an independent accountability mechanism. Corruption was used as a key argument for the dismissal of at least 6 governments in the past 30 years in Pakistan. Providing a credible accountability mechanism will rob any future adventurer of the pretext of corruption to disrupt democracy. Pakistan, as a signatory to United Nations Convention against Corruption (UNCAC) has international obligations, too, to move effectively and speedily for the establishment of a Credible Anti-Corruption mechanism.

Complete text of PILDAT Legislative Brief on the National Accountability Commission Bill, 2012 can be accessed here.