9 Eradication of Corruption

Corruption Defined

A broader definition of corruption is an intentional breach of the law which takes place when

(a) power not possessed is exercised. It is a case of usurpation of jurisdiction, lacking legitimacy and morality.

(b) A power legally conferred is not exercised even when the circumstances requiring its exercise exist. It is a case of failure to exercise jurisdiction.

(c) a power legally possessed is applied without application of mind, either on the dictation of a non-statutory superior or on the suggestion of authority of coordinate or subordinate jurisdiction.

(d) the power possessed is exercised in violation of the procedure prescribed for the exercise of that power.

(e) defeating the very the purpose for which the power is conferred.

(f)Inherent vice or taint in the exercise of power, like bad faith, arbitrary or capricious exercise of it.

Awareness of Corruption

Of the Common Man

The common man has got neither the capacity nor the resources to understand correctly and fully the extent and scope of corruption even in fields in which he is directly concerned. He has usually a vague and exaggerated notion of it. He suffers from total disbelief and cynicism and thinks of vague revolutionary and nihilistic methods for combating or eradicating it.

Of Bureaucrats

They know and understand the full implications of corruption. Ostensibly they underestimate its prevalence, are prepared to condone it as the country appears to advance materially on the strength of black money and conspicuous consumption.
Awareness of the Industrialists and businessmen. They have a far accurate assessment of corruption and also of how best it serves to create, protect and advance monopoly in business, manmade scarcity for the public and profitability for themselves inside or outside the country.

Of Politician in Power

He makes money, right and left, seen and unseen, known and unknown, always in a hurry mostly through front men. Once somewhat satisfied he wants to build a family, usually incompetent and pampered, next, to establish a dynasty and finally to perpetuate it. He would not allow any undergrowth of competence and ability.

Of Politician out of Power

He cries loudest, always outside the forum constitutionally provided, seeking support from every power, seen or unseen, earthly or heavenly, worthy or unworthy, for coming back to power.

Effect of globalization and very fast developing technology

In meeting the menace of growing corruption in the Society the gap between the developed countries and the developing one is unmanageably increasing. Developing societies have the following disadvantages:

Such countries lack the procedures for coordination, criticism, and control that are necessary for meaningful legislation.
Administrators tend to be improperly chosen, supervised, promoted and paid – corruption can act as a lubricant to overcome exercise of bureaucratic inflexibility, sluggishness, and bungling.
Political power cares little for the rule of law. It takes pleasure in personalizing all power, share it with loyalists, usually members of the same family, with little regard to their competence or ability and to perpetuate such power in that limited circle.
Every inexperienced politician and ambitious bureaucrat finds a solution of all problems of the country by framing strictest laws which further entrenches the corrupt in lower enforcement tiers and importing the latest expensive techniques which not many are qualified to utilize.

Advantages available to Advanced Countries

Rule of law is strongly valued, visibly maintained, and enforced.
They have the required dominant economic weightage to dictate terms and to obtain and ensure compliance from other countries.
They have the required techniques and expertise to probe thoroughly into white-collar crime.
Their police and justice system is in no way idealized or targeted at doing complete justice.
Their system is pragmatic, worldly wise, as far as possible purposely made less expensive, less dilatory, more protective of their economic, strategic and more vital national concerns.

Brief History of Corruption in Pakistan

Having taken the lowest step of the ladder of the highest executive service of Pakistan, then with no prospects of ever coming over to the judiciary, I tried my best to live up to the task, reconcile to the requirements of the service not of my liking or of my choice. All along in the executive, I found that I could perform independently only twenty percent of my duties to my satisfaction. I have explained it at full length in great detail in the first paper that I wrote “Executive Orders and Their Disobedience”, serialized in Frontier Post, 19-21st July 1995. The rest was somehow influenced by superiors or those around, not necessarily in the direction in which I wanted to work.

At that time, the Patwari needed and was well-provided with bare necessities of the family by the landlords of the area. A teacher received the well-deserved respect and accommodation from all and added dignity to the locality inhabited by him. There was not much wealth around, none to show and influence. Austerity and commitment to duties were generally considered a virtue and was preferred. The society was predominantly value-oriented.

In 1958, the first, and a very well planned long-term takeover by a dynamic Martial Law Administrator, Gen Mohammad Ayub Khan, later a self-made Field Martial, came into existence. A shift in our foreign policy took place attracting the attention and admiration of the wealthier countries of the world, which we still show on TV with great satisfaction and feel greatly honored. Foreign aid and foreign investment flowed with such speed and in such magnitude that the domestic economic turmoil that followed remained unnoticed, totally unfelt. In the process, however, noticeable improvements were achieved in the social sector concerning registration of marriages, and rationalization of family laws.

The initial and immediate impact on the economic life of the country was disastrous. The only and the famous retailer of New Anarkali had to sell all his products at one-third of their purchase price and remained out of business for months. The outflow of business and wealth took place on an unprecedented scale, mostly to Swiss banks and other havens in Europe. A few went out as far as the Cayman Islands. Following the United States practice, advice was given that the children of those enjoying State power or sharing it can freely carry on their own business. What followed was a spectacle. The adult children left their secure jobs and joined either the running business houses or established with solvent parties, new businesses. Their name, their participation, their very presence ensured the success of the business. More details of their involvement and its extent in Ayesha Siddiqa’s book Military Inc.).
This was the period which saw the beginning and a very robust unashamed appearance of corruption in the Bureaucracy of the country. It all started with licenses and permits for establishing industries, followed by over-invoicing and under-invoicing in imports and export, getting route permits for transport, obtaining commissions in foreign currencies, keeping dealings in bonus vouchers etc. Methods of corruption kept on improving, adjusting and changing. At first, people named only twenty-two such families emerging. Soon the number increased to two hundred, then to two thousand and finally to twenty thousand, and now stabilized at an ever-increasing pace. All this has resulted in shrinking the middle-class population considered the backbone of a civilized society.

For a number of plausible reasons, but some not so, the capital of the country was shifted from Karachi to Islamabad. One of the reasons popularly advanced was that removed from commercial centers there will be less corruption. What happened was the opposite. A category of lobbyist-like intermediaries came into existence; totally uncontrolled, totally unregulated peddling between Karachi and Islamabad arranging deals with officers usually their relatives or acquaintance or former colleagues. Corruption at the top level became more rewarding, safer, and more dignified. At the intermediate level, a group came into existence hovering round offices offering and undertaking all types of facilitation work for a fee. In all the offices, whatever be the instructions under circulation, there was demand for a fee for moving the wheels of the ‘file’. It was most tragic to find the old pensioners obliged to share a cut in order to get the Pension Order.

Enter the ambitious ‘businessmen’ and ‘industrialist’ in the arena of State power. All the methods of corruption changed. Gen Pervaiz Musharraf in his memoir “In the Line of Fire” (p.147) has given an example of how a project worth Rs. 18 billion was after reduction offered at Rs. 75 billion. A stage came when foreign governments started pointing fingers and we did not take it seriously either.

One area of great satisfaction that I experienced was as a Colonization Officer of Haveli project extending over four districts of central Pakistan in 1956. It was that parcels of colony land which was allocated or reserved for grants to meritorious members of the Armed forces. An officer was deputed to periodically visit and see to its development and he usually called on the Colonization Officers and pointed out the progress and difficulties, if any. The other was that the Armed forces had a very organized system of registration of the grievance of the members and contacting the civil administration, usually the Deputy Commissioner for their easy and early resolution. With police help, it was possible to settle the matter and very quickly. I had no knowledge of how the difficulties in court cases were handled. In Bahawalpur, as Deputy Commissioner, I had no such problem. The land was in abundance, but all belonged to the state for grants to civilians for service, as a reward, or for cultivation. No reservation as a class for the army.

As the insecurity of the public servants went on increasing their participation in varied business in the names of their dependent relatives, confidantes, or front men went on increasing. I had an occasion to go deep into the matter in a judicial case reported as PLD 1991 SC 14.
The enforcement part in the matter of intelligence collection and preventive, preemptive action suffered most. Favorites were posted to coveted posts like that of Appraisers in the Customs and posts in the FIA. As deputations, they enjoyed the protection against delinquent conduct from the departments they were serving. What a protective shield! For them, their competent authority remained the same in the parent lending authority. The abuse was so widespread that the first charge, right or wrong, against a Chief Justice, was never and nowhere examined on facts. It was for the Parliament to ask ten or twenty years of appointments made in the FIA by such a novel procedure. Politicians in office soon became shareholders with bureaucrats and the like. The full disclosure has yet to be made of the variety of corrupt assets kept by a Secretary of the Provincial Government, a small country’s total budget amount of the year.

In all studies on corruption, on good management of public power, on systems of accountability, it is emphasized that public opinion is the best sanction. In order to make such a sanction practicable, it is necessary that the public must have reasonable means of knowing material facts, of verifying them, of correlating them and of demonstrating their correctness or incorrectness. The replies tend to show that whenever such declarations have been called and scrutinized as in the case of certain politicians they have been found not to yield much information or to lead to any fruitful result. This actually proves the point. In the first place, so far no such declaration has been known to the public as a part of an ongoing process of accountability or of cleansing the administration. Whenever scrutiny was undertaken it was on an ad-hoc selective basis by succeeding regime of persons involved in the preceding regime. Every meaningful inquiry into such declarations has proved beyond doubt that

(i) undervaluation was the rule

(ii) omission the practice.

On various occasions, it was found that such declarations were not forthcoming from the quarters allocated for that purpose. It is not understood how can an honest declarant be blackmailed and why exposure of a dishonest declarant be termed blackmail and exploitation may follow.

Martial Law of 1958

At the time of Independence, and for some time thereafter, the Superior Judiciary in particular, and the subordinate judiciary on the civil side, in general, enjoyed a reasonably good reputation for integrity and competence. With the imposition of Martial Law in the country in October 1958 the judiciary came under great pressure. This pressure was visibly focused on the subordinate judiciary and was exerted generally by the local Sub Martial Law Administrators in various forms. Sometimes it was in the form of a command to the subordinate judge to decide the case in a particular manner, sometimes a visit to the courts in uniform in an assertion of authority not really enjoyed.

The prompt, timely and protective interventions made by the superior courts, mostly by the Chief Justice, prevented, for the time being, the shattering of the confidence of the entire subordinate judiciary throughout the country in their own system. The superior judiciary was subjected to more indirect and subtle pressures not so visible.

The superior court judges were sought to be influenced in a different manner. Reporting by those who should not be reporting on judges was resorted to and certain actions, which should not have been taken, were taken. These find mention in a speech by the then Chief Justice, made on 7th November 1962 in a Karachi High Court Bar Function soon after his retirement. He said;

“But this I must say now, that the legal system has become directly and profoundly demoralized by the fact that the Law Secretariat was taking advantage of the prejudice which naturally exists in military circles in respect of the ordinary law and was widening the gulf further between the Government and the High Court.”

And he said further in the same speech;

“Of course I took a very serious view of the provision made within two months of martial law for the suspension of judges. I regarded it as a “cold insult” to me as Chief Justice and I promised never to forget it. I haven’t forgotten it. I said in the highest quarters that no other Government could have been persuaded to make that revolutionary provision. It has demoralized the High Court.”

Proceedings for the removal of one of the judges of the High Court was initiated under Article 169 of the Constitution of 1956 and on the report submitted and he was removed from office.

A system of allotment of vast agricultural lands to, among others, selected judges of the superior courts was devised which in times to come was substituted by one of allotment of residential plots in coveted urban areas. There are instances where a judge of the superior court was able to obtain four coveted plots in a single urban area.
Towards the end of the first Martial law with an eminent lawyer as Law Minister, a system of formal interview by the President of those recommended for appointment as a judge of High Court was devised. An eminent lawyer, Mr. Hamid Khan, made the following observation at the SAARC Law Conference at Karachi from 3-5 October 1997.

“The rot started, in particular, during the regime of President Ayub Khan. He made a number of judicial appointments on political or personal considerations. He made an appointment to the High Court of a Member of the National Assembly in return for his vote on a matter, which was highly sensitive for the government in power. He appointed a brother of a prominent politician, who helped him in the Presidential election of 1965 as a judge of West Pakistan High Court…..another judge was appointed by President Ayub on the recommendation of his Pir. He used to hold interviews for the recommended which perverted the system making it highly arbitrary and subjective.”

Commission on Eradication of Corruption

By a notification dated 13th March 1979, a commission on Eradication of Corruption was set up. I was appointed its Chairman. The other members were

Mr. A.R.Changez, retired judge of the Lahore High Court
Mr.M.H Sufi, a senior civil servant
Mr. Muzaffar Ali Qazilbash, Lahore
Syed Baber Ali, Lahore
Qazi Fazlullah, Karachi
Mr. Khalid M.Ishaque, Advocate Karachi
Mr. Kamal A Farooqi, Bar- at- Law Karachi
Maulana Noorul Haque Nadvi, Peshawar
Mr. Dost Mohammad Kamil, Peshawar
Mr. Gul Mohammad Khan Jogezai, Quetta
Mr. Minoo Bhandara, Rawalpindi
Dr. Riffat Rashid, Professor, Department of Sociology, University of Punjab, Lahore
Secretary Ministry of Interior
Secretary Ministry of Finance

Mr. Dost Mohammad Kamil did not take up the appointment. Mr. Muzaffar Ali Qazilbash, Syed Baber Ali and Minoo Bhandara remained out of the country and were not available during that period. The Commission conducted public hearings on 31 working days, 142 witnesses were examined. The Secretary Interior and Secretary Finance attended only three sessions.

What I wanted the Government to do I expressed clearly in my forwarding letter dated 2nd October 1979 to the President reproduced hereunder.

“Mr. President,
1. By the grace of God, the Commission established by you on the 22nd March 1979 for making recommendations for Eradication of Corruption has, to the best of its ability, completed its assignment and is presenting to you its report.
2. The Commission had, during its deliberations the occasion to examine all the previous reports on the subject that could be available. The problem has been studied in the past and recommendations made time and again. The solutions are simple, their implementation, it appears, most difficult, for those possessed of power and authority are required to exercise it with a deep and abiding sense of public interest and accountability to the public.
3. In short, all concentration of administrative power likely to be abused, is proposed to be identified and brought to an end, public to be given a right to seek information and get it, thereafter the establishment of a confidence-inspiring forum to bring the Administrator and the citizen closer to become a bridge of understanding them, and make meaningful participation of both in the administration possible
4. The Commission would like to reiterate its earlier request to make the report or a substantial part of it public. This would be, according to the commission, the very first step towards any effort at understanding the causes and then attempting eradication of corruption from society”.

No part of the report was published. Over ten years after, a Minster, probably of Interior, asked me what had become of my report. I told him that is a question I should be asking him. A month after he informed me that the department has informed him that the report stands implemented. I requested him to ask the department a single recommendation which has been implemented. I did not ever receive his reply.

How we failed to develop a sensible system of governance and continued to govern with fractured top of every institution, and rudderless lower tiers.

Here follow the examples but not in chronological order.

1. Shortly after the enforcement of the Constitution in 1973 a Law Minister with an imposing loud voice and greater bulk invited all the High Court judges available at Lahore to lunch. One of the judges punctilious about complete independence of judiciary directly asked the Minister whether he had invited the judges to lunch to instruct them about the handling of Government cases. The Minister replied, “What else do you think I have invited you for?”. There was no reaction from anyone. The Minster had only to tell us that a large number of cases involving Government revenues, with interim orders staying recovery, are pending in the court. They are disposed of expeditiously.

In the year 2018, exactly 45 years after, an article giving figures of cases appears on behalf of a financial institution in daily Dawn of Karachi. It also remains unresponded from any quarter. It makes exactly the same grievance.

The sensible course in such matters is to make a formal petition every six months, or earlier if need be, about the urgency of a matter pending in court. That is the right of every party to make such a request. The second course is to make it a part of the monthly or periodical reports of courts. The third course is to discuss such cases in judges meetings

2. After my retirement, perhaps in 1996 or near about, a Secretary of the Provincial Government came to me and asked me what he should do as he had received a notice of contempt from the Supreme Court. I asked him what the occasion was. He said that notices were received from the Court; his office did not put up any before him. I asked him to go tender apology and explain the reasons and give an assurance that such an event will never happen again. He never turned up to tell me what happened. From the fact that he got higher and more responsible jobs and even after retirement he is writing in newspapers and lecturing within the country and abroad, it appears he was and continues to be an efficient Officer.

A sensible follow up to such an event should have been to seek the concurrence of Establishment Division and have a label as is used on files introduced showing in bold letters “Court Case” with separate instructions, not to be held by anyone for more than ten working days, another “Court Case Urgent” not to be held by anyone for more than five working days, another “Court Case Immediate” not to be held back by anyone for more than two working days.

More was expected of a senior officer exposed to Organization and Method course, to entrust all court cases of the department to an Assistant, to get periodical reports about their progress and to get a write up on the judgment of any case decided for further action.

3. In the year 1993, a Minister of the Government gave a public statement that he was sending freedom fighters in Indian occupied Kashmir. The world wildly publicized it. A book was written by an eminent citizen with a title. At that time the Supreme Court, full court, was hearing a political case of importance. The Attorney General requested for in camera hearing of that case which was granted by the Hon’ble Chief Justice. I feel embarrassed in describing what happened at that hearing but a substantially correct version is recorded in Senior Advocate S. M. Zafar’s book in Urdu “Mere Mashoor Mukkadamay”, (translated “My Famous Cases”).

4. The superior courts at the apex are required to act in a collegiate fashion, do mostly brain work, write scholarly and reasoned judgments promoting balance and fairness in society. The first act which surprised me was that I noticed that a lawyer who was refused Bar degree on ethical grounds was permanently designated as Barrister, was allowed entry through the gate reserved for judges was allowed to report on judges coming late. See for details refer to Chapter 1 Introduction of the memoirs

Next in a series of judgments, mere possibility of a mistake, without finding any, was made a ground for allowing medical college admissions to remain intact spite of proof that mark sheets on which admissions were obtained were forged. Please refer to Chapter 7 Part III of memoirs

Corruption, its shape, and size in foreseeable future

The increasing globalization, advancement in technology and market capitalization, have all given advance countries unparalleled clout in influencing the other countries and their institutions, in extracting information from them and in doing much more.

The USA was the first country to enact and enforce a law prohibiting its citizens from corruption abroad in commercial dealings. Countries in Europe continued allowing corrupt expenditure abroad as permissible business expense deductible in Income Tax. It is to the credit of OECD that, it is getting stricter standards fixed and improved globally. The USA with its economic, political and strategic clout got a submission from over two hundred global financial institutions to furnish on a regular basis the particulars of Americans using them as tax havens. With fracking and horizontal drilling of oil, USA has turned into the world’s largest and cheapest oil producing country in the world and is trying to operate with greater strength in the economic affairs world over.

The researches show that “money launderers target countries where the defenses are weak”, Small countries with oversized banking sectors are thought to be particularly vulnerable. We have already the experience of how a banking business joined bird hunting with some of the other business evils. Now world over in places little known on the world map, lawyers are joining hands to make money laundering a world business, a hidden secret, highly rewarding.

Add to all this the emergence of digital currency, unseen, invisible, without roots, without an abode, outside human grasp. Give it any name that you like. For the present, it is cryptocurrency and what not. One state of the USA is already accepting it for discharging financial liabilities.

The most intriguing development taking place in the governance structure today is that every money maker is trying to catch up with technology which is advancing at a faster speed.

The capacity of our Governing structure to deal with an oncoming tirade of complex global corruption

Bureaucracy

The Imperial Bureaucracy of the subcontinent was considered to be a steel framework, strong, dependable long-lasting. I still believe in it. To the incredible, I give the example of our Army still 90% colonial with slight changes in features. The one remark written in a book which I found nearer the truth was that the army knows when to take over civil power but not when to leave it.

The Bureaucracy which has now arisen from the ashes and is the most powerful, the most invisible, the smartest, is on a highly self-serving course of self-destruction. It has learned the lesson very well to collaborate, on its own terms, with those who can always protect him and he can ditch them when the need be.
For a moment just think of a case of the lifting of a purse full of wealth belonging to a man of wealth and influence visiting our country on a diplomatic mission. Another case, of a Provincial Secretary whose house was found to be a storehouse of foreign currencies. Another, a bureaucratic device of Protective Posting coming into existence, after protective detention having succeeded so well. For finding out how a soaring institution is brought down to ashes with its global glamour increased by an increase in number and name only please read Business Recorder dated 12th June 2017.

I still hope and have confidence that the bureaucrats and not the bureaucracy can rise to the occasion and meet the challenges of the future.

Introduction to Reform Proposals

I am here recording only briefly what I have dealt with at length elsewhere. My conclusions about the bureaucracy and the bureaucrats are serialized hereunder:

Complete destruction of bureaucracy started in 1956 and ruthlessly completed by 1983.
The bureaucrats started their rebirth individually, without glory but with greater strength since 1981,
All organs of the state started on a suicidal course of self-destruction.
A completely new ethics of governance took shape, that service to the country is the highest virtue and the Constitution, Religion, and Fairness can be kept on the back burner to remain unattended unnoticed
For achieving personal ends all or any of the options like customary practice, tribal ethics, family honor, cataloged personal greed was recklessly availed of.
Use of depraved language and physical violence are on the increase
Media is now playing every role, on its own terms, irresponsibly, improperly and disgustingly.
Public opinion, independent thinking, dissenting voice is improperly silenced.

The legal, moral and the religious moorings of the proposal for reform are as hereunder.

Quran [Nissa 4:135] For the sake of justice be a witness against yourself. I treat it as self-accountability without any formal trial. It has found a place on Harvard Law school wall with comments elsewhere that “Established in 1817 Harvard is the oldest continually operating law school in United States and is home to largest academic law library in the world –the words of justice exhibition is a testimony of the endurance of humanity’s yearning for fairness and dignity through law. The words on these walls affirm the power and the irrepressibility of the idea of justice.”
Quran [Rahman 55:9]. After narrating, directly and allegorically the revealed message is that the entire universe has been established with the greatest care and attention to create a balance, none can replicate. The direction is “Keep the balance with equity”. Equity brings in justice and fairness.
All power is trust. The opening words of the Constitution “authority to be exercised by the people of Pakistan—is a sacred trust. The trust power is best defined in the Constitution of the Philippines as hereunder

The responsibilities of trust power are comprehensively described in the Constitution of the Philippines in the following words.

Article XI
Section 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity loyalty and efficiency, act with patriotism and justice, and lead modest lives.

Restore Bureaucracy
The remedy now is to turn the table on the entire bureaucracy itself by insisting on

timely collection and publication of complete and correct data, making material omission a major departmental delinquency
by insisting on everyone to remain and think within the jurisdiction
by handing over to everyone his duty list, his responsibility list, demanding periodically from everyone his written record of self-accountability to be shared by others in the department
everyone to act as the whistle blower so far as the statuary duties of the department are concerned
to progressively substitute all oral reporting, briefings, submissions, expression of opinion to written record
all officers in grade 16 and above to read at least one professional book of their choice every month, to write an evaluation report of it not exceeding six hundred words by the 15th of the next month and share it with two other officers of higher or equivalent grade. No exception to be allowed to anyone
each department to prepare a list of experts engaged during the last ten years, recommendations made by them and what action was taken. This report to be circulated to all grade 19 officers and above under their signature.
Government Support: I cannot give all the details of the case, just the outline. A head of the state not properly guided can cause havoc even with a copy of the written constitution in his hand. A judge of the Lahore High Court recorded wildest obiter dicta in Nizamdin case that if the Constitution and the laws of Pakistan do not provide an answer to a question then instead of going to Anglo Saxon Common law refer to Shariat law, which Shariat law he did not mention. The confidence between the President and the executive Government somewhat diminished at one stage. The President was ill-advised not to return any file of the executive if he did not agree with it. He followed it until the end. The judge who had recorded the obiter had become Chief Justice of Pakistan. The executive Govt passed its time partially paralyzed. With Eighteenth amendment a limit of 15 days and ten days was allowed to the President to decide.

In all sphere of human activity, particularly the media and politics, a culture should progressively be developed to look for the law when faced with a problem, follow the law or get it changed if defective. Where no law available follow what God has ordained maintain balance with justice and fairness.