Bounty hunting is a recognised profession in the US. Universities offer Bachelors and Masters programmes in Criminology or Criminal Justice. It takes a person of sharp wit, knowledge of law and negotiation skills to become a bounty hunter. The person also needs to have good understanding of international money laundry conventions and financial transactions. Bounty hunters track and apprehend fugitives, negotiate plea bargains with them, bring them to justice and collect bounty, which is guaranteed by courts. In the US, 22 States require bounty hunters to be licensed. Four States, Illinois, Kentucky, Oregon and Wisconsin, ban bounty hunting altogether.
In Pakistan, bounty hunting is not yet an established profession but the concept has been in practice for over two decades and people involved in this field are criminal investigators and forensic experts. Bounty hunting is also strictly regulated in Pakistan. It is vested with the National Accountability Bureau (NAB), which is mandated to look at a whole range of financial crime, including white-collar crime from public sector fraud to recovery of bad loans and chasing return of illegally earned or unlawfully laundered money abroad. NAB is not answerable to anyone except the courts, should its decisions be challenged by those affected.
In theory, it is a brilliant mechanism to stop financial crime in a fast moving world where criminals are assisted by professionally hired lawyers and tax advisers to stay one step ahead of the law. But in practice, it works only if two prerequisites are met. One: the corruption watchdog is constitutionally autonomous and its employees are skilled professionals recruited through the most stringent processes and are empowered to act independently under set processes and procedures. Two: the persons chasing criminals are protected under law and outnumber those being chased. Unfortunately in Pakistan these two requirements are not adequately met, as the sheer volume of ever increasing new cases and the failure of NAB to bring a large portion of the stolen money back in the State treasury remains an illusive dream.
Pakistan’s problem is not corruption alone even though it is universally prevalent. Pakistan is inundated with a myriad of other serious issues. A national clean up exercise is necessary but not above the pursuit of a grand strategy for strengthening national unity, attaining human development and scoring consistent economic growth. Unfortunately, the national discourse of political parties, media and civil society is overtaken by the slogan of corruption so much that all other issues have become less important or almost invisible. It is the result of the changing social norms, which have made wealth as the yardstick of success in society. It also is the consequence of the breakdown of a social order in which rule of law is dispensed with for political expediency to buy support of major political players. It is the failure of courts to punish the corrupt if they are poor but look the other way for the corrupt if they can hire a rich attorney or are politically influential. As the saying goes, ‘in this Bath, everyone is naked’.
For example benefiting from illegal gains and money laundering is not confined to politicians alone. The several hundred cases filed by NAB in the country’s courts, and names popping up in the Panama Papers and the recently discussed Broadsheet awards show that the corrupt come from all backgrounds, professions, political parties and ethnicities. They cannot be stereotyped except in one sense that they are all Pakistanis. It is therefore unfair to leave everyone else out when discussing corruption and focus only on politicians on the assumption that if you catch the big fish, the small fish will either leave the pond or will learn to become honest. NAB has been in existence for over two decades but there has been no significant reduction in the level of corruption. In 1999 when General Musharraf established NAB replacing the politicised Quomi Ehtesab Bureau, Pakistan scored 87 out of 99 in the Transparency International’s (TI) Corruption Perception Index (CPI). In 2008, when General Musharraf left power and PPP was elected in government, TI’s CPI ranking for Pakistan was 134 out of 180. In 2013 when PML (N) came to power, Pakistan’s CPI rank was 127 out of 177. In 2018, when PTI formed government, TI’s CPI for Pakistan was 117 out of 180. In 2019 it slipped 3 points to 120 out of 180.
In Pakistan corruption is only a matter of opportunity. A poor village schoolmaster is honest only because he does not have the opportunity to make dirty money. Give him a revenue position, or a public dealing office with discretionary powers and then test his honesty. In ten years he will be trying to hide his illegally acquired assets in the same way as this country’s parliamentarians and bureaucrats have done when filing their asset returns, or as the businessmen and bankers have done by investing in offshore companies or purchasing overseas properties from illegally laundered money.
Institutional autonomy of an institution is as good as the people it employs to achieve its tasks and vice versa. A deficit of either compromises national credibility and affects the image of the institution and ultimately the State it represents globally. Within a couple of years after its establishment in October 1999 NAB abandoned its mission of catching the big alligators. Using NAB’s privileged information, General Musharraf prevailed upon compromised politicians and succeeded in forcing them to leave PML (N), as well as PPP, to support his martial law government. In 2007 President Musharraf signed the infamous National Reconciliation Order (NRO), which was later declared unconstitutional by the Supreme Court in 2009. NAB paid a heavy price for compromising its independence and instead of bringing stolen monies back home, it ended up paying hefty fines to overseas agents and creditors.
Since its establishment, NAB has had nine Chairmen. Among them four were ex-army generals, one ex-navy admiral, two retired judges, and two former bureaucrats. The Chairman is appointed by the President following consensus between the Prime Minister and the Leader of the Opposition for a term of four years.
Despite its wide experience in signing international investment contracts, Pakistan’s reputation suffered badly after a series of embarrassing setbacks, which placed Pakistan on the global spotlight for all the wrong reasons. In July 2017, a World Bank inter-state dispute settlement body, International Centre for Settlement of International Disputes (ICSID) asked Pakistan to pay US $5.976 billion to a foreign mining firm, Tethyan Copper Company for damages arising from the denial of a mining lease application following TCC’s feasibility work in the Reko Diq area of Baluchistan. In December 2020 a British Virgin Island court ordered attachment PIA’s Roosevelt Hotel in New York and Scribe Hotel in Paris, as well as freezing of PIA’s 40% interest in a company Minhal Incorporated, to enforce the payment of the TCC award by Pakistan. As of writing, the case is still on.
In 2017 the ICSID also asked Pakistan to pay $ 1.2 billion to a Turkish power company KKEU for damages arising out of the cancellation of a rental power agreement in 2013. The matter was, however, amicably resolved in November 2019 after President Erdogan accepted the request of Prime Minister of Pakistan to intervene in the matter and forego the penalty.
These adverse judgments against Pakistan reveal three things about international contracts: that these are not properly negotiated in the national interest perhaps due to incompetence of officials or due to political pressure to rush into signature; that the monitoring of implementation of agreements is either deficient or non existent to challenge the other party for any non-compliance; and that revocation of contracts without following through the dispute resolution mechanism not only costs the treasury financial losses but also taints its image as a country having little respect for the rule of law. Only time will reveal the true status of many other commercial agreements signed between Pakistan and other international companies.
In July 2019 the High Court of England and Wales upheld the December 2018 award of the London Court of International Arbitration (LCIA) in favour of an asset tracing company Broadsheet LLC, requiring Pakistan to pay $21.6 million for damages arising from the cancellation of a contract in 2003, in addition to payment of $11 million in costs and damages. NAB could not provide proof that it held Broadsheet LLC accountable for underperforming the contract. On the other hand, the claimants established that NAB had not cooperated with them in catching the identified targets for which they provided information. Pakistan appealed against the decision at the London High Court but lost the case in July 2019. The award was subsequently converted into a third party debt and paid by Pakistan, following a London High Court’s Financial Division’s order of 17 December 2020 for making payment to Broadsheet LLC by 30 December 2020.
In January 2021, a PIA commercial flight was prevented from flying back to Karachi from Kuala Lumpur after a local court ordered the plane’s custody for non-payment of lease charges. PIA subsequently paid $ 7million to the owners of the leased plane while their dispute was already before a London court on this matter.
These cumulative losses to the national exchequer were incurred in foreign exchange and do not take into account the billions of Rupees spent by NAB for hiring defence lawyers and travel and administration expenses.
With high level of corruption is found in every field involving commercial fraud, under invoicing, tax evasion, fake real estate and construction projects, corrupt practices by bureaucrats and stealing of public assets, including real estate, by fake documents and fraudulent entries, the ‘raison d’etre’ for the existence of NAB is not in question. What is in question is its mandate and method of recovery. In fact it is the method, which makes NAB an object of political bashing, threats and inducements. With discretionary powers left in the hands of NAB officials to negotiate plea bargains, it is obvious that a share of blame will also come to them for a conflict of interest. How can a traffic constable have the authority to issue a fine for traffic violation and at the same time say he is willing to settle the fine with the violator without inviting criticism? Due to their plea bargaining powers, NAB officials are unfortunately placed in great deal of psychological and political stress. Those who resist inducements find themselves suffocated in a sea of corruption. Others break down and resign or commit suicide. Some become part of the very corrupt environment they are employed to challenge and change. This is not sustainable.
The corrupt elements in the society shout at the top of their voice against the performance of NAB and call for its dismantling, but when they are caught red handed, they get away by simply returning the stolen money in part or full without payment of interest, costs or damages. The victims of fraud, whether, government or public, remain uncompensated for the fraud, and NAB ends up spending public money to trace and prove corruption. The civil society is luckily insulated against the pressure NAB goes through in bringing every major case to light, but it conveniently holds NAB responsible for every bad headline on the subject of corruption. Does NAB really deserve it? It depends who you ask this question.
With this in view the following recommendations are presented to the government for the reform of NAB.
1) The Law governing the constitution and mandate of NAB is the National Accountability Ordinance 1999 (xviii of 1999) and the National Accountability Amendment Act 2016. This needs to be replaced by a Constitutional Amendment Act to make NAB an autonomous body under the Constitution such as the Election Commission of Pakistan with its own independent mandate, recruitment authority and budget. NAB Chairman should have the power to seek information from all government agencies and establish its own Joint Investigation Teams using the power to engage State resources to aid its anti corruption work.
2) As an exception to the rule, NAB staff should be selected through international recruitment without the condition that they should be Pakistan nationals. This is to help NAB get the best of expertise in preventing money laundering and bringing back all illegally acquired proceeds abroad. The Parliament should also fix the minimum level of corruption in monetary terms that should come under NAB’s purview unless other agencies of the government have failed to recover it and the amount in question justifies NAB’s involvement.
3) The power of plea-bargaining should be removed from NAB to avoid any semblance of conflict of interest. Instead, NAB should be empowered to initiate independent enquiries, investigate complaints and warn the accused to pay up the stolen money together with accrued interest, costs and damages. Persons who agree to return stolen money should be given repayment plans with unmovable deadlines after which their cases should be referred to court for attaching their family properties for public auction. If the concerned persons pay the total money with interest, costs and damages in a short term, they should not be referred to the courts for criminal conviction, nor should they be named and shamed publicly. The message of NAB should be: “feel free to indulge in corruption, but if you are caught you will pay dearly”.
4) Parliament should approve the doubling of the number of accountability courts from the current 30 to 60 to hear NAB references and expedite them in maximum three hearings. There is an absolute necessity to increase the current number of judges deputed to hear NAB cases.
5) Parliament should enact legislation to encourage greater coordination between NAB and other agencies of the state in investigating fraud and exchanging intelligence to build its prosecution.
6) The performance of NAB should be reviewed by Parliament every year on the basis of moneys recovered. The NAB chairman should set out the targets and a work plan for the year ahead and highlight it in his institution’s Annual Report for the preceding year to assess NAB’s performance.
7) Parliament should enact legislation to fix the jail terms for convictions and other punishments such as suspension from job, withdrawal of passports etc including for convicted corrupt bureaucrats, politicians and serving military officers deputed to civilian posts outside their military roles, in order to set the parameters of punishment in proportion to the fraud committed. This will facilitate the Accountability Courts’ work in speedily disposing of convictions after due process.
8) NAB should summon a person to answer an enquiry not when a complaint is received, but when NAB has gathered sufficient information about the complaint and has ascertained through state resources that there is indeed a case for fraud or occurrence of public loss due to wilful negligence. It is unfortunate fact that NAB arrests high profiled personnel on corruption charges but keeps asking the courts to extend their custody under judicial remand in order to complete its investigation. This is not justice. This only weakens the case of NAB against corruption and gives it a political colour even if NAB is not politically influenced.
9) Cases referred by NAB to accountability courts should be dealt with the same seriousness and speed as terrorism cases. The objective of the courts should be to dispense justice but to also convey the message to the public that listening to NAB to pay up is easier for the corrupt than have their cases referred to the courts. No case should take more than three hearings or ninety working days, whichever is earlier. If respondents do not appear in hearings with the exception of leave granted for death of immediate relatives, court proceedings should continue in absentia and judges should issue ex-parte verdicts, which should be upheld on appeal. The convictions should not only include full and immediate return of stolen money with interest and costs of NAB, as well as the cost of accountability court, but also a jail term depending upon the volume of fraud involved.
10) NAB should be politically blind in addressing corruption and ensuring that those involved are brought to the book irrespective of their profession, political standing, social status, ethnicity or faith.
This is as far as NAB can go in eliminating corruption in the country. However, there is another side to addressing the culture of corruption and calling everyone fake and a robber. The government and opposition are unfortunately so much caught in their own anti-corruption narrative that there is nothing positive to convey to the common man. This narrative has divided the nation into two groups, the pro government group and pro opposition group, each accusing the other of corruption and stealing. Both the government and opposition need to stop walking this dangerous course because they are unwittingly making the work of NAB hard. The people want to hear from the government what it is doing to create new wealth instead of telling them that it is trying to bring the stolen billions to fill their pockets. As payment of court awards on foreign court orders has shown, this will never happen. The opposition should also put a break on its mantra of accusing the ruling party of hiding its corruption and instead give the people an alternate shadow policy on things that matter to them most such as reviving the economy, improving health and education, reducing poverty and reinvesting in infrastructure and industry. If they fail to breach this gap, a new bounty hunter smarter than them will always fill the vacuum and take away whatever little is still left in the public kitty.
Mr Syed Sharfuddin is a former Special Adviser, Political Affairs Division, in the Commonwealth Secretariat, London, UK.