Legislators, declarations & accountability

Huzaima Bukhari & Dr. Ikramul Haq

The Election Commission of Pakistan (ECP) on January 15, 2020 suspended the memberships of 318 lawmakers of the provincial assemblies, National Assembly and Senate, including Minister for Science and Technology Fawad Chaudhry, Law Minister Farogh Naseem and Minister for Religious Affairs Noorul Haq Qadri for failing to submit the annual details of their assets within the deadline— Three ministers among 318 lawmakers suspended for not declaring assets, Pakistan Today, January 16, 2020

“Top political leaders, federal and provincial ministers and constitutional office holders are among 495 lawmakers who failed to submit their annual statements of assets and liabilities with the Election Commission of Pakistan by the due date (December 31)”—495 lawmakers fail to submit statements of assets with ECP, Dawn, January 3, 2020.  

“Person who was untruthful or dishonest or profligate had no place in discharging the noble task of law making and administering the affairs of State in government office”—Muhammad Siddique Baloch v Jehangir Khan Tareen PLD 2016 Supreme Court 97

Every year a large number of legislators—Senators, members of National and Provincial Assemblies—fail to file their annual statements of assets and liabilities to the Election Commission of Pakistan (ECP) in time. It has become a routine matter. The ECP, under the law, just temporarily suspends their membership and after filing of the required statements belatedly the same stands restored. If lawmakers are lax [non-compliant] about their own personal legal obligation, whet can be expected of their ability, rather responsibility, to ensure rule of law in the country, which is the very fundamental of democracy? This state of affairs needs serious consideration—the existing law, the Elections Act, 2017 [hereinafter “the Act”] should be amended providing heavy daily fine for the late filing, if no bona fide reasons are provided for extension (presently no provision exists for seeking extension). In case of repeated lapse for two years, the defaulting legislators should be disentitled them from taking part in elections for at least one term.

There were 495 defaulters violating section 137(1) of the Act this year failing to file declaration by December 31, 2019. These as per a report, include 166 members of the National Assembly, 32 members of the Senate, 190 members of the Punjab Assembly, 82 members of the Sindh Assembly, 85 members of the Khyber Pakhtunkhwa Assembly and 40 members of the Balochistan Assembly. The report further reveals:

 “The defaulting NA members include former president Asif Ali Zardari, PPP chairman Bilawal Bhutto-Zardari and former prime minister Raja Pervez Ashraf.

 The list also includes Defence Minister Pervez Khattak, his son-in-law Dr Imran Khattak, Minister of State for Narcotics Control Shehryar Afridi, Minister for Science and Tech-nology Fawad Chaudhry, Minister for Inter-Provincial Coordination Dr Fehmida Mirza, Minister for Water Resources Faisal Vawda, Minister for Education Shafqat Mehmood, Minister of State for Climate Change Zartaj Gul, Minister for Religious Affairs Noorul Haq Qadri, Aviation Minister Ghulam Sarwar Khan, Rail-ways Minister Sheikh Rashid Ahmad and his nephew Sheikh Rashid Shafique and Minister for Maritime Affairs Syed Ali Haider Zaidi.

Other such prominent members of the National Assembly include Syed Fakhar Imam, Amir Haider Azam Khan, Aamer Mehmood Kiyani, Khurram Dastgir Khan, Foreign Minister Shah Mehmood Qureshi’s son Zain Hussain Qureshi, Shazia Marri, Asif Zardari’s brother-in-law Mir Munawar Ali Talpur and Nawabzada Shah Zain Bugti.

 Prominent among women members of the National Assembly on the list include Musarrat Asif Khawaja, Maleeka Ali Bokhari, Kanwal Shau-zab, Maiza Hameed, Munaza Hassan, Mehreen Razzaq Bhutto and Nafeesa Khatak. Seven minority MNAs on the list are: Lal Chand, Ramesh Kumar Vankwani, Jai Parkash, Jamshed Thomas, Kesoo Mai Kheeal Das, Naveed Aamir and James Iqbal.

The 32 Senators who did not submit their statements of assets include Law Minister Dr Farogh Naseem, Deputy Chairman of the Senate Saleem Mandviwala, former Senate chairman Mian Raza Rabbani, Mustafa Nawaz Khokhar, Pir Sabir Shah, Mir Hasil Bijenjo, Musadik Malik and Sarfaraz Bugti.

Prominent among women senators include Sassui Palejo, Rukhsana Zuberi, Quratulain Marri and Mehar Taj Roghani.

The 190 members of the Punjab Assembly who failed to meet the mandatory legal requirement include Chief Minister Usman Buzdar and provincial ministers Mohammad Basharat Raja, Malik Mohammad Anwar, Yasir Humayun, Gulrez Afzal Gondal, Ansar Majeed Khan Niazi, Zaheerud Din, Mehar Mohammad Aslam, Mian Khalid Mehmood, Mian Aslam Iqbal, Mian Mehmood-ur-Rasheed, Mohammad Hashim Dogar and Samiullah Chaudhry.

 The 82 members of the Sindh Assembly who are yet to file statements include Chief Minister Syed Murad Ali Shah and provincial ministers Saeed Ghani, Mir Shabbir Ali Bijarani, Sohail Anwar, Dr Azra Fazal Pechuho and Syeda Shehla Raza.

Later, the ECP in compliance of section 137(3) of the Act (those failed to submit the statements by January 15, 2020) suspended membership of 318 lawmakers “until they file relevant documents”! According to a report:

“Lawmakers whose membership was suspended include Pir Sabir Shah, Fawad Chaudhry, Farogh Naseem, Farrukh Habib, Birjees Tahir, Zartaj Gul, Amir Liaquat, Raja Pervaiz Ashraf, Noorul Haq Qadri, Amir Kayani, Muhammad Ayub, Hasil Bizenjo, Taj Afridi and others.

 A total of 70 MNAs, 12 senators, 115 Punjab MPAs, 60 MPAs from khyber Pakhtunkhwa, 40 Sindh MPAs and 21 from Balochistan were suspended by the ECP.

 On January 2, the Commission released a list of nearly 600 members of parliament and four provincial assemblies for their failure to submit the details of their assets and liabilities and those of other members of the family.

 Under the law, all the legislators are required every year by December 31 to file the related documents to the electoral body, which has the mandate to carry out scrutiny of the same, if it deems fit and find discrepancies. On non-compliance, the ECP bars them from performing their duties as legislators and their membership can be restored on compliance with the legal requirement.

 The members of the federal cabinet, who have not been able so far to comply with this requirement, can be barred from performing their official duties. The Election Commission, traditionally, gives two more weeks to the legislators besides the deadline and after that the names of non-compliers are notified and the relevant legislatures are moved to bar them from attending sessions”. 

In the past the ECP had been notifying suspension of many legislators for not filing statements in time but what happened—they later filed and took it in a very non-serious matter. Those have failed to file this year, knowing no penal action would be taken or even possible, will do the same as was done in the past. How many have made compliance till today after lapse of 12 days or are still continuing with non-submission  is not made public. No such information is available on the website of ECP updated on daily basis, despite the fact that it should proactively reveal this under the Right of Access to Information Act of 2017 voluntarily, in conformity with Article 19A of the Constitution of the Islamic Republic of Pakistan [“the Constitution”] which is fundamental right of citizens providing: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. It is shocking that the list included the name of Dr Farogh Naseem, who as Federal Law Minister, should be a role model for others legislators in complying with the law under discussion.

The position last year was that ECP suspended 332 legislators [as compared to 495 this year]. The ECP in its notification said that the Act requires that "every Member of an Assembly and Senate shall submit to the Commission, on or before 31st December each year, a copy of his statement of assets and liabilities including assets and liabilities of his spouse and dependent children".

In 2017, it was reported in Press that: “Eighty-four legislators were not allowed to enter the Punjab Assembly to join the session……ECP suspended their membership for failing to submit details regarding their assets….” That year ECP suspended the membership of 261 lawmakers—the highest numbers were from Khyber Pakhtunkhwa (30.7%), followed the Sindh Assembly (29.7%), the Punjab Assembly (22.6%), the National Assembly (20.7%), the Balochistan Assembly (16.9%) and the Senate (6.7%).

The data for 2017 to 2019 reproduced above testifies to the perpetual (mis)behaviour on the part of a large number of legislators of all political parties showing laxity in complying with a law that is important from many aspects—transparency and probe into their financial/tax affairs for which no effective mechanism is adopted till today. The (mal)practice is being committed since long and way back in 2011, according to a report, ECP wrote letters to Senate Chairman, and Speakers of National Assembly and Provincial Assemblies, asking them not to allow 231 members of parliament to participate in the process of law making. It is time that bodies like Pakistan Institute of Legislative Development & Transparency (PILDAT) take up this matter and publish annual data with the help of ECP to inform masses how the legislators were flouting the law with impunity and ultimately how much time each defaulter took to get restoration of suspension!

Unfortunately, the submission of declarations (late or in time) by lawmakers even before and after the passage of Election Laws, 2017 remains a formality. ECP simply receive these as a post-office and publish the same in the official gazette without any verification/scrutiny. Many lawmakers conveniently ignore the requirement of submitting statements of assets of their spouses and dependents, for reasons best known to them. Many just say “as before”. It is a matter of record that in many cases, the value of assets is understated. Many as per declarations do not own any vehicle, but are seen moving in motorcades! Many allegedly [against some action is taken by National Accountability Bureau (NAB)] hold properties abroad through offshore companies or benami but do not mention any interest outside Pakistan in any property or business.

In an article, The corrupt, tax cheats, ‘secrecy’ & RTI, the vital issue of role of NAB, FBR in scrutinising the declarations of the legislators is raised as under:

“It is well-established that the role of National Accountability Bureau (NAB) in curbing perpetual and growing corruption since its inception has been highly disappointing. Even after submission and re-submission of reports of “mega corruption cases” before the Supreme Court, NAB has failed to prosecute a single big fish. But the important question is how Federal Board of Revenue (FBR) will proceed against those taken out of jurisdiction of NAB as majority has already availed Foreign Assets (Declaration and Repatriation) Act, 2018, Voluntary Declaration of Domestic Assets Act, 2018, Assets Declaration Ordinance, 2019 and Assets Declaration Act, 2019 as well as secured complete confidentiality? What mechanism and tools does it possess that can confirm that assets whitened were not created out of proceeds of crime? Against the men in power and parliamentarians, who could not even avail the above amnesties as clearly debarred, FBR in the past miserably failed to show any inclination to proceed against them. It is evident from Tax Directories of Parliamentarians, published by FBR from 2013-18 that vast majority of them declared meagre incomes that never matched their standard of living but no question is/was ever posed, let alone taking any action as is/was done in the case of many ordinary citizens.

In a Press report, ‘Parliamentarians, Imran, tax expert raises questions about outcome of audit’ [Business Recorder, October 27, 2018] a vital question was raised: what was the outcome of cases of parliamentarians selected for audit through random balloting last year. What was the result of the audit of parliamentarians including Prime Minister Imran Khan whose case was selected for audit in the past?” It may be recalled that many parliamentarians were selected for audit for Tax Year 2015-16 through computer ballot using parametric selection mechanism but FBR failed to take appropriate action or at least never divulged the details of how much extra tax was collected. FBR is totally politicised and muzzled by men with money power and having track record of inefficiency and corruption as well as accommodating the government of the day and victimizing its political adversaries and is totally incapable of doing accountability the Prime Minister has been claiming would be done”.

Thorough scrutiny of legislators’ declarations by any competent person can lead to the disqualification of a majority of them for making misrepresentations under oath as most of them cannot justify their standard of living vis-à-vis disclosure of meagre salary income from the State as their only source of income. Unfortunately, all agencies like, NAB, Federal Investigation Agency (FIA), (FBR and ECP have so far failed to discharge their duties, especially that of investigating the financial/tax affairs of legislators in an effective manner. The same is true for other powerful segments of society—generals, judges and high-ranking civil servants. They claim they have strong internal systems of check and balances but record shows hardly any convictions on the charges of corruption.

All senators, members of the national as well provincial assemblies are bound under section 137 of the Act to submit a statement of assets and liabilities of their own, along with those of their spouses and dependents annually to the ECP. It reads as under:

137. Submission of statement of assets and liabilities.—(1) Every Member of an Assembly and Senate shall submit to the Commission, on or before 31st December each year, a copy of his statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding thirtieth day of June on Form B.

(2) The Commission, on the first day of January each year through a press release, shall publish the names of Members who failed to submit the requisite statement of assets and liabilities within the period specified under sub-section (1).

(3) The Commission shall, on the sixteenth day of January, by an order suspend the membership of a Member of an Assembly and Senate who fails to submit the statement of assets and liabilities by the fifteenth day of January and such Member shall cease to function till he files the statement of assets and liabilities.

(4) Where a Member submits the statement of assets and liabilities under this section which is found to be false in material particulars, he may, within one hundred and twenty days from the date submission of the statement, be proceeded against for committing the offence of corrupt practice.

Section 138 of the Act says:

138. Publication of statement of assets and liabilities.— The Commission shall publish in the official Gazette the statements of assets and liabilities received by it under section 137 and any person may obtain copies of a statement of assets and liabilities on payment of prescribed fee.

It is worth mentioning that ECP on November 28, 2016 decided to reactivate its Political Finance Wing for the purpose of random scrutiny of the declarations of assets and liabilities of legislators. This decision came in the wake of disqualification petitions against Nawaz Sharif, his offspring and son-in-law, Federal Finance Minister, Chairman and General Secretary of Pakistan Tehreek-e-Insaaf etc.

According to a Press report, ECP started scrutinising the declarations of as many as 100 parliamentarians—the process was initiated from December 1, 2016 but its results are yet not made public. The citizens do not even know whether the proceedings have been completed or still in progress after lapse of three years. The Political Finance Wing of ECP was reportedly to seek help of FBR, Auditor General, provincial revenue departments, FIA and other institutions. Political Finance Wing and Confidential Wing of ECP were earlier merged into a Directorate for carrying out the task of scrutiny. In 2016, it was said by ECP that “if any legislator is found guilty of concealing his assets or making any other false declarations, he/she is considered committing “corrupt practices….” People have a right to know under Article 19A of the Constitution the results of probe against the said 100 legislators. What is the position after the Act?  Now, section 137(4) of the Act specifically requires: “Where a Member submits the statement of assets and liabilities under this section which is found to be false in material particulars, he may, within one hundred and twenty days from the date submission of the statement, be proceeded against for committing the offence of corrupt practice”. Has ECP initiated the process under the above provision of law? How many legislators has it selected after 2016 for detailed scrutiny? All these questions need response from ECP on urgent basis. 

Critics say that process of scrutiny by ECP in 2016 was nothing more than eyewash. There was no meaningful coordination between ECP and State Bank of Pakistan (SBP), Securities & Exchange Commission of Pakistan (SECP), FBR, NAB or FIA or any other department to cross-check the data submitted by legislators. So long as these institutions are subordinate to powerful political masters, there cannot be an independent and result-oriented scrutiny of declarations of the legislators.

The politicians claim that main problem is how to deal with powerful bureaucrats who are inefficient and corrupt. While expressing helplessness before bureaucracy, they repeatedly and shamelessly pass laws giving amnesties/immunities to tax evaders and looters of national wealth. They also provide them complete secrecy and confidentiality. Who are beneficiaries of such schemes? Who need protection behind the provisions of “confidentiality”, availing amnesty schemes? There exists an unholy alliance between the politicians and bureaucrats. Bureaucrats please their political masters and in return get favours. If elected representatives are sincere, they should pass asset-seizure legislation and confiscate all the ill-gotten money and untaxed assets. This step will not only ensure accountability and transparency but solve the most pressing issue of burgeoning fiscal deficit and mammoth debt burden.

The best way to scrutinise the veracity of declaration of lawmakers and all persons in the service of Pakistan is through constituting a Joint Parliamentary Standing Committee on Asset Disclosures & Investigation of National assembly and Senate that can seek the help of experts or through an independent commission comprising retired judges and officers having skills and impeccable reputation. This House Committee or an Independent Commission against Corruption, if consensus is not reached on Joint House Committee, should be empowered by proper legislation to examine the declarations of lawmakers and order concerned departments to probe sources of acquisition of assets and expenses etc.

It is high time that all political parties should seriously consider enacting a comprehensive law, ‘Investigation of Declarations of State Functionaries & Public Representatives’. It should cover judges and generals and all civil servants. Under this law, SBP, FIA, FBR, ECP and any other department or institutions should be obliged to share with Joint Parliamentary Standing Committee on Asset Disclosures & Investigation or Independent Commission of Corruption, headed by a retired Jude of Supreme Court, all declarations filed by persons, serving in judiciary, in the service of Pakistan (civil and military), holding public offices and elected representatives or any other information specifically required for any investigation.

The Joint Parliamentary Standing Committee on Asset Disclosures & Investigation or Independent Commission of Corruption can compare declarations filed under the Civil Servants Act, 1973, Army Act, 1952 and related rules, Election Laws, Act, 2017, with those filed under the Income Tax Law or with any other department for any purpose. In case of any discrepancy or proof of suppression and/or and concealment (may be provided by anybody or a whistleblower), the Joint Parliamentary Standing Committee on Asset Disclosures & Investigation or Independent Commission of Corruption can refer the matter to the relevant department/authority e.g. SBP, FBR, NAB, FIA, military authorities, as the case may be, to take action under the law. This is the desirable/reliable system of accountability, adopted by many countries known to be highly transparent as per authentic surveys and indices. Is Prime Minister, Imran Khan, championing the cause of accountability, ready to initiate this process? His response will show whether he is sincere or only uses corruption and accountability as rhetoric for political popularity.

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The writers, lawyers and authors and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).