Legal Structures to address the Problem of Corruption in Pakistan

Legal Structures to address the Problem of Corruption in Pakistan Dr Azeem Ibrahim BSc. MSc(Econ). MBA. MPhil. DLitt (Hon). FRSA. PhD (Cambridge) Commissioned by Pakistan Tehreek-e-Insaf Party Chairman Imran Khan

December 2012

Legal Structures to address the Problem of Corruption in Pakistan

About the Author

Dr Azeem Ibrahim was named one of the Top Global Thinkers of 2009 by the LSDP European Social Think Tank and a Young Global Leader by the World Economic Forum. With a PhD from the University of Cambridge, Dr Ibrahim is highly in demand for his expertise in the area of geopolitical strategy. He has advised many world leaders in recent years and served as an International Security Fellow at Kennedy School of Government at Harvard, a World Fellow at Yale and an Adjunct Research Professor at the Strategic Studies Institute.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Executive Summary This report reviews the key issues in creating a legal framework that will allow Pakistan to address the problem of corruption. As such it pays relatively little attention to the related issue of how to implement such a framework but instead argues that without an effective legal basis, no level of commitment will make a significant difference. Corruption is a major problem. It sees public resources mis-allocated and what should be disinterested public administration conducted in the interests of narrow groups rather than the populace as a whole. Equally it creates the environment in which organised crime can become embedded in the state. In addition, the nature and scope of corruption varies over time. So, for example, a number of states have recently started to pay attention to the regulation of professional lobbyists as these too represent one means by which public administration can be distorted in the interest of specific groups. In addition, the growing use of the private sector to deliver services on behalf of the state is creating new conflicts of interest and new sources of corruption. In summary, the paper argues that an effective corpus of anti-corruption legislation rests on three related pillars: 1. Disclosure of assets and information; 2. Clear definitions of what is meant by corruption; 3. Protection of whistle-blowers. These are all closely related. A requirement for the open disclosure of assets held by ministers and public officials is a owerful means to reduce the capacity to hide the proceeds from corruption. In effect, it has the potential to reveal when an individual has assets that are in excess of what could be afforded from their notional salary. Related to this is the need for effective Freedom of Information (FOI) legislation. FOI legislation is particularly useful to expose corruption in the award of state contracts so it is important that it covers any organisation undertaking to provide services that are paid for from public funds. A clear definition of corruption is essential as it forms the basis for an effective legal code. Specific issues include the receipt of gifts, restraint on taking up employment after leaving public service (either as a minister or an official), interaction with non-national companies as well as defining the range of who is covered (again not just ministers or public officials but also employees of private companies).

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

The final element is effective protection for whistle blowers. If disclosure legislation is designed to ensure openness and corruption legislation is designed to define what is meant by corruption, then whistleblowing is a key element to enforcement. In effect, it is often employees within public funded institutions who are most aware of corruption and encouraging them to report this, and protecting them when they do, is a powerful tool in reducing corruption. These three themes are explored by looking at legislative examples from across the world. Most instances are drawn from countries that are exiting a period of authoritarian rule (such as Turkey or the ex-Soviet Republics) and wrestling with a deep seated culture of corruption. As such, the focus is on the legal structures they are creating not an evaluation of the effectiveness of their implementation. Each country has its own past, its own culture, its own legal norms and its own challenges. However, structures developed in other states, promoted by bodies such as the United Nations or pressure groups such as Transparency International can be adapted. Lessons are slowly being learnt and gaps slowly being addressed (even as new problems emerge) and all states can benefit from a careful consideration of existing and developing practice in other regimes.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Table of Contents

1: Introduction

1

2: Transparency

4

2.1

4

Conflict of Interest Legislation

2.1.1

General Issues

4

2.1.2

Detailed Issues

6

2.1.2.1

Definition of Conflict of Interest

6

2.1.2.2

Transparency and Scrutiny

11

2.1.2.3

Sanctions and Monitoring

13

The Polish Example

14

2.1.3.1

General Principles

15

2.1.3.2

Specific policies

16

2.1.3.3

Preventing Conflicts of Interest

17

2.1.3.4

Disclosure of private interests

18

2.1.3.5

Compliance and Penalties

19

2.1.3.6

Tendering and Public-Private Partnerships

20

2.1.3

2.2

2.3

Disclosure Legislation

21

2.2.1 Personal Disclosure

21

2.2.1.1 Overview

21

2.2.1.2 Draft Model Legislation

23

2.2.2 Corporate Disclosure

24

Freedom of Information (FOI) Legislation

25

2.3.1 General Issues

26

2.3.2 Detailed Issues

28

2.3.2.1 Define what bodies are covered

29

2.3.2.2 Define who can request information

31

2.3.2.3 Define what information is covered

32

3: Corruption 3.1 Case Studies

37 37

3.1.1 India

37

3.1.1.1 Framework

37

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

3.1.1.2 Legal Basis

39

3.1.2

40

Georgia

3.1.2.1 Framework

41

3.1.2.2 Legal Basis

42

3.1.3 Turkey

44

3.1.3.1 Framework

44

3.1.3.2 Legal Elements

44

3.1.4 Vietnam

47

3.1.4.1 Framework

47

3.1.4.2 Legal Basis

48

3.2 Key Principles

50

3.3 Legislative Examples

51

4: Whistleblowers

53

4.1 Overview

53

4.1.1 Bangladesh

53

4.1.2 Canada

54

4.1.3 India

54

4.1.4 Georgia

54

4.2 Draft Legislation

56

5: Conclusions

57

References

59

Annex 1: Sample Legislation on Lobbying

63

Annex 2: Draft Model Legislation: Disclosure of Assets

70

Annex 3: UN Draft Corruption Legislation

83

Annex 4: Draft Legislation – Protection of Whistleblowers

119

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1: Introduction Corruption has a deeply corrosive effect on the fabric of a society.

It

distorts access to key goods and services and creates networks of clients that disrupt other processes of governance. Over time, corruption starts to interlink with organised crime1 creating deep-seated problems that are hard for any state to overcome. Corruption is a problem for many states in the world, especially those exiting a period of authoritarian rule and seeking to rebuild a new set of social and governmental norms.

It has become a focus of many international bodies

including the UN2 which is both placing external pressure on member states to comply and providing a framework within which the necessary legislative and state structures can be constructed. Article 10 of the UN Convention on Corruption3 argues that as a minimum, states should: 1. Adopt procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public; 2. Simplify administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and 3. Publish information, which may include periodic reports on the risks of corruption in its public administration A number of states have, at least theoretically, set out to reduce or eliminate corruption and the key elements that have led to some success are now well known. These are a combination of political commitment, the creation of controls from an informed and empowered civil society, increased knowledge of the earnings and assets of politicians and senior officials and the creation of a legal framework around bribery, corruption, transparency and protection for

1

Glenny, M. 2008. McMafia: Crime Without Frontiers, London, Bodley Head. UNCAC. 2012. About the Coalition [Online]. UNCAC Civil Society Coalition. Available: http://www.uncaccoalition.org/en/about-us/about-the-coalition.html [Accessed 24 June 2012]. 3 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN. 2

1

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

whistle-blowers4. In many instances, the pressure for change has been external, as in the case of Turkey with the process of applying for EU membership. In some ex-Soviet Republics the process of applying for membership of various international bodies has created external pressures that have been adapted by those seeking change5. This paper concentrates on the legal framework needed rather than issues of ensuring implementation in practice. Obviously, the two issues are closely related but ensuring an effective legal code is a necessary precondition regardless of the commitment, or otherwise, in practice. An effective legal framework consists of: 1. Transparency legislation (that addresses both disclosure of assets and Freedom of Information); 2. Bribery and corruption legislation; and, 3. Legislation to protect whistleblowers At the moment in Pakistan #1 and #3 are largely absent, although a draft FOI bill was proposed in 20026.

Equally there is very limited protection for

whistleblowers except in the limited framework of some international agreements7. There is a body of anti-corruption law but this was inherited from the British colonial administration on independence8. One enduring weakness in the current legislation is quite simply that there is no definition of what constitutes corruption9. A second problem is the reliance on provincial-based legislation that, limits the reach of the law as it can only be applied to crimes committed in that particular province. In general, there are multiple laws in Pakistan which overlap to some

4

Hanna, P. R., Bishop, S., Nadel, S., Scheffler, G. & Durlacher, K. 2011a. The effectiveness of anticorruption policy What has worked, what hasn’t, and what we don’t know. In: Eppi-Centre, S. S. R. U. (ed.). London: Institute of Education. 5 Dagi, I. 1996. Democratic Transition in Turkey, 1980-83: The Impact of European Diplomacy. Middle Eastern Studies, 32, 124-141, Soyaltın, D. 2012. Europeanization Decoupled? Fighting Corruption in Turkey [Online]. Research Turkey. Available: http://researchturkey.org/wp/wordpress/?p=1205 [Accessed 24 June 2012]. 6 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 7 Sajjad, A. 2010. Sarbanes Oxley and Pakistan: way forward? [Online]. Karachi: ACCA. Available: http://www2.accaglobal.com/databases/pressandpolicy/pakistan/sox [Accessed 24 June 2012]. 8 United Nations. 1947. The Prevention Of Corruption Act, 1947 [Online]. Available: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047878.pdf [Accessed 24 June 2012]. 9 Taj, A. 2012. Problem of corruption [Online]. Lahore: Dawn. [Accessed 24 June 2012].

2

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

extent, have gaps10 and, even worse, some have been drafted so as to specifically protect particular interest groups. No country that has faced endemic corruption has managed to solve the problem in the short term and there are always problems in translating the experience of other countries; nonetheless legislation developed in other parts of the world can be used as a template.

Turkey11, and some of the ex-Soviet

Republics12, are examples of countries making a serious commitment in this respect. India is a state argued to have developed comprehensive legislation to deal with corruption in the public sector but lacks suitable legislation to cover the private sector13. When the recent whistleblower legislation14 (‘Whistleblowers’ Protection Bill, 2011) was extended to include ministers, defence and intelligence agencies and banks, it excluded the private sector. The balance of this paper discusses the legal frameworks required in terms of transparency, corruption and the protection of whistleblowers.

Where

appropriate, this draws on detailed analysis of legislation elsewhere that might be applicable for Pakistan. In turn the four annexes repeat verbatim draft legislation that has been developed in terms of regulation of lobbying, for disclosure, about corruption and to protect whistleblowers.

This needs to be adapted to local

circumstances and local legal norms, but forms a useful baseline and reflects existing good practice.

10

Ibid. Soyaltın, D. 2012. Europeanization Decoupled? Fighting Corruption in Turkey [Online]. Research Turkey. Available: http://researchturkey.org/wp/wordpress/?p=1205 [Accessed 24 June 2012]. 12 OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 13 IBNLive. 2012b. Govt mulling private sector corruption law [Online]. Available: http://ibnlive.in.com/news/govt-mulling-private-sector-corruption-law/261894-3.html [Accessed 24 June 2012]. 14 The Hindu. 2011. Whistle-blowers Bill passed [Online]. New Delhi: The Hindu. Available: http://www.thehindu.com/news/national/article2752946.ece [Accessed 24 June 2012]. 11

3

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

2: Transparency The legislation around transparency can be divided into three categories. One part is to ensure that potential conflicts of interest are reported15; the second is designed to ensure that politicians and state officials have to disclose their assets and sources of wealth; the third is connected to the more general issue of making information freely available. In combination, these have the effect of improving public knowledge and trust about the use of public funds and the sources of wealth for those who hold positions of trust. Freedom of Information (FOI) and disclosure legislation are often closely linked16, with the disclosure legislation being referred to as ‘pro-active’ (ie that information should be disclosed without request) and FOI as re-active (ie that information can be accessed in any case).

The Indian

legislation17 defines 18 categories of information that should be made available without any need for a request. Mexico has both a similar requirement and an expectation that data that has been previously requested under FOI should be made available on a regular basis in the future18.

2.1

Conflict of Interest Legislation

2.1.1 General Issues The OECD has given considerable attention to the need for asset disclosure as part of any integrated anti-corruption legislation19 and this framework is drawn on in the following section. At its core, the idea behind the disclosure legislation is it provides a tool to reduce the scope for conflicts of interests between an official’s (or government minister’s) private interests and their actual, public role. Disclosure

15

OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD. Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 17 Ministry of Law and Justice 2005. The Right to Information Act. New Delhi: Ministry of Law and Justice. 18 National Security Archive. 2010. The Mexico Freedom of Information Program [Online]. George Washington University. Available: http://www.gwu.edu/~nsarchiv/mexico/transparency.htm [Accessed 14 July 2012]. 19 OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD. 16

4

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

works as one way in which the consequences of failing to follow these expectations can be brought to public notice. The OECD argues that “defining an effective policy approach to dealing with conflict of interest is essential to the political, administrative and legal structure of a country’s public life20”. With the growth of private sector involvement (and increasingly multinational involvement) in the delivery of public services the scope for corruption and the need for both legislation and guidelines has grown. Quite often, it is ‘conflict of interest’ problems that sit at the core of corruption and that end up being exposed by effective FOI and Disclosure legislation. Seeking to prevent it in the first case can thus be cost effective and lead to long term trust in the individuals responsible for administering the state. A simple definition of conflict of interest is: “A conflict between the public duty and private interests of public officials, in which public officials have private-capacity interests which could improperly influence the performance of their official duties and responsibilities21” New Zealand law draws a distinction between the requirements for ministers as opposed to public servants as: 



20 21

5

For public servants: “Conflicts of interest are defined as, … any financial or other interest or undertaking that could directly or indirectly compromise the performance of their duties, or the standing of their department in its relationships with the public, clients, or Ministers. This would include any situation where actions taken in an official capacity could be seen to influence or be influenced by an individual’s private interests (e.g. company directorships, shareholdings, offers of outside employment). … A potential area of conflict exists for public servants who may have to deal directly with members of Parliament who have approached the department in a private capacity.” For ministers: “Conflicts of interest can arise because of the influence and power they wield – both in the individual performance of their portfolio responsibilities and as members of Cabinet. Ministers must conduct themselves at all times in the knowledge that their role is a public one; appearances and propriety can be as

Ibid., p.13 Ibid. p. 14

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

important as actual conflict of interest in establishing what is acceptable behaviour. A conflict of interest may be pecuniary (that is, arising from the Minister’s direct financial interests) or nonpecuniary (concerning, for example, a member of the Minister’s family) that may be either direct or indirect22” In this context, it should be stressed that private interests are not purely (or directly) financial.

They can involve allocation of contracts to relatives or to

particular social, political or ethnic groups. It can also involve consideration of the actions of an official or politician after they leave office. In this case, they may have made decisions in office with the goal of securing a lucrative post after their retirement but not for immediate financial gain. Section 2.1.2 covers these issues in detail with discussion both of good practice and relevant legal frameworks from other countries. It is divided into:   

Defining conflicts of interest Transparency and scrutiny Sanctions and Monitoring

2.1.2 Detailed Issues

2.1.2.1

Definition of Conflict of Interest

Three key principles exist in terms of developing the short definition presented above: 1. “Public officials should avoid private-capacity action which could derive an improper advantage from “inside information” obtained in the course of official duties, where the information is not generally available to the public, and are required not to misuse their position and government resources for private gain. 2. Public officials should not seek or accept any form of improper benefit in expectation of influencing the performance or nonperformance of official duties or functions. 3. Public officials are expected not to take improper advantage of a public office or official position which they held previously, including

22

6

Ibid., p. 54

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

privileged information obtained in that position, especially when seeking employment or appointment after leaving public office23” The following areas have been identified as areas where there is a particular risk of conflict of interest problems24: 1. “Additional employment – Define the circumstances, including the required authorisation procedures, under which public officials may engage in ancillary (“outside”) employment while retaining their official position. 2. “Inside” information – Make sure that information collected or held by public organisations which is not in the public domain, or information obtained in confidence in the course of official functions, is understood to be privileged, and is effectively protected from improper use or disclosure. 3. Contracts – Consider the circumstances in which the preparation, negotiation, management, or enforcement of a contract involving the public organisation could be compromised by a conflict of interest on the part of a public official within the public organisation. 4. Gifts and other forms of benefit – Consider whether the organisation’s current policy is adequate in recognising conflicts of interest arising from traditional and new forms of gifts or benefits. 5. Family and community expectations – Consider whether the organisation’s current policy is adequate in recognising conflicts of interest arising from expectations placed on public officials by their family and community, especially in a multicultural context. 6. “Outside” appointments – Define the circumstances, including the required authorisation procedures, under which a public official may undertake an appointment on the board or controlling body of, for example, a community group, an NGO, a professional or political organisation, another government entity, a government-owned corporation, or a commercial organisation which is involved in a contractual, regulatory, partnership, or sponsorship arrangement with their employing organisation. 7. Activity after leaving public office – Define the circumstances, including the required authorisation procedures, under which a public official who is about to leave public office may negotiate an appointment or employment or other activity, where there is potential for a conflict of interest involving the organisation25.” Seeking to ensure that public officials are exclusively employed by the public sector is important. In Germany a defined list of Ministers are prevented from: 23

Ibid., p. 26 Ibid. 25 Ibid., p. 33 24

7

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

    

Occupying another salaried office. Practising another profession or commercial occupation. Acting as a paid arbitrator or undertaking a consultant activity outside the courts. Holding an honorary public position, without government permission. In general the law also prohibits sitting on boards or supervisory boards of companies with profit-making aims, however the Federal Parliament Bundestag (for federal Ministers) and/or the Federal Government (for Parliamentary Secretaries of State) can grant specific permission as an exception in individual cases26”

In this respect Turkish law27 defines a public official as: “any person who performs a public activity through appointment or selection on an unlimited, permanent or temporary basis. This general definition of public official is extended to the following persons are also considered public officials: Officials of the (i) institutions of professions which are considered as public entities, such as chambers of commerce and industry or the union of bar associations; (ii) companies to which public entities are shareholders; (iii) foundations founded by public entities; (iv) associations working for the benefit of the public; (vi) cooperative companies; and (v) joint stock companies whose shares are quoted in stock exchanges” Portuguese law defines a wide range of public officials, as:    

Public office holders and senior public office holders in supreme authorities, such as the Head of State and ministers. Political post holders, such as parliamentarians. Chairmen, vice-chairmen, members of the management of public institutions. Director-general and deputy directors-generals in the public administration;

who are in turn, disqualified from:

26

Ibid., p.44 Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 27

8

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

 

Any other professional activities, whether remunerated or not. Involvement in governing bodies of any profit-making corporate bodies or remunerated participation in other corporate bodies28.

One concept, often found in legislation is the idea of incompatibility29. These are combinations of roles and jobs that are deemed inadmissible in any circumstances. Some legislative systems take an indicative approach, prohibiting only a few acts or combinations specifically. Others such as the former Soviet bloc countries in Eastern Europe have adopted far more explicit regulations. In Poland, for example, all forms of participation in political parties and functions in trade unions are prohibited for civil servants. Furthermore, employees of state offices cannot perform functions in management and supervisory boards and they are also prohibited from owning more than 10% of shares in any given commercial company. Similarly, the Czech Republic prohibits membership of political parties for employees of intelligence services, policemen, custom officers, prison guardians and firemen.

Also, a range of local government officials is banned from

membership of political parties and Hungary prohibits civil servants from holding office in a political party. The alternative to outright prohibition is what some describe as the Scandinavian model30. This specifies very few banned combinations – such as civil servants standing for parliamentary elections (they must resign before doing so). Instead the basic approach is that the definition of incompatible combinations is determined for each individual case on the basis of legal and ethical principles. Here the difference is mostly related to the overall culture and the extent that conflicts of interest are perceived to be a real problem for a particular state. The East European legislation may appear too restrictive but is set against a fear of abuse of public positions for personal gain or on behalf of ethnic or other client groups.

The Scandinavian model is set against a background of a relatively

homogeneous society with a long tradition of open and free expression.

28

OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD.p 44 Ibid. 30 Ibid. 29

9

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Another key issue in terms of preventing abuse surrounds accepting gifts and holding positions in private companies. The Japanese National Public Service Law prohibits a wide range of financial activities and positions, including31:   



Concurrently holding an executive position in a profit-making enterprise. Accepting a position in a profit-making enterprise that is in close connection with an agency of the State. Holding a position in which a public servant is able to participate in the management of a private sector enterprise, because the public official holds stock in the enterprise, or because other relationships that are deemed to be inappropriate with respect to the performance of official duties. Concurrently holding an advisory position in any undertaking other than a profit-making enterprise, or engaging in any other undertaking or carrying on a business, and receiving remuneration without the permission of the Prime Minister and the head of the official’s employing government agency.

In addition, the National Public Service Ethics Law and the National Public Service Ethics Code introduced further specific prohibitions in April 2000, such as:   

Receiving a gift of money, loan, rent, goods or services from an interested party. Accepting the hospitality of an interested party. Playing golf or travelling with an interested party.

In Canada, public office holders are prohibited from a wide range of activities and positions, including practising a profession, the active management or operation of a business or commercial activity, a directorship or office in a financial or commercial corporation, an office in a union or professional association, or a position as a paid consultant. Public office holders must resign from such positions, and make a public declaration of their resignation. Another prohibition to note is in Austria where officials of the Austrian Court of Auditors are not allowed to be a member of the management of a private company which could be audited by the Court of Auditors.

31

10

Ibid., p. 68

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

2.1.2.2

Transparency and Scrutiny

The goals of transparency and scrutiny are often related to FOI legislation and thus there are overlaps in how different states address the problem. The goal is to reduce the scope for real (or suspected) conflict of interests to ensure that officials are believed to act impartially. This means not just strict adherence to the relevant legal principles but also fostering a culture that values disinterested public administration. Ideally there are four stages to creating a full record of potential conflicts of interests, as: 1. Initial disclosure on appointment or taking up a new role; 2. In-service regular disclosure 3. Completeness of disclosure (and the emphasis is on the individual to prove their disclosure is complete) 4. Completeness of record keeping which is kept up to date with the individual’s responsibility to ensure this remains the case. The Irish approach is to require annual written statements from the following office holders:      

Members of the Oireachtas (Parliament). Office holders, such as the Taoiseach (Prime Minister), ministers, Chair and Deputy Chair of both the Lower House and the Upper House. Senior special advisers. Senior public and civil servants in designated positions. Designated directors of state bodies. Senior executives holding designated positions in state bodies32.

The Irish system makes a clear distinction between the most senior public positions, accountable to the public, and lower public positions that are generally administrative functions. A variety of disclosure options are used and the annual statements of Parliamentarians and of “office holders” such as the Prime Minister and ministers are entered in a register and published; those of the senior special advisers are laid before the Houses of Oireachtas and also given to the Public Offices Commission. The annual statements made by public and civil servants, 32

11

Ibid., p. 71

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

directors and executives are available to the Public Offices Commission. These annual statements must include those interests of a spouse or child that could materially influence them in the performance of their public duties, however, the personal interests of a spouse or child are kept confidential. The Scottish Parliament has taken a similar approach and requires all its members to declare33:       

Remuneration – being employed or self-employed, being the holder of an office or partner in a firm, etc. and related undertakings. Election expenses and donations. Sponsorship – receiving any financial or material support on a continuing basis to assist MSPs as a member. Gifts – receiving a gift of heritable or moveable property or a gift of a benefit in kind with the value over GBP 250 Certain overseas visits. Heritable property not used as residential home if its market value is greater than GBP 25,000 or the annual income from it is greater than GBP 4,000. Interest in shares that are greater than 1% of the issued share capital or its value is greater than GBP 25,000

One emerging problem relates to the activity of lobbyists and the actions of ministers and officials. In Canada, the Lobbyists Code of Conduct presents a set of core principles and standards while the Lobbyist Registration Act requires the public registration of lobbyist. This registration system was introduced in 1997. A bill was introduced in October 2002 to improve the Lobbyist Registration Act by:   

Providing a clearer definition of lobbying. Strengthening the enforcement provisions of the Lobbyist Registration Act. Simplifying registration and strengthening de-registration requirement, with a single filing approach for registration for corporations and non-profit organisations.

In addition to issues arising at the public-private sector interface, conflict-ofinterest issues occur at the political-administrative interface. In Norway, for example, has set restrictions that cover: 33

12

Ibid. pp 73-4

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

 

2.1.2.3

Those returning to civil service after a political appointment. Certain categories of former public officials (especially key personnel with knowledge of sensitive or strategic matters) who take up employment in the private sector.

Sanctions and Monitoring

An important element to enforcing conflict of interest legislation is to set out the sanctions and to create an appropriate set of controls. Sanctions will vary according to the seriousness of the issue and in the case of corruption, will also be specified under the appropriate legislation. However, even if the matter is treated as an administrative or managerial issue it is important that this is clear in the legislation as well as the range of penalties to be applied. Although the onus is on personal responsibility, there is a need for both internal controls (and audit) as well as means to handle complaints.

Any internal audit body must be properly

independent. In this respect, the Turkish Law on the Declaration of Interest and against Corruption is informative34.

This law created an Ethical Board that would

investigate complaints against senior public officials and ministers.

Each

Government department was required to set up its own board to handle complaints against junior officials,with the right to demand access to documents and interview witnesses. Any evidence of unethical conduct is to be published in the ‘Official Journal’ even if no formal criminal investigation is deemed necessary. Different countries vary to the extent they rely on a legal framework as opposed to administrative codes of conduct. However, Portugal and many of the ex-Soviet states have adopted a legal framework35 principally due to the seriousness of conflicts of interest in undermining the impression of impartial public administration. The range of sanctions adopted again varies36. In Portugal this includes: 34

Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 35 OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD. 36 Ibid. p. 76

13

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

    

Loss of mandate for political and senior public office holders, advisors or technical consultants. Immediate cessation of office and return of all sums which have been received for ministerial advisors. Three-year suspension of senior political duties and senior public duties for senior civil servants. Loss of office in case of managerial staff. Fine and inactivity or suspension for civil servants and contractual staff.

Similarly in Canada, at the federal level the measures and personal consequences are different for public office holders and public servants: 



For public office holders, the Office of the Ethics Counsellor provides advice along with education about ethical conduct, in order to prevent conflicts and help to resolve ethical dilemmas. In case of complaints regarding alleged breaches to the Code, the Ethics Counsellor will inquire and determine whether a breach actually occurred and make recommendations. Breaches of the Criminal Code can lead to investigation and criminal prosecution. For public servants, disciplinary actions may include dismissal where the Conflict of Interest and Post-Employment Code for the Public Service has been seriously breached. In addition, criminal prosecution is possible in the case of a breach of the Criminal Code

In France the range of sanctions involves:    

Warning. Striking off from the promotion list, reduction in rank, temporary suspension from duty for a maximum of 15 days, transfer of duty. Demotion, suspension from work from 3 months to 2 years. Dismissal

2.1.3 The Polish Example This section draws together all these various strands with a detailed review of the process in Poland. This was chosen as it was a regime in transition between forms of governance and was seeking to impose a rules based culture on a system

14

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

previously dominated by the arbitrary use of official power. The material is drawn from a detailed annex to the OECD guidelines37.

2.1.3.1

General Principles

Within Poland, the law rather than administrative guidance has been adopted as the main approach. Ensuring the impartiality of civil servants was seen to be critical and the laws cover the means for identifying, preventing and avoiding conflict of interests in the public service in general, and for public officials working in public procurement and tax offices specifically. The policy framework reflects a general distinction between genuine and perceived conflict of interest, as follows: 



Genuine conflict-of-interest situations are defined by the law as including, for example, situations in which an official has a relationship with a party in a legal case such that the result of the case could have an effect on his/ her rights and interests; or the party is related to the public official (for example as the official’s spouse or relative). Perceived conflict of interest is considered to occur when there is a probability of circumstances arising which could create a doubt about the neutrality of the employee’s action. The core principles of the Polish policy framework combines clear standards

for identifying conflict-of-interest situations with directions for managing such conflicts in the public sector – by disclosure, avoidance, or prevention. The core principles include:      

37

15

Political neutrality. Equal treatment of participants in administrative proceedings. Openness. Management control. Statutory limitation (for instance on business activity of public servants and public office holders). Prevention (for instance by increased emphasis on preventive actions, including training and communication, control mechanisms and disclosures.

Ibid.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Based on these principles, the conflict-of-interest policy is elaborated in detailed rules in several documents, although the main source is the law including the following legal documents:       

2.1.3.2

Administrative Procedures Code. Civil Service Act. Public Procurement Act. Act on Limitation on Conducting Business Activity by Persons Performing Public Functions. Public Prosecutors Act. System of General Courts Act. Tax Chamber and Office Guidelines.

Specific policies

In order to ensure openness, holders of state managerial position are obliged to submit, at specified intervals, asset-disclosure statements. A register is kept of special-occasion presents and gifts received by State managers and, prior to appointment, they are also obliged to submit a declaration concerning their previous business activities. An appointed commission has been created to provide advice as to whether a specific business activity could cause suspicions of partiality or self-interest. The Polish conflict-of-interest policy framework also includes specific measures for other classes of official, in addition to the general provisions contained by the Administrative Procedures Code for all public officials and the Civil Service Act for civil servants. The following public office holders are required to disclose their assets in a formal statement:      

Ministers. Staff in a Ministerial cabinet. Senior public servants. Officials in charge of contract management. Judges. Prosecutors.

The conflict-of-interest policy has also more specific rules for exclusion from decision-making and other proceedings for the following classes of public official:

16

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

      

2.1.3.3

Senior public servants. Officials in charge of contract management. Procurement officials. Customs officers. Tax officials. Judges Prosecutors.

Preventing Conflicts of Interest

The relevant laws set out the basic standards for civil servants (the Civil Service Act) and state officials (the Employees of State Offices Act) including a requirement to abide by the Constitution, to protect both the interests of the state and of human and civil rights. In addition, civil servants are required to perform their duties in an impartial, reliable, efficient, prompt and conscientious manner. In addition to these principles, there are specific regulations and for example, civil servants are prohibited from the following activities:           

Creation of and participation in political parties. Holding office in trade unions. Holding office in local self-government. Submitting to influence by political pressure groups. Accepting presents and other personal benefits for participation in lectures and conferences related to their official position. Performing functions in the management, supervision, or audit of profit based companies. Undertaking secondary employment without the consent of their employing organisation. Undertaking supervisor/subordinate working relationships with persons of family/personal connection at the workplace. Disclosing confidential information. Performing commissioned assignments for outside parties. Exploiting their position for private purposes.

If the official works in public procurement then there are further rules to prevent an official from acting on behalf of an ordering party or from performing other actions relating to procurement proceedings involving persons who are:

17

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

  

2.1.3.4

In a close personal relationship, for instance, by marriage or kinship, or legal relationship. In an employment or commission relationship, or members of the governing body of an entity which is bidding on a tender. In de jure or de facto relationship with the supplier or contractor in such a way that it could give rise to justified doubts concerning their impartiality.

Disclosure of private interests

The issues in relations to disclosure are discussed again in section 2.2 but are considered to be a key step in identifying and avoiding conflicts of interest. Consequently, Poland introduced a rigorous system which requires Polish civil servants to disclose prescribed assets, liabilities and debts which are considered as holding a potential for conflicts of interest. Members of the civil service are obliged to disclose their private interests, and this includes, before, during and after their appointment as38: 



38

18

Before employment: prior to taking up a position, members of the civil service are obliged to submit an asset declaration statement in which they are required to list their real estate ownership (number of houses, apartments) as well as other properties and pecuniary interests. They should also indicate whether they are a member of a management board, supervisory board or audit commission of a company under commercial law, or whether they sit on an executive board of foundations that conduct business activity. They should also provide information on their own business activity and or their involvement in business activity by others. During employment: civil servants are obliged to submit an annual asset declaration statement by 31 March each year. The declaration includes information on real estate ownership (number of houses, apartments), other properties and pecuniary interests. The declaration should also indicate whether the civil servant is a member of the management board, supervisory board or audit commission of a company under commercial law, or whether they sit on the executive board of a foundation that conducts business activity, or if they conduct business activity on their own or together with other persons. Persons who hold state managerial positions are obliged to report all presents and benefits they receive and debts they incur to the National Registry of Benefits.

Ibid.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan



Post public employment: on the day they leave their position, civil servants are obliged to submit a final asset disclosure statement in which they should list their real estate ownership (number of houses, apartments), other properties and pecuniary interests, membership of the management board, supervisory board or audit commission of a company under commercial law, and whether they sit on a executive board of a foundation that conducts business activity, or they conduct business activity on their own or together with other persons. Up to one year following the end of their tenure, civil servants cannot be employed by, or perform other activities for, a business entity if they took part making official decisions in individual cases concerning the business. Persons with state managerial positions are obliged to obtain the consent of a special commission responsible to the Prime Minister in order to undertake employment in an entity that was supervised by the former state official.

This legislation has continued to develop39. This has included demanding even more declaration of the extent of property ownership and the extension of the register from central state employees to cover local government. Over time, the required personal information includes tax returns that are matched with asset declarations, to help identify any discrepancies that may indicate illegal payments. One major area where the legislation has been updated has been to capture the interaction between state officials, politicians and lobbyists. The relevant Polish legislation is reprinted as Annex 1 to this paper40.

2.1.3.5

Compliance and Penalties

Non-compliance with these regulations can lead to a range of disciplinary proceedings and penalties depending the seriousness of the violation41: 

In general, disciplinary proceedings and penalties for breaching the obligations of a civil servant are specified in the Civil Service Act. As an ultimate sanction, a legally valid ruling to discipline a civil servant may result in dismissal from the civil service; such dismissal prevents

39

Chari, R., Hogan, J. & Murphy, G. 2010. Regulating Lobbying: A Global Comparison, Manchester, Manchester University Press. 40 OECD 2007. Legislation on Lobbying in Europe. Geneva: OECD. 41 OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD.

19

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

 



2.1.3.6

reemployment of the person in the civil service for a period of 5 years. Disciplinary liability based on separate provisions also applies to Police and Border Guard officers. In more specific matters, a civil servant is subject to disciplinary liability, including termination of the employment relationship without notice at the fault of the employee in the event of: o Failure to submit an asset disclosure statement. o Failure to disclose asset information consistent with the true state of holdings. o Conducting, contrary to prohibitions, business activity or participating in companies under commercial law. o Submission of information concerning conflict of interests which is inconsistent with the truth is subject to criminal liability. o Violation of the prohibitions concerning the limitations on conducting business activity by persons performing public functions constitutes a service offence which is subject to disciplinary liability. It may also constitute a ground for terminating the employment relationship without notice at the fault of the employee. In public procurement, in addition to criminal liability, the public procurement proceeding is invalidated or the signed contract resulted by the process is annulled.

Tendering and Public-Private Partnerships

The problem of inappropriate relations influencing tendering and the interaction between public officials and the business and non-profit sectors, are major concerns. This has seen the law strengthened and the Minister of the Treasury has issued two resolutions to limit involvement by public officials in companies and tenders. The first resolution restricts the participation of representatives of the State Treasury on supervisory boards of companies, state enterprises, agencies and foundations. The second resolution reviewed the rules for those responsible for the oversight of such contracts and included:   

20

Tenders and public procurement – or the avoidance of tender procedures. The issuance of permits and concessions. Privatisation of state enterprises.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

 

2.2

The selection of consulting firms for the performance of preprivatisation analyses. The granting of consent to hire more public employees and activities financed by public funds.

Disclosure Legislation Disclosure legislation is the second element to any approach to ensuring

transparency. It is one of the tools that can be used to prevent corruption by making it harder for officials and ministers to hide the assets gained from corruption. In general, disclosure legislation has two separate elements. One part applies to individuals (usually public officials) and the second to corporations. Many legal systems (both national and transnational such as the EU) are adopting the latter as a means to try to check the payment of bribes and other corrupt practices by Western multinationals. Disclosure legislation is an important part of the package of laws needed for transparency but is most effectively studied in the context of either the information needed to reassure there are no conflict of interest problems42 (ie section 2.1) or, in the context of FOI, that states are pro-active in releasing information43 (ie section 2.3).

2.2.1 Personal Disclosure

2.2.1.1

Overview

As discussed in terms of conflict of interest legislation, one important element is that of the requirement for public officials to disclose their assets. This is primarily designed to give public reassurance that official decisions and actions are not driven by the expectation of personal gain.

However, robust personal

disclosure legislation also has a role in the prevention of corruption44.

In

particular, disclosure not just of income but assets will reveal when an individual is 42

Ibid. ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 44 Zaman, I., Das, S. K. & Islam, S. L. 2011. Bangladesh. Transparency International Bangladesh. 43

21

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

enjoying a lifestyle beyond that which is feasible from their notional salary45. Legislation requiring some form of disclosure by politicians has become widespread46 (as discussed above) but even so many legislative systems do not contain expectations of public disclosure47. Even when disclosure is required the information is rarely made public. In general, asset disclosure covers two related aspects: financial and business interests48. Financial disclosure requirements focus on assets such as real estate, vehicles, art, jewelry, and financial investments. Disclosing the value of such assets and liabilities along with the amount of a public official’s income makes it possible to detect corruption.

Business interest disclosure covers any interests,

commitments, and business connections that may compromise public officials’ impartiality in their policy and public management decisions. These may include stock holdings and income sources as well as positions held outside public office and gifts received. Requiring information about such interests, as well as sources of assets and liabilities, can help in detecting potential conflicts of interest and, require officials to disclose management positions in companies or organizations, advisory positions, and even unpaid positions. Asset disclosure has been recognized in many international conventions as an important tool for combating corruption. For example, article 8 of the United Nations Convention against Corruption49 suggests that countries should require public officials to make disclosures about, among other things, “their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials”. Similar requirements can be found in the Inter-American Convention

45

OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 46 Djankov, S., Porta, R. L., Florencio Lopez-de-Silanes & Shleifer, A. 2010. Disclosure by Politicians. American Economic Journal: Applied Economics, 2, 179-209. 47 Ibid. 48 Rossi, I., Pop, L., Clementucci, F. & Sawaqed, L. 2012. Using Asset Disclosure for Identifying Politically Exposed Persons. Washington: International Bank for Reconstruction and Development. 49 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN.

22

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

against Corruption50 and the African Union Convention on Preventing and Combating Corruption51. Korea, for example, has built public information disclosure into its governmental systems at local as well as national levels52. Turkish legislation sets out the public officials who are required to declare their assets on a regular basis include officials who are nominated through the selections; the notaries; certain higher officials of the Turkish Air Institute and Turkish Red Crescent; officials of the public entities such as ministries, municipalities, economic state enterprises, etc.; presidents of political parties; managers of foundations, cooperatives and unions; individuals who publish newspapers as well as the higher employees of newspapers. The basic idea behind asset declaration is to monitor any increase in the assets of a public official or other person who performs activities that are closely connected to the public interest. Individuals who are required to declare assets must also declare the assets of their wives and children. Within the scope of such requirement, any asset (such as money, stock shares, gold, rights, receivables, etc.) the value of which exceeds the amount of their salary for 5 months is required to be declared. The individual must also explain how the assets were acquired53.

2.2.1.2

Draft Model Legislation

The Organisation of American States (OAS)54 has produced a draft model law in this respect and it is appended verbatim in annex 255 as it covers the key issues raised above. It is both grounded in a particular form of jurisprudence and

50

Department of Legal Cooperation. 2011a. Anti-Corruption Portal of the Americas [Online]. Organization of American States. Available: http://www.oas.org/juridico/english/fightcur.html [Accessed 24 July 2012]. 51 African Union 2003. African Union Convention on Preventing and Combating Corruption. Maputo. 52 Lee, M. J. & Moon, M. J. 2011. Trends and Patterns of Public Information Disclosure in Korean Government. Freedominfo.org. 53 Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 54 Department of Legal Cooperation. 2011a. Anti-Corruption Portal of the Americas [Online]. Organization of American States. Available: http://www.oas.org/juridico/english/fightcur.html [Accessed 24 July 2012]. 55 Department of Legal Cooperation 2011c. Text of the Draft Model Law on the Declaration of Interests, Income, Assets and Liabilities of Persons performing Public Functions. Organization of American States.

23

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

devised to allow individual member states to craft legislation compliant with the overall regional commitments. The main issues are: 1. Careful definition of the scope such as who is covered (public officials, politicians) and in particular who is liable to full or partial disclosure; 2. Careful definition of what needs to reported, in particular gifts in kind, property and assets as well as income; 3. Definition of who is in charge of the register and who is responsible for investigation; 4. How will the declaration be verified; 5. Set out the penalties, in particular what types of failure to comply will be liable to civil penalty and when criminal penalties will be applied; 6. Consideration needs to be given to links to non-state bodies and the need to declare meetings with lobbyists; 7. Most legislation now requires continued declaration after leaving public service so as to inform the public if a minister or official goes on to work for a private company they had dealings with in office (to avoid the problem of effectively the promise of reward being deferred from the period in office to afterwards).

2.2.2 Corporate Disclosure The law about corporate disclosure is closely related to that about personal disclosure. The goal of the latter is to expose where a public official is being unduly influenced or taking bribes56. In turn requirements of corporate disclosure are focussed on identifying instances of corruption by companies, usually those that operate as multinationals. The EU has recently imposed new demands on any firm listed on any EU based stock market to report by country and by project on the following57: 

production entitlements

56

Djankov, S., Porta, R. L., Florencio Lopez-de-Silanes & Shleifer, A. 2010. Disclosure by Politicians. American Economic Journal: Applied Economics, 2, 179-209, Rossi, I., Pop, L., Clementucci, F. & Sawaqed, L. 2012. Using Asset Disclosure for Identifying Politically Exposed Persons. Washington: International Bank for Reconstruction and Development. 57 European Commission. 2011. Proposal for Directive on transparency requirements for listed companies and proposals on country by country reporting [Online]. Brussels: Europa Press Room. Available: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/734&format=HTML&aged=0&la nguage=EN&guiLanguage=en [Accessed 11 July 2012].

24

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

     

taxes on profits royalties dividends signature, discovery and production bonuses licence fees, rental fees, entry fees and other considerations for licences and/or concessions other direct benefits to the government concerned

The US equivalent is the Sarbanes-Oxley Act58 which deals with disclosure requirements and sets out the penalties for firms found guilty of bribery both in the US and anywhere else in the world. The logic is that this information makes it easier to observe patterns of expenditure within each country so as to track unusual expenditure that may hint at the existence of bribery and corruption. At a national level similar legislation is useful as another tool to make it harder for individuals and companies to engage in corrupt practices59. A key element to such legislation is the requirement for company reporting to cover a range of activities, to include declarations about corruption and to reflect on the wider impact of the company’s performance. An example of this is the ‘King 3’ legislation adopted by South Africa60. However, on a global scale, corporate disclosure legislation has lagged behind that developed for private individuals. Given the growth of private delivery of public services, this leaves a serious gap in the overall approach available to any state that wishes to reduce corruption61.

2.3

Freedom of Information (FOI) Legislation FOI forms the third leg of disclosure legislation. In effect it should lead to

an improvement in the amount of information routinely provided (ie, addresses 58

US Senate. 2002. Sarbanes-Oxley Act [Online]. Washington: US Government Printing Office. Available: http://www.gpo.gov/fdsys/pkg/PLAW-107publ204/content-detail.html [Accessed 24 July 2012]. 59 Sajjad, A. 2010. Sarbanes Oxley and Pakistan: way forward? [Online]. Karachi: ACCA. Available: http://www2.accaglobal.com/databases/pressandpolicy/pakistan/sox [Accessed 24 June 2012]. 60 SAICA. 2011. An integrated report is a new requirement for listed companies [Online]. Johannesburg: South African Insitute of Chartered Accountants. Available: https://www.saica.co.za/tabid/695/itemid/2344/language/en-ZA/An-integrated-report-is-a-newrequirement-for-list.aspx [Accessed 24 July 2012]. 61 Hanna, P. R., Bishop, S., Nadel, S., Scheffler, G. & Durlacher, K. 2011a. The effectiveness of anticorruption policy What has worked, what hasn’t, and what we don’t know. In: Eppi-Centre, S. S. R. U. (ed.). London: Institute of Education.

25

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

aspects of the disclosure problem) and creates the means by which individuals can access further information (ie, disclosure on request). As such, it leads to more information being readily available and the ability to access information that has been withheld from the public.

In combination, it increases the likelihood of

corruption being identified62.

2.3.1 General Issues The wider advice for FOI legislation is to ensure it is drawn broadly across three basic categories of the bodies that are covered, who has the right to access and the categories of information63. In terms of the type of organisation captured by the legislation, several broad criteria should be applied: 1. That all Public Bodies should be covered. If there are exemptions in terms of state security it is important that State Security Agencies of the State do not have a blanket exemption; 2. Produce and update a complete list of state agencies and publicly funded bodies as the structure of government changes. The evidence from Ireland is this works better than a non-specific listing64; 3. Related to this, ensure all bodies that are state funded, or deliver services for the state are included. With the growth of neo-liberal privatisation this is becoming an increasingly common gap, even in OECD countries; and 4. Ideally draw in private sector firms as is done in South Africa65 and, partially, Denmark66. The second set of issues in terms of scope is to set out who is entitled to make a request for access to information and on what terms.

There are two

related themes in this respect. One is whether all people resident in a particular 62

Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 63 Ibid. 64 Department of Public Expenditure and Reform. 2012. Freedom Of Information Website [Online]. Dublin: FOI Central Policy Unit. Available: http://foi.gov.ie/ [Accessed 13 July 2012]. 65 Republic of South Africa. 1996. Section 32(1)(b) of the Constitution of the Republic of South Africa [Online]. Available: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan005172.pdf [Accessed 13 July 2012]. 66 Ministry of Justice. 1987. The Danish Access to Public Administration Files Act [Online]. Available: http://aabenhedskomite.homepage.dk/07love/offentlighedsloven_paa_engelsk.htm [Accessed 13 July 2012].

26

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

state should be entitled to request information or just those who hold the appropriate nationality. The second is whether or not to adopt the Finnish model67 of allowing anonymous requests.

This has the advantages of preventing

discrimination on the basis of gender, ethnicity or religion (in those countries where a name is a strong indicator of such matters) and reducing the fear of consequences arising from a request. The final set of issues with FOI legislation involves consideration of what type of information is described as being accessible. Common concepts in this regard68 include only expecting states to release documentation as it actually exists (ie there is no expectation that a FOI request will be met by the state undertaking analysis of material, merely to release it). In some regimes69, oral information is included when it covers information that is transmitted between agencies and it is reasonable to have assumed it should have been recorded.

Increasingly

legislation is being interpreted to include e-mails sent from private accounts of ministers and public officials at work premises. Common exemptions include70:    

 

National Security Interests: Information where such disclosure would cause harm to the defence or national security of the country; Law Enforcement Interests: Information regarding crime prevention, investigation, and prosecution; Privacy Interests : Information where such disclosure would invade the privacy of a natural third party; Commercial and Confidentiality Interests: Information where disclosure constitutes an actionable breach of confidence, reveals a trade secret, or publicizes information obtained from another State or international organization where disclosure of such information would harm relations with such entity; Health and Public Safety Interest: Information where such disclosure would endanger the life, health, or safety of any individual; Policy Making and Operations of Public Bodies Interests: Information where such disclosure would harm the formulation of government policy, frustrate the success of a policy by premature disclosure, inhibit the free and frank

67

Ministry of Justice 1999. Decree on the Openness of Government Activities and on Good Practice in Information Management. Helsinki: Ministry of Justice. 68 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 69 Ministry of Justice. 1987. The Danish Access to Public Administration Files Act [Online]. Available: http://aabenhedskomite.homepage.dk/07love/offentlighedsloven_paa_engelsk.htm [Accessed 13 July 2012]. 70 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International.

27

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

exchange of views in the policy making process, or undermine testing of an auditing procedure used by the government. In general, good practice is to acknowledge these limits and to ensure they are well defined. The basic assumption should be of publication unless it is clear beyond doubt that one or the other exemptions is met (ie. a presumption towards publication). The 2002 Pakistan Freedom of Information Ordinance was criticized on the following grounds 71: “The Ordinance has a number of weaknesses, including an excessively broad regime of exceptions and a restrictive approach to the definition of “public record”. In addition, the Ordinance does not include a number of features that would substantially strengthen the public’s right to know, such as obligations on public bodies to maintain their records in good condition and to publish key categories of information, a system for promoting freedom information and educating civil servants, the granting of specific investigative powers to the Mohtasib and Federal Tax Ombudsman and a right of appeal to the courts72”. The balance of this section of the Ordinance works through the three attributes of FOI already discussed (defining who is covered, defining who can apply and defining what is meant by information). This includes discussion of the existing situation in Pakistan and examples of legislative text that are generally seen as meeting expectations.

2.3.2 Detailed Issues The current legislation in Mexico73 offers a useful summary of the breadth of the required scope. In addition, it explicitly links the Federal requirements to the

71

ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 72 Ibid., pp 1-2 73 National Security Archive. 2012. Resources on Mexican Constitutional Reform on Access to Information [Online]. George Washington University. Available: http://www.gwu.edu/~nsarchiv/mexico/article6.htm [Accessed 14 July 2012].

28

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

demands placed on the individual States and Districts that administer Mexico. The key precepts are: I. Any information in possession of any authority, entity, or federal, state, and municipal bodies, shall be made public, and will only be temporarily retained for reasons of public interest in the terms established in the law. A principle of maximum publicity will prevail in any interpretations of such right. II. Any information regarding private lives and personal data will be protected by the terms and exceptions determined by the law. III. Any individual, without having to acknowledge any interests or justify its use, will be granted free access to public information, and his or her personal data, and will furthermore have the right to the amendment of such information. IV. Expeditious mechanisms of access to public information will be established. These mechanisms will be validated by means of specialised bodies or organisations, and will be granted operational and decision-making autonomy. V. All involved individuals will have to keep their documents in updated administrational archives, and will have to publish, by means of available electronic media, all complete and updated information on their organisational indicators and the use of public resources. VI. The law will determine the ways in which involved individuals will make public every piece of information regarding public resources provided to either individuals or corporations. VII. Failure to comply with dispositions regarding the access to public information will be cause of legal sanctions.

2.3.2.1

Define what bodies are covered

The legislation adopted by Azerbaijan was drafted in co-operation with the Council of Europe (and followed its model law) as well as legislation prepared by other states in the region74.

This uses a wide definition for the concept of

information holder, as: “state bodies and municipalities; legal persons performing public functions, notably in the areas of education, health, culture and welfare – whether their activity is regulated by legal acts or they act 74

Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International.

29

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

on a contractual basis. The following are regarded as equivalent to information holders: legal entities with predominant positions in the commodity market, or holders of special/exclusive rights and natural monopolists – in connection with information on the quality and price of goods and services and their relative changes; noncommercial entities fully or partially owned by the State (or dependent on it in other ways, e.g. a public agency can be one of the founders), extra-budgetary funds, commercial associations owned or participated in by the State – in connection with information on property or funds allocated by the State Budget75”. In contrast, the legislation in Georgia is seen to be flawed due to it being limited to public agencies and includes only a very limited subset of the activities of the private sector76. Suggested means to widen this from a narrow definition of the public sector are to “include companies that make profits from the use of public goods, such as natural resources, cultural monuments, public spaces77”. In Pakistan, the existing legislation has been criticised as78: “failing to include bodies that are either owned or controlled by government or bodies which, while not controlled by government, carry out public functions. For the purposes of disclosure of information, the definition of ‘public body’ should focus on the type of service provided rather than on formal designations. Furthermore, the definition is limited to organs of the Federal Government, Parliament and courts, despite the fact that the Federal Government has the power under Pakistan’s Constitution to legislate for the provinces. Given the goal of freedom of information legislation to promote maximum access to information, the Ordinance should also apply to provincial public bodies.” The latter point is important as a criticism of the current anti-corruption legislation is that it is framed at the provincial level rather than as federal legislation79.

75

Ibid., pp 43-44 Tsagareishvili, N. 2011a. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 14 July 2012]. 77 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International., p. 71 78 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 79 Taj, A. 2012. Problem of corruption [Online]. Lahore: Dawn. [Accessed 24 June 2012]. 76

30

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

2.3.2.2

Define who can request information

In defining who can request information, it is also good practice to define how. Most legislation allows for verbal or written requests and the latter includes email, fax as well as conventional mail to be used. Many legal systems restrict FOI requests to citizens of the state. If this is done, it is important to ensure such a restriction is purely in terms of the individual, not related to any organisation they may work for or sources of funding. Restriction in terms of nationality excludes both permanent residents and refugees, both of whom make up an important part of the population of countries such as Pakistan80. The options of cost include81 charging no fee for a verbal enquiry or for the provision of existing information up to 10 pages. One issue in this respect is to ensure the legislation makes no charge if it proves to be necessary at a subsequent stage to correct an earlier incomplete or misleading answer (this places the emphasis on the state body when seeking to decline or provide a partial answer). Other legislation allows for costs to be charged once the expense reaches a certain threshold but these costs can only reflect the direct costs of provision. In general, legislation should avoid threatening applicants with fines it their request is dismissed as ‘frivolous or vexatious’ and such terms must be clearly defined within the body of the FOI legislation82. Most legislative systems stress the importance of an independent body that oversees the process and can intervene in the case of disputes83. This should set out the appeals process and to ensure the regulatory body has the powers and staff levels to act as an effective oversight within the system. In this context it is important that the legislation includes checks and balances by which a decision to

80

ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 81 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 82 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 83 Department of Public Expenditure and Reform. 2012. Freedom Of Information Website [Online]. Dublin: FOI Central Policy Unit. Available: http://foi.gov.ie/ [Accessed 13 July 2012].

31

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

withhold information can be challenged84.

Examples include adding a ‘public

interest’ element to offset any claims of damage to state or personal interests. It is also important that the legislation does not allow a blanket statement by Government officials that a particular record is classified and thus exempt. At the least such decisions must be made public and subject to challenge using public interest criteria.

2.3.2.3

Define what information is covered

Some systems of FOI distinguish between secret information85 (which is defined as such in the legal code) and confidential information. In theory, the former can never be disclosed under FOI, and while the latter can be it is often subject to other legislation such as child protection, banking secrecy and individual information protection legislation. On balance, the advice is not to allow the secret information category (especially if it is defined in different legislation) to be valid as it tends to limit the oversight and value of FOI as a check on corruption. Breadth is important in this respect and many draft FOI systems recommend: “The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances. This principle encapsulates the basic rationale underlying the very concept of freedom of information and ideally it should be provided for in the Constitution to make it clear that access to official information is a basic right. The overriding goal of legislation should be to implement maximum disclosure in practice86” A related issue is to ensure that in terms of FOI, the FOI legislation is dominant (in other words not restricted by other legislation). This has been noted 84

ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 85 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 86 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012].

32

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

as a problem with the current legislation in both Georgia87 and Pakistan88. Key issues in this respect are89: 



The law on freedom of information should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions. Where this is not possible, other legislation dealing with publicly-held information should be subject to the principles underlying the freedom of information legislation; and, The regime of exceptions provided for in the freedom of information law should be comprehensive and should not make it illegal for officials to divulge information which they are required to disclose under freedom of information law.

In terms of pro-active disclosure there is considerable variance.

Some

legislative systems are very prescriptive (and this leaves the problem that what is not included is excluded) and others indicative (with the problem of variances between state agencies). The broad principle in this regard is that90 the following should be included in pro-active disclosure: 

   

operational information about how the public body functions, including costs, objectives, audited accounts, standards, achievements and so on, particularly where the body provides direct services to the public; information on any requests, complaints or other direct actions which members of the public may take in relation to the public body; guidance on processes by which members of the public may provide input into major policy or legislative proposals; the types of information which the body holds and the form in which this information is held; and the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision.

87

Tsagareishvili, N. 2011b. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 17 March 2012]. 88 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. 89 Tsagareishvili, N. 2011a. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 14 July 2012]. 90 ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012].

33

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

To assist this, some legislative systems place a requirement on public bodies to draw up ‘document registers’ setting out the range of information they hold91, even if access is restricted due to the operation of personal information protection legislation. The solutions of India92 and Mexico93 in this regard are useful in this regard. The Indian legislation94 (para 4(1)b)) covers: (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;

91

Ministry of Justice 1999. Decree on the Openness of Government Activities and on Good Practice in Information Management. Helsinki: Ministry of Justice. 92 Ministry of Law and Justice 2005. The Right to Information Act. New Delhi: Ministry of Law and Justice. 93 National Security Archive. 2010. The Mexico Freedom of Information Program [Online]. George Washington University. Available: http://www.gwu.edu/~nsarchiv/mexico/transparency.htm [Accessed 14 July 2012]. 94 Ministry of Law and Justice 2005. The Right to Information Act. New Delhi: Ministry of Law and Justice.

34

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed; and thereafter update these publications every year; One final important issue in this respect is to define the speed of response. Examples from the Armenian legislation include95: “the answer to an verbal inquiry is given immediately after listening to the inquiry or within the shortest possible time frame. According to paragraph 7 of the same legal provision (Article 9 of the FOI law), the response to a written inquiry must be normally provided within 5 days, though it may be extended up to 30 days if more work is necessary to prepare the response. In case of extension the requester of information shall be notified about it within 5 days after the application submission, highlighting the reasons for delay and the final deadline when the information will be provided96” Similarly the current legislation for Georgia sets out97 that an agency is obligated to issue the public information immediately or no later than 10 working days, if responding to a request for public information requires:   

collecting and processing of information from its structural subdivision operating in another settlement point or other public agency; collecting and processing of separate and voluminous documents that are not interrelated; consultation with its structural subdivision operating in another settlement point or other public agency

95

Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International. 96 Ibid., p. 31 97 Tsagareishvili, N. 2011a. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 14 July 2012].

35

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

If the release of public information requires a 10-day term, a public agency must immediately inform the applicant. Whereas if a public agency refuses to release the information, this must be immediately communicated to the applicant. Further, in case of refusal to release public information, the applicant must be provided with information in writing on its rights and procedures for appeal the refusal within 3 days from rendering the decision.

36

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

3: Corruption The underlying reason for all the legislation around transparency and for the protection of whistleblowers is to create a framework around which corruption can be tackled. However, the core part of any such legislative package has to focus on the definition of, and penalties for, corruption98.

Pakistan’s core

legislation in this respect is still that derived from before independence99 and is in need of a major overhaul to bring it up to date. This section starts with a review of four case studies of countries that are in the process of addressing a culture of endemic corruption. From that a number of general principles are discussed and the final section looks at detailed aspects of legislation.

3.1

Case Studies The four cases (India100, Georgia101, Turkey102 and Vietnam103) have been

selected as each is seeking to create a framework to reduce corruption against a recent history where that has been an endemic problem.

3.1.1 India

3.1.1.1

Framework

Within India, a number of bodies have responsibility to investigate corruption, including104:

98

Taj, A. 2012. Problem of corruption [Online]. Lahore: Dawn. [Accessed 24 June 2012]. United Nations. 1947. The Prevention Of Corruption Act, 1947 [Online]. Available: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047878.pdf [Accessed 24 June 2012]. 100 Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations. 101 OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 102 Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 103 Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations. 104 Ibid. 99

37

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

      

The Central Vigilance Commission; The Central Bureau of Investigation (Anti-Corruption Division); The Anti-Corruption Bureau; The Adjudicating Authority and Directors under the Prevention of Money Laundering Act 2002 (the “PMLA”); The Reserve Bank of India (“RBI”); The Securities Exchange Board of India (“SEBI”); and The Serious Fraud Investigation Office.

Each of these bodies has a different role and focus. The Central Vigilance Commission was established in 1964, and is the co-ordinating body. The Central Vigilance Commission Act of 2003, contains provisions for inquiries into offences alleged to have been committed under the Prevention of Corruption Act, 1988 (“PCA”) by certain categories of public servants of the Central Government, statutory corporations and Government companies (ie, companies where 50% or more of the issued and paid up share capital is held by the Central Government). In addition it covers societies and local authorities owned or controlled by the Central Government. The Central Vigilance Commission currently also acts as the agency dealing with complaints from “whistleblowers” until such time as the Parliament passes a law on the subject. The Central Bureau of Investigation (“CBI”) was set up in 1941 by the Government of India. It is the central investigating police agency in India and investigates major crimes in the country having inter-state and international ramifications and collects criminal intelligence.

It covers Anti-Corruption,

Economic Crimes and Special Crimes. The Anti-Corruption Division of the CBI is responsible for collection of intelligence in respect of corruption and enquiries into complaints against Central Government employees or public servants working under the State Government entrusted to the CBI by the State Government. The state

(provincial)

Governments

have

also

established

Anti-Corruption

Bureaus/Vigilance commissions to investigate corruption in their respective states. The Adjudicating Authority and the Directors appointed under the PMLA investigate offences of money laundering.

The RBI has issued “Know Your

Customer” guidelines to be followed by banks and financial institutions. These statutory guidelines are intended to curb money laundering and terrorist financing. The SEBI is an autonomous body established under the Securities and Exchange

38

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Board of India Act 1992. The SEBI regulates the stock exchanges, stock brokers, share transfer agents, merchant banks, portfolio managers, other market intermediaries, collective investment schemes and primary issues. It prohibits fraudulent and unfair trade practices and monitors

substantial acquisition of

shares and takeovers. SEBI has powers to carry out routine inspections of market intermediaries to ensure compliance with prescribed standards. It also has investigative powers similar to that of a civil court, in terms of being able to summon persons and obtain information relevant to its enquiry. SEBI conducts investigations into market misconduct issues such as market manipulation and price rigging, public issue related manipulation and insider trading. The Serious Fraud Investigation Office is a relatively new organisation which has been operative since 1 October, 2003. This organisation was set up to address various stock market frauds, financial failures and the use of shadow companies to engage in fraud.

3.1.1.2

Legal Basis

One weakness for India is the lack of effective legislation to underpin the considerable effort that has been placed on investigation. At the moment, there are three key pieces of legislation105: 



The Indian Penal Code, 1860, defines “public servant” as a government employee, officers in the military, navy or air force; police, judges, officers of Court of Justice, and any local authority established by a central or state Act. Section 169 covers the actions of a public servant unlawfully buying or bidding for property. The public servant shall be punished with imprisonment of up to two years or with fine or both. If the property is purchased, it shall be confiscated. In turn, Section 409 covers criminal breach of trust by a public servant. The public servant shall be punished with life imprisonment or with imprisonment of up to 10 years and a fine. The Prevention of Corruption Act, 1988, extended the definition of “public servant” includes office bearers of cooperative societies

105

PRS Legislative Research. 2010. Corruption laws in India [Online]. Available: http://www.prsindia.org/administrator/uploads/general/1302844978_PRS%20Note%20on%20corruptio n%20laws.pdf [Accessed 24 July 2012].

39

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan





receiving financial aid from the government, employees of universities, Public Service Commission and banks. If a public servant takes gratification other than his legal remuneration in respect of an official act or to influence public servants is liable to minimum punishment of six months and maximum punishment of five years and fine. The Act also penalizes a public servant for taking gratification to influence the public by illegal means and for exercising his personal influence with a public servant. If a public servant accepts a valuable thing without paying for it or paying inadequately from a person with whom he is involved in a business transaction in his official capacity, he shall be penalized with minimum punishment of six months and maximum punishment of five years and fine. It is necessary to obtain prior sanction from the central or state government in order to prosecute a public servant. More recently The Prevention of Money Laundering Act, 2002 has been added and this states that an offence of money laundering has been committed if a person is a party to any process connected with the proceeds of crime and projects such proceeds as untainted property. “Proceeds of crime” means any property obtained by a person as a result of criminal activity related to certain offences listed in the schedule to the Act. A person can be charged with the offence of money laundering only if he has been charged with committing a scheduled offence. The penalty for committing the offence of money laundering is rigorous imprisonment for three to seven years and a fine. If a person is also convicted of an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of imprisonment can extend up to 10 years.

These laws are under revision but are currently stuck in Parliament.

In

particular the proposed new legislation would bring the private sector into the scope of the corruption laws as well as companies and groups based overseas106.

3.1.2 Georgia The purpose here is not to review Georgia’s progress in terms of reducing corruption. Such evaluations are complex and while some bodies such as the OECD107 are broadly supportive of progress, others remain concerned in particular 106

IBNLive. 2012a. Govt mulling private sector corruption law [Online]. Available: http://ibnlive.in.com/news/govt-mulling-private-sector-corruption-law/261894-3.html [Accessed 24 June 2012]. 107 OECD 2011. Progress Report: Georgia.

40

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

about the implementation108 of the legislation and the political use being made of anti-corruption claims. The criticism levied is less about the success of the measure and more about the level of authoritarianism being implemented

109

. In effect, the

new regime is using anti-corruption to shore up its power as resolutely as the old Shevardnadze regime used corruption to the same ends110.

3.1.2.1

Framework

The framework that Georgia has established is co-ordinated by the Anti-Corruption Council111 which oversees the work of the main agencies. These include the National Security Council and the State Ministry of Reform. The latter oversees the implementation of the anti-corruption strategy but neither are independent nor are they dedicated solely to anti-corruption work. The focus on public procurement was improved with the creation of the State Procurement Agency in 2005, however, the process of tendering and its lack of transparency remain a source of concern112. One key element to Georgia’s approach was to commence with tackling corruption by low level state employees113. The example that is widely cited was to first pass legislation against the receipt of bribes and then to address the very public problem (common across the old Soviet block) of corrupt traffic police. In this case, the existing 16,000 employees were dismissed and their 2,300 replacements were trained in both the legal framework and expected norms114 as well as given new cars and new uniforms. The impact was to reduce one level of the corruption in the Georgian public sector as the bribes paid to police officers were then passed to their superiors and presumably to more senior officials and 108

Di Puppo, L. 2011. The Role of Narratives in Georgia's anti-corruption Reforms. Frankfurt. Transparency International. 27 July 2012a. Georgian Diplomacy servicing the ruling party. Available from: http://transparency.ge/en/blog/georgian-diplomacy-servicing-ruling-party [Accessed 31 July 2012]. 110 Di Puppo, L. 2011. The Role of Narratives in Georgia's anti-corruption Reforms. Frankfurt. 111 Thomas Reuters. 2012. Anti-corruption profile - Georgia [Online]. Trust Law. Available: http://www.trust.org/trustlaw/country-profiles/good-governance.dot?id=c4d713e2-3302-49e7-ae61b7d28842e117 [Accessed 31 July 2012]. 112 Transparency International 2011b. Integrating anti-corruption measures in Georgia’s newly established competition agency. Oslo: Transparency International. 113 OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 114 Di Puppo, L. 2011. The Role of Narratives in Georgia's anti-corruption Reforms. Frankfurt. 109

41

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

politicians in turn. Nonetheless, this somewhat positive development has been criticised as focusing too much on failing to address the root causes and generally putting too much emphasis on curing corruption rather than creating systems to prevent it115. In general the systems required to implement the anti-corruption laws have developed slowly. An early part of Georgia’s reforms was a law on Free Trade and Competition116 adopted in 2005. This was as much aimed at the reduction of the scope for corruption as about opening up previous state monopolies to competition. However, it was not till 2010 that a regulatory body was created and this still lacks critical powers in terms of enforcement and by the end of 2011 no staff had been appointed. Also, the basic act has been criticised as it “does not touch the traditional fields of competition law, such as agreements restricting competition, concerted practices, abusing dominant position in the market, takeovers and mergers, state enterprises and so called natural monopolies117” and only directly addressed the issue of state aid to enterprises.

The fundamental

concern was the lack of effective monitoring and the narrow focus of the legislation which was due to an emphasis on free market economics and did not deal with corruption118. Despite some prosecutions of prominent individuals, the bulk of the effective legislation has been aimed at relatively junior officials who often engage in corrupt practices to supplement their wages119. Against this background there are positive developments, in particular the operation of the revised Tax Laws120.

3.1.2.2

Legal Basis

Corruption is dealt with within the criminal code which criminalises attempted corruption, active and passive bribery, bribing a foreign official as well 115

Thomas Reuters. 2012. Anti-corruption profile - Georgia [Online]. Trust Law. Available: http://www.trust.org/trustlaw/country-profiles/good-governance.dot?id=c4d713e2-3302-49e7-ae61b7d28842e117 [Accessed 31 July 2012]. 116 Transparency International 2011b. Integrating anti-corruption measures in Georgia’s newly established competition agency. Oslo: Transparency International. 117 Transparency International 2010. Competition in Georgia. Oslo: Transparency International., p. 2 118 Ibid. 119 Di Puppo, L. 2011. The Role of Narratives in Georgia's anti-corruption Reforms. Frankfurt. 120 OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD.

42

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

as money laundering and strictly punishes convicted offenders (Criminal Code Art.338-339). The Georgian Parliament has passed a package of constitutional amendments criminalising the abuse of public office and bribery with a maximum sentence of 15 years and confiscation of property. One of Georgia's key anticorruption laws has been the Law on Conflict of Interest and Corruption in the Public Sector, which was incorporated into the 2005 National Anti-Corruption Strategy. The law prohibits corruption among public servants and requires the disclosure of assets by public officials and their families in order to ensure transparency. However, there is no follow-up mechanism in place to monitor and scrutinise these asset statements effectively. In order to prevent conflict of interest, the law also prohibits public servants from involvement in private business121. A recent OECD report122 has noted that the laws on bribery and corruption have been amended to cover a wider range of public officials.

One major

development was to review the question of funding for political parties in the form of the Law on Political Union of Citizens. One key part of this will be to outlaw donations by any entity other than individual citizens of Georgia123 with this limited to a fixed sum each year. This in turn set up a Chamber of Control with the following powers: “the Chamber of Control is authorized to: (a) elaborate standardized format for financial declaration; (b) define adequate auditing standard of financing of electoral subjects; (c) check the accuracy, legality and completeness of the financial declaration and report of electoral campaign fund; (d) ensure the transparency of political party funding; (e) consult the interested persons on political party funding; (f) request the information on political party funding in case of necessity from political parties, administrative bodies and commercial banks; (g) address the violations of political party funding regulations and apply sanctions prescribed by law; (h) address the Prosecution Service in case of detection of crime124”.

121

Thomas Reuters. 2012. Anti-corruption profile - Georgia [Online]. Trust Law. Available: http://www.trust.org/trustlaw/country-profiles/good-governance.dot?id=c4d713e2-3302-49e7-ae61b7d28842e117 [Accessed 31 July 2012]. 122 OECD 2011. Progress Report: Georgia. 123 Ibid. 124 Ibid., p. 2

43

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Rewrite sentence; Therefore Georgia is seen to be working towards anticorruption standards but failing to enforce them adequately… or similar…

3.1.3 Turkey

3.1.3.1

Framework

Despite considerable efforts since the end of military rule, Turkey is still widely perceived to suffer from endemic levels of corruption125. One attempt to address this has been a steady extension of the right to audit public expenditure. Legislation currently going through Parliament126 is designed to open the accounts of State Enterprises, including those run by the military, to legal scrutiny. This new legislation will also address the problem of funding of political parties (with candidates being required to clarify their sources of funding) and will add the concept of an ‘economic crime’ to the Turkish legal code. Legal oversight is provided by the Turkish Grand National Assembly and the Turkish Court of Accounts. The latter is taking on increasingly important role of auditing accounts of state and semi-private enterprises. In addition the Ministry of Interior, Public Prosecutors and Customs officials all play some role in the investigation and prosecution of corruption127. Despite this effort to create both a legal framework and compliance structure, weaknesses in both the tax code and its application continue to undermine efforts to track and prosecute corruption.

3.1.3.2

Legal Elements

The main elements of the legal framework128 are the  

Penal Code; Declarations on the disclosure of assets, bribery and corruption;

125

Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. Turkey Daily News. 2010. Turkey to fight corruption, become transparent with new legislation [Online]. Available: http://www.turkeydailynews.com/news/117/ARTICLE/2466/2010-11-13.html [Accessed 31 July 2012]. 127 Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. 128 Ibid. 126

44

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan



Specific legislation about demanding bribes corporations and to stop them offering bribes.

from

foreign

The 2005 Criminal Code defines bribery as: “bribing as providing a benefit to a public official for the performance or omission of an act contrary to the requisites of the duties of the official”129. A public official who receives a bribe is subject to the same penalty as a person who gives a bribe. The Criminal Code also states that Turkish law covers bribery committed abroad if the crime is committed by a Turkish citizen.

Of importance, the actual transfer of money or another

benefit is not a necessary element of the crime of bribery130. A particular problem is in terms of receipt of gifts and the intent is to prevent this altogether. Turkey has taken the position that state officials should accept no gifts at all131.

The Law forbids civil servants to receive gifts and hospitality in

connection with their duties as set out in the Regulation on the Ethical Behavior Principles of Civil Servants and this also prohibits civil servants from receiving gifts or obtaining further benefits for themselves or their relatives and the receipt of any gift or hospitality, irrespective of its monetary value, constitutes a violation132. The legislation covers civil servants, members of the Parliament, Council of Ministers, Turkish Armed Forces, the judiciary administration and state universities.

The

legislation is clear as what constitutes a gift as: (i)

(ii) (iii)

gifts of greeting, farewell and celebration; scholarships; travel fees; cost-free accommodation and gift vouchers received from those who have a service or interest relationship with the institution that the respective civil servant(s) works for; transactions performed at unreasonable prices compared to market price while purchasing, selling or hiring service, movable or real property; gifts including jewelry, clothes, food or any other goods offered by those benefiting from the public service; and

129

Ibid., p. 13 Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 131 Uslas, A. 2010. Anti-corruption Practices in Turkey [Online]. Global Legal Resources. Available: http://www.hg.org/article.asp?id=18352 [Accessed 31 July 2012]. 132 Ibid. 130

45

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(iv)

(iv) loans and borrowings obtained from those who have business or service relationship with the relevant institution133.

The Criminal Code defines “public official” as any person who performs a public activity through appointment or selection on an unlimited, permanent or temporary basis. This definition of public official is extended for the purposes of the crime of bribery to include companies to which public entities are shareholders or were originally founded with public monies. This also includes associations working for the benefit of the public, cooperative companies; and any joint stock company with shares quoted on stock exchanges134. In terms of those leaving public employment135 the legislation sets out that former government officials are prohibited for a period of three years from the date of their retirement or resignation from acting as broker, representative or consultant, directly or indirectly, for any government agency(ies) that they have served in the last two years before their date of retirement or resignation. The penalties for breach of this law range from 6 months to 2 years imprisonment136. This represents an extension on the 2004 Ethical Rules Law137 that created an Ethical Board to investigate any irregularities.

That law also set out the

requirements for public officials to meet standards of transparency, impartiality, honesty, accountability and pursuing the public interest. The Ethical Board was granted the authority necessary to perform their duties in an efficient manner138. In addition, Turkey has brought into domestic law many of the requirements of the UN Commission on Corruption139 in terms of legislation around tendering for public contracts and money laundering140. This includes standard legislation

133

Ibid. Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 135 Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. 136 Uslas, A. 2010. Anti-corruption Practices in Turkey [Online]. Global Legal Resources. Available: http://www.hg.org/article.asp?id=18352 [Accessed 31 July 2012]. 137 Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. 138 Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 139 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN. 140 Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. 134

46

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

prepared by the OECD and the Council of Europe and was mostly adopted as part of Turkey’s bid for EU membership141.

3.1.4 Vietnam

3.1.4.1

Framework

Again, a wide range of bodies have responsibility for the administration of the relevant legislation. These include142:          

The State Audit of Vietnam; The Government Inspectorate; The Central Steering Committee for Corruption Prevention and Combat (“CSCCPC”); The Provincial/Municipal Steering Committees for Corruption Prevention and Combat (“PSCCPC”); The Interdisciplinary Steering Committee for Anti-Money Laundering (“ISCAML”); The Anti-Money Laundering Information Centre (“AMLIC”); The State Bank of Vietnam (“SBV”); The Ministry of Police; The Supreme Public Prosecution Office; and The Supreme People’s Court.

The State Audit is responsible for auditing agencies and organisations managing the state budget, money and property. The Government Inspectorate is responsible for organising inspections to check the, direct and guide the inspection of the observance of legal provisions on corruption prevention. Where corrupt acts are detected, it will request competent agencies or organisations to take appropriate action.

The CSCCPC is headed by the Prime Minister and has

national responsibility for directing, coordinating and inspecting activities to prevent corruption. PSCCPC’s are headed by the provincial/municipal People’s Committees presidents and have responsibility for directing, coordinating and inspecting activities to prevent corruption in their respective localities. 141

Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. 142 Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations.

47

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

ISCAML primarily assists the Prime Minister to draw up strategies on antimoney laundering and anti-terrorist financing and works with relevant Ministries to implement such strategies. AMLIC is a subsidiary unit of the SBV, and coordinates the receipt and processing of information in relation to money laundering. AMLIC assists the SBV Governor and has the right to require any body, organisation or individual involved to provide data, files or information on transactions over certain values specified in law and in relation to suspicious transactions specified in law. The SBV has the prime responsibility for preventing money laundering and works with the Ministry of Police/police and other concerned bodies in formulating and implementing strategies, guidelines, policies and plans to prevent money laundering in Vietnam. The Ministry of Police organises teams to investigate corruption, money laundering related crime and terrorism related activities. Both the Ministry of Police and Ministry of Defence, within the ambit of their powers, have the responsibility to direct the investigation of corruption related crimes and terrorist related activity. In turn, the Supreme Public Prosecution Office organises and directs the prosecution of corruption cases, money laundering, related crime and terrorism related activities; to control investigations, adjudication and judgment executions against corruption, money laundering related crime and terrorism related activities. The Supreme People’s Court adjudicates on corruption, money laundering and terrorism related activities.

3.1.4.2

Legal Basis

The principal law regulating corruption in Vietnam is the Law on AntiCorruption143. Supplemental regulations are also issued by the Government and the Prime Minister. In addition, the Penal Code also governs corruption.

The

legislation is described as robust but let down by poor implementation and lack of co-ordination between the various investigating bodies144. Under the Law on Anti-

143 144

48

President of the Socialist Republic of Vietnam 2005. The Anti-corruption Law. Geneva: OECD. Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Corruption and the Penal Code145, corruption means acts committed by persons with positions and/or powers abusing such position and/or powers for self-seeking interests. Corrupt acts include:  

 







 

145

49

embezzling property – persons who abuse their positions and/or powers to appropriate the property which they are responsible for managing; receiving bribes – persons who abuse their positions and/or power by accepting or agreeing to accept directly or through intermediaries money, property or other material interests in any form in order to perform or not to perform certain jobs for the benefit or at the request of the bribe offerer; abusing positions and/or powers to appropriate properties – persons who abuse their position and/or powers to appropriate other persons’ property; taking advantage of positions and/or powers while performing tasks or official duties for self-seeking interests – persons who, for selfseeking or other personal motivation, abuse their positions and/or powers to act contrary to their official duties, causing damage to the interests of the State and society and/or the legitimate rights and interests of citizens; abusing powers while performing tasks or official duties for selfseeking interests – persons who, for self-seeking or other personal motivation, act beyond their powers contrary to their official duties, causing damage to the interests of the State and the society, and/or to the legitimate rights and interests of citizens; taking advantage of positions and/or powers to influence other persons for self-seeking interests – persons who abuse positions and/or powers, have accepted or will accept directly or through intermediaries money, property or other material interests in any form to use their influence and incite persons with positions and powers to do or not to do something within the sphere of their responsibility or directly related to their work or to do something they are not allowed to do; committing forgeries in work for self-seeking interests – persons who, for self-seeking or other personal motivation, abuse their positions and/or powers to commit amendment or falsifying contents of papers or documents, or to make and/or grant counterfeit papers, or to forge signatures of persons with positions and powers; offering bribes or bribe brokerage by persons with positions and/or powers to settle affairs of agencies, organisations, units or localities for self-seeking interests; taking advantage of positions and/or powers to illegally use state properties for self-seeking interests;

President of the Socialist Republic of Vietnam 2005. The Anti-corruption Law. Geneva: OECD.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan







3.2

harassment for self-seeking interests – acts of authoritarianism, causing difficulties or trouble when performing tasks or official duties with a view to demanding or compelling citizens, enterprises, organisations and other individuals to pay expenses against regulations or to perform other acts for the interests of the persons who commit acts of harassment; failure to perform tasks or official duties for self-seeking interests – deliberately failing to fulfil the responsibilities prescribed for persons with powers or position to prevent, detect or handle offences or failing to strictly observe the order, procedures and time limits prescribed for their task or official duties for self-seeking interests; and taking advantage of positions, powers to cover up law violators for self-seeking interests; illegally hindering, intervening in the examinations, inspections, audits, investigations, prosecutions, adjudications or judgment executions for self-seeking interests – using one’s position, power or influence to cover up or help lessen law-breaking acts of other persons, or to cause difficulties in examinations, inspections, audits, investigations, prosecutions, adjudications or judgment executions or to distort the results of the above activities.

Key Principles The OECD146 stresses that a fundamental principle to any anti-corruption

legislation is to criminalise corruption (and thus to ensure it is not seen as acceptable or something for which purely administrative sanctions are appropriate) and to create a framework that will prevent corruption occurring. In this section the focus is on the elements needed to ensure that corruption is brought within the criminal law of a given state. In addition, there are a number of elements that any legal code needs to cover147. First there is a need to remove any parallel systems of administrative and criminal liability for corruption-related offences which overlap and result in general weakening of measures to fight corruption. Furthermore, general laws against corruption adopted in many countries create an impression of a strong legal base – but they are often inactive, as their provisions are not supported by criminal or

146

OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 147 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN.

50

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

administrative laws. In effect, there is a need to clarify and draw together the various strands of anti-corruption legislation148. It is not enough to criminalise giving and taking bribes without also establishing that offering bribes is equally an offence. This must include attempts as well actual acts of bribery. In addition, the full range of corruption-related offences set out under the UN Convention against Corruption (UNCAC)149 needs to be included such as money laundering, accounting offences and embezzlement. Legislation should also cover abuse of office andthe use of non-material benefits.150. The definition of public officials requires care to ensure it draws in all who in some way are involved in public administration. Such legislation must also include the criminalisation of bribery of foreign public officials Mandatory value-based confiscation of tools and proceeds of corruption should be included along with the confiscation of the proceeds of corruption offences, including confiscation of private assets where legal purchase cannot be proved. In this sense, money laundering legislation is useful as it provides a means to prosecute those who seek to obscure the origin of cash and other forms of wealth151.

3.3

Legislative Examples A comprehensive and generic format for anti-corruption legislation has

been produced by the United Nations152. This is reproduced as Annex 3 to this report. However, drawing from that and the discussions above, it is useful to note the core elements, relevant to Pakistan: 1. The importance of a clear definition of what is meant by corruption; 2. That corruption legislation should include broad definitions of who is involved – not just direct state employees and politicians but 148

UNCAC. 2012. About the Coalition [Online]. UNCAC Civil Society Coalition. Available: http://www.uncaccoalition.org/en/about-us/about-the-coalition.html [Accessed 24 June 2012]. 149 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN. 150 UNCAC. 2012. About the Coalition [Online]. UNCAC Civil Society Coalition. Available: http://www.uncaccoalition.org/en/about-us/about-the-coalition.html [Accessed 24 June 2012]. 151 Glenny, M. 2008. McMafia: Crime Without Frontiers, London, Bodley Head. 152 United Nations 2003. United Nations Convention Against Corruption. Geneva: UN.

51

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

individuals employed by any agency funded by the state as well as actions between private sector bodies. The UN draft contains useful definitions for both scope and as to the nature of the services delivered for the public sector but by the private sector; 3. That the legislation must be linked to enforcement bodies with independence, resources and legal powers; 4. The legislation should be accompanied by clear codes of conduct; 5. It is important to include legislation on money laundering in the corruption acts; 6. It is important to set out when administrative sanctions will be applied and when the criminal law will be used in cases of corruption; 7. It is important to include requirements on the private sector to cooperate, especially in terms of banking secrecy; 8. The legislation should include corruption carried out by nationals in other countries as well as by citizens of other countries operating in Pakistan; 9. The legislation needs to link to relevant international treaties and to cover issues such as extradition and the means to resolve potential conflicts between different judicial systems; 10. The legislation should create a body to investigate corruption that will be independent, have sufficient powers and be able to initiate prosecutions free from political pressure; 11. The legislation should create a framework to arrange for the confiscation of assets, both held in Pakistan and moved abroad153.

153

52

Ibid.

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

4: Whistleblowers This is the final element of any effective anti-corruption legislation. Ideally transparency legislation (either standard disclosure or on request) should help expose and in consequence, reduce the incidence of corruption. The corruption legislation discussed in Chapter 3 should define and allow effective prosecution. Whistleblowing is an essential third part to this framework as it gives individual employees the confidence to expose situations where either the transparency or the corruption legislation has failed to work.

Employees are more likely to detect

misconduct, fraud and corruption in the course of their duties than outsiders and the effective detection of wrongdoing heavily relies on insiders’ tips and information154.

4.1

Overview This section offers a brief overview of the approach and problems in four

different countries. In summary, it indicates that producing robust whistleblower protection legislation is difficult but also remains a key element to an effective anticorruption approach.

4.1.1 Bangladesh Bangladesh has recently passed whistleblower protection in the form of the Public Interest Related Information Disclosure (Protection) Act 2011155. This has generally been welcomed156 both for the content and the approach of working closely with civil society groups in its creation157. The legislation is relatively simple but covers the key issues of defining who can disclose, the distinction between

154

Zaman, I., Das, S. K. & Islam, S. L. 2011. Bangladesh. Transparency International Bangladesh. Information Commission of Bangladesh 2011. Annual Report. Dhaka. 156 Transparency International 2011a. Bangladesh Review Report. United Nations Convention against Corruption. 157 Zaman, I., Das, S. K. & Islam, S. L. 2011. Bangladesh. Transparency International Bangladesh. 155

53

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

internal and external disclosure and protection for individuals who do bring wrong doing to wider attention.

4.1.2 Canada Canada’s Whistleblowing legislation is argued by some to be a model of its type158 and by others to be deeply flawed159. All such legislation has a need to balance the two principles of the employee’s right (and duty) to freedom of expression and their duty of loyalty to their employer. In the case of Canada, the argument is the current legislation places too much emphasis on the need to ‘retain public confidence’ and in practice this has been used to prosecute rather than protect whistleblowers160.

Other practical flaws that have been identified

include:     

It is not clear which agency has overall responsibility; The definition of public employee in this respect is very narrowly drawn and members of the police, armed forces and security services are not protected; Many such acts have clauses that seek to stop ‘frivolous disclosure’ and the argument is that Canada has made this far too broad a category; The time limits in which a case can be raised are restrictive and make it hard for ex-officials to raise concerns after they have left their job; More widely, any whistleblower who is not a serving public servant is not protected by the legislation.

4.1.3 India In India161 the Law Commission produced a report on Public Interest Disclosure and Protection of Informers in 2001. This report arose from recognising 158

Office of the Chief Human Resources Officer. 2012. Public Servants Disclosure Protection Act [Online]. Ottawa: Treasury Board of Canada. Available: http://www.tbs-sct.gc.ca/ve/pda-eng.asp [Accessed 24 July 2012]. 159 The Federal Accountability Initiative for Reform 2010. What’s Wrong with Canada’s Federal Whistleblower Legislation. 160 Ibid. 161 Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations.

54

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

the need for legislation to encourage individuals to disclose corruption and to protect people making such disclosures. Subsequently, this became the Public Interest Disclosure (Protection of Informers) Bill 2002. The Bill encourages the disclosure of information relating to the conduct of any public servant involving the commission of any offence under the corruption legislation or any other law for the time being in force, abuse of official position or maladministration and to protect persons making such disclosures. While this legislation was being prepared, the central government authorised the Central Vigilance Commission, as the designated agency, to receive written complaints or disclosure on any allegation of corruption or of misuse of office by certain public servants including any employees of government companies. The original legislation was then reworked into The Whistle-Blowers (Protection in Public Interest Disclosures) Bill, 2006 which was passed by the Parliament but failed to gain Presidential assent. Subsequently, a new Public Interest Disclosure and Protection to Persons making the Disclosures Bill, 2010 is likely to be introduced in the Parliament. The bill seeks to provide a mechanism for receipt of complaints relating to corrupt practices and also intends to protect individuals, who bring to light instances of corruption in any government, public or private enterprise to the relevant authority.

4.1.4 Georgia Whistleblower protection in Georgia162 is ensured by the 2004 Law on Freedom of Speech and Expression (Art. 12) which has the key caveat that disclosure must be judged to be in 'the public and lawful societal interest'163. However, whistleblowers within state institutions reportedly continue to suffer from disciplinary action and harassment when they report suspicious activities within state institutions. In practice, whistleblowers lack protection due to weak legislation

162

Thomas Reuters. 2012. Anti-corruption profile - Georgia [Online]. Trust Law. Available: http://www.trust.org/trustlaw/country-profiles/good-governance.dot?id=c4d713e2-3302-49e7-ae61b7d28842e117 [Accessed 31 July 2012]. 163 Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International.

55

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

and this seriously undermines other aspects of Georgia’s commitment to tackling corruption164.

4.2

Draft Legislation The draft legislation prepared by the Organisation of American States

(OAS) for its member states165 can be found in Annex 4.

This section briefly

summarises the main elements that should be included in any relevant legislation. The key issues include: 1. Clear and broad definitions of both who is covered (as a public official) and the range of issues that can raised; 2. A definition that draws a distinction between ‘good-faith’ and ‘badfaith’ whistleblowing; 3. Protection of the whistleblower including anonymity if that is appropriate; 4. Protection of the whistleblower from workplace reprisals; 5. Protection in cases of exposure of criminal actions166.

164

Global Integrity. 2009. Georgia: 2009 [Online]. Washington: Global Integrity. Available: http://report.globalintegrity.org/Georgia/2009/ [Accessed 3 August 2012]. 165 Department of Legal Cooperation 2011b. Draft Model Law to Facilitate and Encourage the Reporting of Acts of Corruption and to Protect Whistleblowers and Witnesses. Organization of American States. 166 Ibid.

56

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

5: Conclusions This paper has concentrated on the legal structures required to deal with corruption.

This can be summarised as falling into three parts: transparency;

corruption; and protection of whistleblowers.

The three are complementary.

Ideally, transparency will not only expose instances of corruption but it will also deter public officials from engaging in corrupt practices. Legislation around asset disclosure and FOI all assist in creating an environment where those who are corrupt are more likely to be caught. The core of such a legal structure lies in the careful definition of what is meant by corruption, who is covered by such legislation and the use of criminal not administrative sanctions.

In turn, protection for

whistleblowers can be seen as a safety net. Individual employees are more likely than external auditors to spot corrupt practices and should be protected if they raise these concerns. The examples cited are often quoted as good practice in terms of the legal structure. As such this paper is not an evaluation of their effectiveness (although some issues are discussed where appropriate),

but affirms that any robust

approach to corruption requires a legal framework, administrative resources, political will and the engagement of civil society167. In addition, no judgement is made about the failings of some of the international bodies that are often involved in creating standards that they, themselves, fail to match168. A final important aspect is that the problem continues to change.

The

linkage between corruption, organised crime and terrorism is important169 and that involves consideration of money laundering and the extent that physical fear may play a role. New areas of concern arise for example in terms of conflict of interest where a steadily growing level of attention is being paid to the role of lobbyists and

167

Hanna, R., Bishop, S., Nadel, S., Scheffler, G. & Durlacher, K. 2011b. The effectiveness of anticorruption policy What has worked, what hasn’t, and what we don’t know. In: Eppi-Centre, S. S. R. U. (ed.). London: Institute of Education, OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. 168 BBC. 2007. World Bank head Wolfowitz to quit [Online]. Available: http://news.bbc.co.uk/1/hi/business/6667975.stm [Accessed 20 November 2010]. 169 Glenny, M. 2008. McMafia: Crime Without Frontiers, London, Bodley Head.

57

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

the extent that state policy is being influenced outside the democratic process170. Also, the growing use of the private sector to deliver state services is creating new conflicts of interest and new areas where corruption may arise171. The four annexes to this paper cover examples of either model or extant legislation that address some of the concerns raised in the body of the text. They are reprinted verbatim from the original source documents.

As such, before

application they would need to be recast to reflect legal norms and expectations but do cover the main issues highlighted in the text.

170

Chari, R., Hogan, J. & Murphy, G. 2010. Regulating Lobbying: A Global Comparison, Manchester, Manchester University Press. 171 OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD, OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD.

58

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

References African Union 2003. African Union Convention on Preventing and Combating Corruption. Maputo. ARTICLE 19. 2002. The Federal Government of Pakistan’s Freedom of Information Ordinance [Online]. London: Global Campaign for Free Expression. Available: http://www.article19.org/data/files/pdfs/analysis/pakistan.foi.02.pdf [Accessed 14 July 2012]. BBC. 2007. World Bank head Wolfowitz to quit [Online]. Available: http://news.bbc.co.uk/1/hi/business/6667975.stm [Accessed 20 November 2010]. Chari, R., Hogan, J. & Murphy, G. 2010. Regulating Lobbying: A Global Comparison, Manchester, Manchester University Press. Dagi, I. 1996. Democratic Transition in Turkey, 1980-83: The Impact of European Diplomacy. Middle Eastern Studies, 32, 124-141. Department of Legal Cooperation. 2011a. Anti-Corruption Portal of the Americas [Online]. Organization of American States. Available: http://www.oas.org/juridico/english/fightcur.html [Accessed 24 July 2012]. Department of Legal Cooperation 2011b. Draft Model Law to Facilitate and Encourage the Reporting of Acts of Corruption and to Protect Whistleblowers and Witnesses. Organization of American States. Department of Legal Cooperation 2011c. Text of the Draft Model Law on the Declaration of Interests, Income, Assets and Liabilities of Persons performing Public Functions. Organization of American States. Department of Public Expenditure and Reform. 2012. Freedom Of Information Website [Online]. Dublin: FOI Central Policy Unit. Available: http://foi.gov.ie/ [Accessed 13 July 2012]. Di Puppo, L. 2011. The Role of Narratives in Georgia's anti-corruption Reforms. Frankfurt. Djankov, S., Porta, R. L., Florencio Lopez-de-Silanes & Shleifer, A. 2010. Disclosure by Politicians. American Economic Journal: Applied Economics, 2, 179-209. Durna, M. & Patoğlu, A. 2011. (Turkey) Corruption Report. Ankara: Ministry of Interior. European Commission. 2011. Proposal for Directive on transparency requirements for listed companies and proposals on country by country reporting [Online]. Brussels: Europa Press Room. Available: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/734 &format=HTML&aged=0&language=EN&guiLanguage=en [Accessed 11 July 2012]. Glenny, M. 2008. McMafia: Crime Without Frontiers, London, Bodley Head. Global Integrity. 2009. Georgia: 2009 [Online]. Washington: Global Integrity. Available: http://report.globalintegrity.org/Georgia/2009/ [Accessed 3 August 2012].

59

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Hanna, P. R., Bishop, S., Nadel, S., Scheffler, G. & Durlacher, K. 2011a. The effectiveness of anti-corruption policy What has worked, what hasn’t, and what we don’t know. In: Eppi-Centre, S. S. R. U. (ed.). London: Institute of Education. Hanna, R., Bishop, S., Nadel, S., Scheffler, G. & Durlacher, K. 2011b. The effectiveness of anti-corruption policy What has worked, what hasn’t, and what we don’t know. In: Eppi-Centre, S. S. R. U. (ed.). London: Institute of Education. IBNLive. 2012a. Govt mulling private sector corruption law [Online]. Available: http://ibnlive.in.com/news/govt-mulling-private-sector-corruptionlaw/261894-3.html [Accessed 24 June 2012]. IBNLive. 2012b. Govt mulling private sector corruption law [Online]. Available: http://ibnlive.in.com/news/govt-mulling-private-sector-corruptionlaw/261894-3.html [Accessed 24 June 2012]. Information Commission of Bangladesh 2011. Annual Report. Dhaka. Lee, M. J. & Moon, M. J. 2011. Trends and Patterns of Public Information Disclosure in Korean Government. Freedominfo.org. Ministry of Justice. 1987. The Danish Access to Public Administration Files Act [Online]. Available: http://aabenhedskomite.homepage.dk/07love/offentlighedsloven_paa_eng elsk.htm [Accessed 13 July 2012]. Ministry of Justice 1999. Decree on the Openness of Government Activities and on Good Practice in Information Management. Helsinki: Ministry of Justice. Ministry of Law and Justice 2005. The Right to Information Act. New Delhi: Ministry of Law and Justice. National Security Archive. 2010. The Mexico Freedom of Information Program [Online]. George Washington University. Available: http://www.gwu.edu/~nsarchiv/mexico/transparency.htm [Accessed 14 July 2012]. National Security Archive. 2012. Resources on Mexican Constitutional Reform on Access to Information [Online]. George Washington University. Available: http://www.gwu.edu/~nsarchiv/mexico/article6.htm [Accessed 14 July 2012]. OECD 2003. Managing Conflict of Interest in the Public Sector - A Toolkit. Geneva: OECD. OECD 2007. Legislation on Lobbying in Europe. Geneva: OECD. OECD 2008. Fighting Corruption in Eastern Europe and Central Asia: The Istanbul Anti-Corruption Action Plan. OECD. OECD 2011. Progress Report: Georgia. Office of the Chief Human Resources Officer. 2012. Public Servants Disclosure Protection Act [Online]. Ottawa: Treasury Board of Canada. Available: http://www.tbs-sct.gc.ca/ve/pda-eng.asp [Accessed 24 July 2012]. Okuyucu-Ergün, G. 2008. Anti-Corruption Legislation In Turkish Law. German Law Journal, 8, 903-914. President of the Socialist Republic of Vietnam 2005. The Anti-corruption Law. Geneva: OECD.

60

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

PRS Legislative Research. 2010. Corruption laws in India [Online]. Available: http://www.prsindia.org/administrator/uploads/general/1302844978_PRS %20Note%20on%20corruption%20laws.pdf [Accessed 24 July 2012]. Republic of South Africa. 1996. Section 32(1)(b) of the Constitution of the Republic of South Africa [Online]. Available: http://unpan1.un.org/intradoc/groups/public/documents/un/unpan00517 2.pdf [Accessed 13 July 2012]. Rossi, I., Pop, L., Clementucci, F. & Sawaqed, L. 2012. Using Asset Disclosure for Identifying Politically Exposed Persons. Washington: International Bank for Reconstruction and Development. SAICA. 2011. An integrated report is a new requirement for listed companies [Online]. Johannesburg: South African Insitute of Chartered Accountants. Available: https://www.saica.co.za/tabid/695/itemid/2344/language/enZA/An-integrated-report-is-a-new-requirement-for-list.aspx [Accessed 24 July 2012]. Sajjad, A. 2010. Sarbanes Oxley and Pakistan: way forward? [Online]. Karachi: ACCA. Available: http://www2.accaglobal.com/databases/pressandpolicy/pakistan/sox [Accessed 24 June 2012]. Smith, H. 2011. Guide to anti-corruption regulation in Asia. United Nations. Soyaltın, D. 2012. Europeanization Decoupled? Fighting Corruption in Turkey [Online]. Research Turkey. Available: http://researchturkey.org/wp/wordpress/?p=1205 [Accessed 24 June 2012]. Taj, A. 2012. Problem of corruption [Online]. Lahore: Dawn. [Accessed 24 June 2012]. The Federal Accountability Initiative for Reform 2010. What’s Wrong with Canada’s Federal Whistleblower Legislation. The Hindu. 2011. Whistle-blowers Bill passed [Online]. New Delhi: The Hindu. Available: http://www.thehindu.com/news/national/article2752946.ece [Accessed 24 June 2012]. Thomas Reuters. 2012. Anti-corruption profile - Georgia [Online]. Trust Law. Available: http://www.trust.org/trustlaw/country-profiles/goodgovernance.dot?id=c4d713e2-3302-49e7-ae61-b7d28842e117 [Accessed 31 July 2012]. Transparency International 2010. Competition in Georgia. Oslo: Transparency International. Transparency International 2011a. Bangladesh Review Report. United Nations Convention against Corruption. Transparency International 2011b. Integrating anti-corruption measures in Georgia’s newly established competition agency. Oslo: Transparency International. Transparency International. 27 July 2012a. Georgian Diplomacy servicing the ruling party. Available from: http://transparency.ge/en/blog/georgiandiplomacy-servicing-ruling-party [Accessed 31 July 2012]. Transparency International 2012b. Handbook on Freedom of Information in the South Caucasus Countries. Prague: Transparency International.

61

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Tsagareishvili, N. 2011a. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 14 July 2012]. Tsagareishvili, N. 2011b. Public Data Accessibility in Georgia [Online]. Oslo: Human Rights House. Available: http://humanrightshouse.org/Articles/16112.html [Accessed 17 March 2012]. Turkey Daily News. 2010. Turkey to fight corruption, become transparent with new legislation [Online]. Available: http://www.turkeydailynews.com/news/117/ARTICLE/2466/2010-1113.html [Accessed 31 July 2012]. UNCAC. 2012. About the Coalition [Online]. UNCAC Civil Society Coalition. Available: http://www.uncaccoalition.org/en/about-us/about-thecoalition.html [Accessed 24 June 2012]. United Nations. 1947. The Prevention Of Corruption Act, 1947 [Online]. Available: http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan047 878.pdf [Accessed 24 June 2012]. United Nations 2003. United Nations Convention Against Corruption. Geneva: UN. US Senate. 2002. Sarbanes-Oxley Act [Online]. Washington: US Government Printing Office. Available: http://www.gpo.gov/fdsys/pkg/PLAW107publ204/content-detail.html [Accessed 24 July 2012]. Uslas, A. 2010. Anti-corruption Practices in Turkey [Online]. Global Legal Resources. Available: http://www.hg.org/article.asp?id=18352 [Accessed 31 July 2012]. Zaman, I., Das, S. K. & Islam, S. L. 2011. Bangladesh. Transparency International Bangladesh.

62

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Annex 1: Sample Legislation on Lobbying POLAND: Act of 7 July 2005 on legislative and regulatory lobbying1 Chapter 1 General Provisions Article 1 This Act lays down the rules of openness governing legislative and regulatory lobbing and the rules governing professional lobbying, determines the forms in which control can be exercised over professional lobbying, and sets out the rules for the keeping of the Register of Professional Lobbyists and Lobbying Firms. Article 2 1. For the purposes of the Act, lobbying means any legal action designed to influence the legislative or regulatory actions of a Public Authority. 2. For the purposes of the Act, professional lobbying means any paid activity carried out for or on behalf of a third party with a view to ensuring that their interests are fully reflected in legislation or regulation proposed or pending. 3. Professional lobbying can be carried out by a firm (hereinafter referred to as the Professional Lobbying Firm) or by an individual not register as such (hereinafter referred to as the Professional Lobbyist) pursuant to a civil contract,.

Chapter 2 Rules of Openness Governing Legislative Lobbying

Article 3 1. At least once every six months the Council of Ministers shall develop their Legislative Work Programme related to their drafting legislation. 1 This Act amends the following: the Act of 9 May 1996 on carrying out the mandate of a Deputy to the Sejm or of a Senator (JL of 2003, No 221, item 2199, as amended), Act of 8 August 1996 on the Council of Ministers (JL of 2003, No 24, item 199; and No 80, item 717; and of 2004, No 238, item 2390; and No 273, item 2703), and Act of 4 September 1997 on Government ministries and departments (JL of 2003, No 159, item 1548, as amended).

2. A notice on the Programme referred to in paragraph 1, shall contain the following, in particular: (1) Short information on the reasons and the need for the arrangements proposed; (2) The merits of the arrangements proposed; (3) The Authority responsible for drafting the legislation involved; (4) The name and the position or function of the individual responsible for drafting the legislation involved; (5) The address for the Official Government Information Website: the Public Information Bulletin (hereinafter referred to as the “Bulletin”) that is to be used to publish documents referred to in Article 5 or 6. 3. In addition, the notice referred to in paragraph 2 shall contain information on the work on the legislative proposal(s) that has been discontinued, stating the reasons therefore. 4. The Programme referred to in paragraph 1 shall be published in the Bulletin. 5. The Council of Ministers shall forthwith submit the Programme referred to in paragraph 1 to the Sejm [Lower House of the National Assembly]. Article 4

63

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

The Council of Ministers, the President of the Council of Ministers, and the individual ministers shall develop their Regulatory Work Programmes related to their drafting their regulations. Article 3(2) to (4) shall apply mutatis mutandis. Article 5 Any legislative or regulatory proposal shall be published in the Bulletin upon their being forwarded to the members of the Council of Ministers for consultation. Article 6 Upon the Legislative Work Programme referred to in Article 3, legislative proposal not included therein, Regulatory Work Programme referred to in Article 4, or regulatory proposal not included therein, being published in the Bulletin, the Authority concerned shall also publish in the same all the documents related to the proposal(s) involved. Article 7 1. Upon the Legislative Work Programme referred to in Article 3, legislative proposal not included therein, Regulatory Work Programme referred to in Article 4, or regulatory proposal not included therein, being published in the Bulletin, anyone can notify their interest in the legislation or regulation involved. 2. The notification referred to in paragraph 1 shall be on the official form, submitted to the Authority responsible for drafting the legislation or regulation involved. 3. The notification referred to in paragraph 1 shall be published, excluding the address of the individual concerned, in the Bulletin as a document related to the legislation or regulation involved. 4. The notification referred to in paragraph 1 shall contain the following: (1) The names and addresses of the individuals authorised to represent the entity concerned during the work on the legislation or regulation involved; (2) The name and registered office of the entity concerned if that entity is a corporate one; (3) The name and (official) address of the entity concerned if that entity is not a corporate one; (4) The interests that vis-à-vis the legislation or regulation involved are intended to be safeguarded or the legal arrangements the inclusion of which is to be sought. 5. The notification referred to in paragraph 1 shall be accompanied by the following: (1) A proof of entry in the Register, referred to in Article 11(8), if it is being effected by the Professional Lobbyist or the Professional Lobbying Firm; (2) An extract from the National Court Register related to the corporate entity concerned, if it is being effected for or on behalf of the corporate entity entered therein. 6. The entity that has notified their interest in the legislation or regulation involved shall notify the Authority responsible for drafting it of all the changes to the details previously supplied within seven days of their occurrence. 7. The Council of Ministers shall lay down the procedure for notifying interest in the legislation or regulation proposed or pending, including the specimen of the form therefore. It shall do so via their Ordinance, having regard to the need to facilitate notifying such interest. Article 8 1. In cases where the legislative proposal has been tabled before the Sejm, a public hearing may be conduced thereon, subject to its Rules of Procedure. 2. The entity that has notified their interest in the legislation involved may participate in any public hearing related thereto, subject to the Rules of Procedure of the Sejm. Article 9 1. The Authority responsible for drafting the regulation involved may hold a public hearing thereon. 2. The date and time for the public hearing referred to in paragraph 1 shall be published in the Bulletin at least seven days before.

64

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

3. The right to participate in the public hearing referred to in paragraph 1 can be exercised by anyone that has notified their interest in the regulation involved at least three days before. 4. In cases were due to the space and/or technical constraints, and in particular the excessive number of those wanting to attend, it is impossible to hold a public hearing on the regulation involved, the Authority concerned may: (1) Change the date and time and/or the venue therefore, publishing in the Bulletin the new details and the reasons therefore; (2) Cancel it, publishing in the Bulletin the reasons therefore. 5. The Authority responsible for organising the public hearing shall in particular: (1) Name the individual that shall chair it; (2) Ensure that it proceeds smoothly; (3) Give to those that desire it leave to speak. 6. The Council of Ministers shall lay down the procedure for holding public hearings on regulatory proposals and the method by which their course is to be documented. It shall do so via their Ordinance, having regard to the need to identify those that participate in such hearings, to guarantee their right to be heard, and to ensure that such hearings proceed smoothly.

Chapter 3 Register of Professional Lobbyists and Lobbying Firms and Rules Governing Professional Lobbying Article 10 1. The Register of Professional Lobbyists and Lobbying Firms (referred to hereinafter as the “Register”) is hereby established. 2. The Minister having jurisdiction over matters related to public administration shall keep the Register. It shall have the form of a database containing information stored with the use of the data mediums within the meaning of the Act of 17 February 2005 on the introduction and use of information technology within the organisations carrying out public tasks and functions2. 3. The entry in the Register shall contain the following: (1) The name and address of the Professional Lobbyist or the name, registered office, and any other address of the Professional Lobbying Firm concerned; and (2) In cases of a Professional Lobbying Firm their number in the National Court Register or their firm registration number. 4. The Register shall be accessible to the public. 5. The information contained in the Register shall be published, with the exception of the addresses of the Professional Lobbyists, in the Bulletin. Article 11 1. The entry into the Register shall be effected based on the relevant application. 2. The application referred to paragraph 1 shall be on the official form. It shall contain the following in particular: (1) The name and address of the Professional Lobbyist or the name, registered office address, and any other address of the Professional Lobbying Firm concerned; and (2) In cases of a Professional Lobbying Firm their number in the National Court Register or their firm registration number. 3. The application referred to in paragraph 1 shall be accompanied by any documentary evidence needed to confirm the details. 4. In cases where the application referred to in paragraph 1 is found to suffer from formal defects, the Authority responsible for keeping the Register invites the Applicant concerned to resolve them. 5. In cases where the application submitted is found to be manifestly unfounded or

65

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

where the formal defects are not resolved within seven days though the Applicant has been invited to do so, the Authority responsible for keeping the Register shall refuse to enter him (her) therein. The refusal shall have the form of an administrative decision. 6. The entry into the Register shall be against a fee. The fee shall be paid upon the submission of the application concerned. The fee shall not exceed PLN 100. 7. The entity entered in the Register shall notify the Authority responsible for keeping it of any changes to the details previously supplied within seven days of their occurrence. 8. The Authority responsible for keeping the Register shall, on request from the entity entered therein, issue a proof of entry. The proof shall be valid for three months from the date of issue. 9. The Authority responsible for keeping the Register shall, on request of the entity entered, remove the latter there from. 10. The Minister having jurisdiction over matters related to public administration shall determine: (1) The procedures for applying to be entered in the Register, for effecting the entry applied for, and for applying for amendment of the details previously entered, including the specimens of the forms therefore; (2) The types of the documentary evidence referred to in Article 11(3); (3) The specimen of the proof of entry in the Register; (4) A fee for entry into the Register. The Minister shall do so via their Ordinance, having regard to the need to facilitate applying for entry in the Register. Article 12 Professional lobbying may be carried out subject to being entered in the Register. Article 13 In cases where the valid decision is issued pursuant to Article 41 of the Penal Code, or to Article 9(1)(5) of the Act of 28 October 2002 on liability of collective bodies for acts that are prohibited under a penalty3, by which the Professional Lobbyist/Lobbying Firm is disqualified from carrying on their lobbying activity, the Authority responsible for keeping the Register shall remove it there from. The removal shall be effected pursuant to an administrative decision. Article 14 1. The Professional Lobbyist or Professional Lobbying Firm concerned can carrying out their lobbying activity also in the Office of the Public Authority involved. 2. The Manager of the Office referred to in paragraph 1 shall provide the Professional Lobbyist or Professional Lobbying Firm entered in the Register access to the Office he manages so as to allow it to properly represent the interests of the entity for or on behalf of which their lobbying is being carried out. 3. Professional lobbying within the Sejm or Senate shall be carried out pursuant to their respective Rules of Procedure. Article 15 The Professional Lobbyist or Professional Lobbying Firm shall furnish the Public Authority or an employee of its Office before which he or it appears a proof of entry in the Register, together with a written statement naming the entity for or on behalf of which the lobbying activity involved is being carried out.

Chapter 4 Exercise of Control over Professional Lobbying

Article 16 1. The Public Authority concerned shall forthwith publish in the Bulletin information on

66

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

measures taken or being taken in relation to them by the Professional Lobbyist or Professional Lobbying Firm involved. Such information shall include the decision sought. 2. The Manager of the Office of the Public Authority concerned shall, acting within their terms of reference, lay down detailed procedures to be followed by employees of their Office in their contacts with professional lobbyists/lobbying firms or entities carrying out professional lobbying operations without their being entered in the Register, including the procedure for documenting such contacts. Article 17 In cases where it has been found that the professional lobbying operations are carried out by the entity that has not been entered in the Register, the Public Authority concerned shall forthwith inform in writing the Minister having jurisdiction over matters related to public administration thereof. Article 18 1. Once a year by the end of February, the Manager of the Office of the Public Authority concerned shall draw up a report on measures taken in relation to their organisation during the previous year by professional lobbyists/lobbying firms. 2. The report referred to in paragraph 1 shall contain the following: (1) A list and description of cases in which lobbying was being undertaken; (2) A list of professional lobbyists/lobbying firms involved; (3) A list and description of the forms in which lobbying was being conducted, indicating whether it was undertaken in support or against the project(s) concerned; (4) A description of the influence exerted by the successful professional lobbyist/lobbying firm on the legislative or regulatory decision-making process(s) involved. 3. The report referred to in paragraph 1 shall be forthwith published in the Bulletin.

Chapter 5 Sanctions for the Violation of the Act Article 19 1. Whoever carries out professional lobbying operations without their being entered in the Register shall be liable to a penalty of a fine from PLN 3000 to 50,000. 2. The fine referred to in paragraph 1 shall be applied pursuant to an administrative decision of the Minister having jurisdiction over matters related to public administration. 3. In determining the amount of a fine to be applied, regard shall be had to the degree of the influence exerted by the entity referred to in paragraph 1 on the legislative or regulatory decision-making process concerned and to the extent and character of the professional lobbying operations involved. 4. The fine may be applied repeatedly if the professional lobbying operations are continued without the guilty party being entered in the Register. Article 20 1. The money collected from the fines referred to in Article 19 shall constitute revenue of the State. 2. The fine applied shall be paid within 14 days from the date on which the relevant decision by the Minster having jurisdiction over matters related to public administration become final, via the transfer of the appropriate amount to a bank account kept for their Office. 3. The cost involved in the payment of the fine shall be borne by the Payer.

Chapter 6

67

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Amendments to some existing provisions and transitional and final provisions Article 21 The Act of 9 May 1996 on carrying out the mandate of a Deputy to the Sejm or of a Senator4 is hereby amended as follows: (1) In Article 18, the following paragraphs 3a and 3b shall be added: “3a. The President of the Caucus or of the Group concerned shall forward to the Marshal of the Sejm or of the Senate, as appropriate, the following information on employees of the Office of their Club or Group and any volunteer(s) involved: (1) The first name(s) and last name of the individual concerned; (2) Their date of birth; (3) Their place of employment throughout the three years proceeding the date of commencement of their paid or voluntary service for the Caucus or the Group concerned; (4) Their source(s) of income throughout the three years proceeding the date of commencement of their paid or voluntary service for the Caucus or the Group concerned; (5) The economic activity/activities pursued during the three years proceeding the date of commencement of their paid or voluntary service for the Caucus or the Group concerned. 3b. The information referred to in paragraph 3a shall be public and be made so by the Marshal of the Sejm or of the Senate, as appropriate, in an electronic form.”; (2) In Article 23, the following paragraphs 4a and 4b shall be added: “4a. The Deputy to the Sejm or the Senator concerned shall forward to the Marshal of the Sejm or of the Senate, as appropriate, the following information on the employees of their Office and any volunteer(s) involved: (1) The first name(s) and last name of the individual concerned; (2) Their date of birth; (3) Their place(s) of employment throughout the three years proceeding the date of commencement of their paid or voluntary service for the Office concerned; (4) Their source(s) of income throughout the three years proceeding the date of commencement of their paid or voluntary service for the Office concerned; (5) The economic activity/activities pursued during the three years proceeding the date of commencement of their paid or voluntary service for the Office concerned. 4b. The information referred to in paragraph 4a shall be public and be made so by the Marshal of the Sejm or of the Senate, as appropriate, in an electronic form.”. Article 22 The following Article 39a shall be inserted in the Act of 8 August 1996 on the Council of Ministers: “Article 39a 1. As for those employed within the Political Cabinet of the Minister, the latter shall forward to the President of the Council of Ministers the information containing the following: (1) The first name(s) and last name of the individual concerned; (2) Their date of birth; (3) Their place(s) of employment throughout the three years proceeding the date of their commencing their service for the Political Cabinet concerned; (4) Their source(s) of income throughout the three years proceeding the date of their commencing their service for the Political Cabinet concerned; (5) The economic activity/activities pursued during the three years proceeding the date of their commencing their service for the Political Cabinet concerned.

68

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

2. The information referred to in paragraph 1 shall be published in the Bulletin.”

69

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Annex 2: Draft Model Legislation: Disclosure of Assets Purpose Article 1. This law, regulating article [...] of the national constitution/political constitution of the state1/pursuant to article III of the Inter-American Convention against Corruption, establishes the system of declarations of interests, income, assets and liabilities of persons performing public functions, for the following purposes: (a) To detect and prevent conflicts of interests; (b) To detect and verify significant and unjustified changes in assets of obligated persons and to initiate the corresponding administrative and criminal procedures established by law. Terms used Article 2. For purposes of this law: (a) “Public function” means any temporary or permanent, paid or honorary activity, performed by a natural person in the name of the State or in the service of the State or its institutions, at any level of its hierarchy. (b) “Public official”, “government official”, or “public servant” means any official or employee of the State or its agencies, including those who have been selected, appointed, or elected to perform activities or functions in the name of the State or in the service of the State, at any level of its hierarchy. (c) “Property” means assets of any kind, whether real or personal, tangible or intangible, and any document or legal instrument demonstrating, purporting to demonstrate, or relating to ownership or other rights pertaining to such assets. (d) “Obligated person” means any person required by article 3 of this law to present a declaration of interests, income, assets and liabilities. (e) “Family group” means the spouse, partner, minor or dependent children and persons under the guardianship or custody of the obligated person. Obligated persons Article 3. Persons who perform the functions detailed below are considered obligated persons under this law.

70

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. For those states where the political constitution requires public officials to declare their interests, income, assets and liabilities. (a) President and Vice President of the Nation (Head of Government, Deputy Head of Government). (b) Chief of staff of Ministers, Ministers, Secretaries and Undersecretaries of the Executive Branch. (c) Members of the diplomatic corps at and above the rank of [...]. (d) Rectors, deans, secretaries, employees of public universities at and above the rank of [...]. (e) Directors and senior officials of State corporations and corporations in which the State has an equity interest (f) Officials and employees of the public administration at and above the rank of [...]. (g) Officials and employees with responsibilities for granting administrative authorizations or exercising the police power at and above the rank of [...] (h) Officials and employees responsible for public procurement and contracting at and above the rank of [...] (i) Officials and employees of tax collection offices at and above the rank of [...]. (j) Officials and employees of the customs administration at and above the rank of [...]. (k) Officials and employees of the armed forces and security services at and above the rank of [...]. (l) Legislators [National Senators and Deputies]. (m) Officials and employees of the legislative branch at and above the rank of [...]. (n) Magistrates or judges, court secretaries. (o) Officials and employees of the judicial branch at and above the rank of [...]. (p) Members of bodies for the selection and trial of magistrates, up to the rank of [...]. (q) Officials and employees of the Attorney General's office at and above the rank of [...]. (r) Officials and employees of the office of the Public Defender and/or Ombudsman at and above the rank of [...].

71

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(s) Officials and employees of internal and external control bodies, regulatory bodies and supervisory authorities at and above the rank of [...] (t) Officials and employees of the Central Bank exercising monetary authority of the Nation at and above the rank of [...] (u) Officials and employees of the official system of banks and financial institutions at and above the rank of [...] (v) Officials and employees of agencies or entities with responsibilities for administering a public or private property for the State or for controlling or auditing public revenues of whatever nature.. (w) Persons who provide regular advisory services to obligated persons, permanently or temporarily, under any occupational arrangements. The competent authority may establish general criteria of application to determine the scope of the categories established in this article. Occasion for the presentation of declarations Article 4. Obligated persons shall present their declaration of interests, income, assets and liabilities on the following occasions: (a) Upon commencement: within 30 days after appointment. (b) Updating:, annually, on the date determined by the competent authority. (c) Upon conclusion: within 30 days of concluding the performance of public functions. Contents of the declaration Article 5. The declaration of interests, income, assets and liabilities must contain, as a minimum, the following information: (a) Full details on the obligated person, indicating that person's identity document, taxation and/or labor documentation and civil status, occupation and function performed, and the state body or state-owned corporation in which that function is performed. (b) The date and place for presentation of the declaration of interests, income, assets and liabilities. (c) Detailed information on the persons who make up the family group, indicating their identity document, taxation and/or labor documentation, if any, and civil status. In each case, it must specify their occupation or activity.

72

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(d) Details of real property of any kind, located within the country or abroad, held in ownership, co-ownership, community of property, fiduciary property, any other form of ownership or lease, and significant improvements that have been made to such property. The form must indicate the address, location, registration identification, percentage, liens, date of acquisition, value paid at that date, and source of funds used for each acquisition made subsequent to appointment. (e) Detail of registered personal property of any kind, located within the country or abroad, held in ownership, co-ownership, community of property, and any other form of ownership. The form must record their type, trademark, model, year of manufacture, and identification numbers; registration data, date of acquisition, value paid at that date, and the origin of the funds used for each purchase made subsequent to appointment. (f) Details of other personal property, where the market purchase value exceeds [...]. The record must show the date of purchase, the value and currency paid at that date, and the origin of the funds used for each purchase made subsequent to appointment. (g) Details on capital invested in securities, shares and other instruments, whether or not tradable in the country or abroad. The form must indicate the security or instrument representing the value, its registration number, the date of issuance, the issuer, and the quantity, determined or capable of determination, which it represents in legal currency on the date of the declaration; the date of acquisition, the value paid on that date, and the source of the funds used at each acquisition that takes place subsequent to the appointment. (h) Details of rights in communal, personal or corporate undertakings, constituted in the country or abroad, either in administration or in capital. The form must identify the name, corporate purpose, tax identification of the company, percentage and nature of rights of the obligated person, and identification of any related natural or legal person through which the interest is held. It must also indicate the date of acquisition of each right, the value paid at that date, and the origin of the funds used for each acquisition made subsequent to the appointment of the obligated person.

73

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(i) Details of participation on boards of directors, administrative and supervisory boards, advisory boards, or any collegial board, whether remunerated or honorary. (j) Indication of the balance of accounts and other financial products in banks or other financial institutions, national or foreign, and cash holdings in national or foreign currency. It must indicate the name of the bank or financial institution in question. (k) Listing of mortgages, pledges or common loans and debts, indicating their component obligations and the type of obligation, the debtor or creditor and the amount owed. (l) Annual income derived from the position for which the declaration is made as well as from other activities, work in a relationship of dependency or the exercise of independent or professional activities. (m) Annual income and outlays related to pensions and social security systems. (n) Identification of any public posts or positions held by the obligated person, paid or honorary, as director, employee, consultant or representative of any commercial or nonprofit undertaking, specifying the organization contracting the official. In the case of a declaration upon commencement, the information must cover the two years immediately preceding the declaration. In the case of updates, the information shall cover the year prior to the declaration. (o) Identification and brief description of the gifts, including travel and other activities that are used instantly, received as a product of or as a result of the position, the approximate value of which exceeds the equivalent of [$...] (p) Express declaration that the data and background provided are truthful and accurate. (q) Express declaration that no relevant properties or data have been omitted. Article 6. Subsections d) to n) of the preceding article must include information relating to the family group of the obligated person. Procedures for presenting the declaration Article 7. The competent authority shall make available to obligated persons the electronic means for completing the declaration of interests, income, assets and

74

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

liabilities and the remote means of electronic communication for submitting it together with secure electronic identification of the obligated person. Article 8. Obligated persons shall use a confidential annex, which the competent authority must supply, to provide the information that allows location of the property or properties declared in subsection (d) of article 5 and the numbers of the current accounts, savings accounts, safety deposit boxes and credit cards declared pursuant to subsections (j) and (k) of article 6. Article 9. In no case may declarations of interests, income, assets and liabilities be submitted in handwritten form. Article 10. Presentation of the declaration of interests, income, assets and liabilities may be submitted in printed form only when the technological means available within the territorial jurisdiction in which the obligated person performs his or her duties do not permit otherwise. Article 11. The declarations of interests, income, assets and liabilities shall have evidentiary value when they have been duly issued by the competent authority. COMPETENT AUTHORITIES Article 12. The competent authority shall enjoy functional and budgetary independence and shall establish procedures for contracting its personnel so as to guarantee, in particular, their suitability for performing its functions. Article 13. The competent authority shall have the following obligations: (a) To determine the universe of obligated persons under its sphere of competence, for which purpose it must create a database, to be kept permanently updated. The database must be designed so as to permit periodic incorporation of at least the following information: 4. With due regard to their constitutional structure, the members of MESICIC have adopted two different models with respect to the authorities competent for administering declarations of interests, income, assets and liabilities. In general, countries that have an independent body with constitutionally established powers to oversee public officials in all branches of government have appointed that body as the competent authority for analyzing and verifying the DIALs. On the other hand, countries where the internal control system is organized through cross control among branches – usually between the executive and the

75

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

legislative branches – have appointed a competent authority within each branch to analyze and verify the DIIALs. The members of MESICIC also vary with respect to the authorities responsible for receiving the DIIALs. In some countries, these are submitted directly to the authorities who also conduct verification. In other countries, reception of the DIIALs has been decentralized to bodies within each public agency responsible for human resources or personnel administration. In light of these differences and the impossibility of capturing them all in the model Law, the model has confined itself to using the term "competent authorities" to refer to the different functions that these authorities must fulfill. 1. Appointment and contracting of obligated persons within its sphere of competence. 2. Appointments and concluded contracts. 3. Transfers from one public function to another. 4. Creation of new positions or functions with ranks or hierarchies included within the categories of obligated persons established by article 3. 5. Deletion of positions or functions with ranks or hierarchies included within the categories of obligated persons established by article 3. (b) To receive declarations of interests, income, assets and liabilities. In the of declarations presented in printed format, pursuant to Article 10, to ensure as well that they are complete (c) To establish consultation mechanisms via electronic means or telephone, whereby obligated persons may clarify any doubts as to their obligations under this law. (d) To determine, within 15 days after the deadline for presenting a declaration of interests, income, assets and liabilities, the universe of obligated persons who are in default of that obligation, to issue warnings to those persons to comply, and to advise the competent authorities of the universe of persons in default for purposes of chapter VIII. (e) To determine annually the criteria for selecting the universe of obligated persons who will be subjected to verification and review. Those criteria shall be objective and guided by the standards of impartiality, and any changes must be explained in the annual report stipulated in subsection (k) of this article.

76

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(f) To design and carry out plans to publicize and promote the objectives and purposes of the obligations created by this law, both among the obligated persons and among the general public. (g) To conduct the verification and review procedures stipulated in chapters IV and V of this law. (h) To establish cooperation agreements with public or private entities that administer public information for the purpose of facilitating unrestricted and immediate access to all information of a public nature. In the case of automated databases, the agreement shall establish the means necessary for the competent authority to gain remote access to databases. (i) To establish cooperation agreements with public entities that administer privileged [banking or taxation] information for the purpose of facilitating access to specific information required for conducting concrete verifications of obligated persons. When this is not possible, entities that administer privileged information must find the means necessary to carry out, within a period not to exceed [...] days, consultations by the competent authorities to confirm the truthfulness of the information contained in the declarations of interests, income, assets and liabilities. (j) To create and keep updated the public registry of declarations of interests, income, assets and liabilities, in accordance with the specifications of Chapter VI of this law. (k) To present an annual activities report to the national Congress, which reports shall be public and accessible electronically. (l) To regulate, within the limits of its competence, the scope of application of this law. VERIFICATION PROCEDURES Article 14. Verification procedures shall be intended to determine, in a preliminary way, any significant and unjustified changes in the assets of the obligated person and/or his or her family group. Consequently, they shall determine: (a) The truthfulness of the information declared by the obligated person. (b) The origin of the properties incorporated into the assets of the obligated person and his or her family group in the period of analysis of the verification.

77

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(c) Whether the change in the assets of the obligated person and his or her family group, in relation to the most recent declaration of interests, income, assets and liabilities, is consistent with their legitimate incomes. Article 15. In addition to those based on the comparison between declarations of interests, income, assets and liabilities corresponding to different periods, verification procedures may be initiated upon complaints from private individuals or ex officio, based on public information. Article 16. The competent authority may request reports, documents, background and any other element it deems necessary from any public agency [national, provincial or municipal] and from any natural or legal person, public or private, all of which are obliged to provide such elements within the time limit established by the competent authority, under penalty of law.. Article 17. The procedure may include the verification of undeclared properties which the competent authority has sufficient grounds to believe are under the de facto control of the obligated person. For this purpose, it may investigate the origin of the assets with which their owners have effected the acquisition. Article 18. When the verification procedure provides indications sufficient: (a) To raise doubts about the legitimate origin of the change in the assets of the obligated person or his or her family group; or (b) To presume that there are undeclared properties under the control of the obligated person or his or her family group; The competent authority may summon the obligated person to provide such explanations as it deems pertinent and such evidence as it deems necessary to substantiate those explanations. Article 19. The competent authority shall verify the explanations given by the obligated person and, if they are not satisfactory, or when the obligated person has opted not to provide them, the competent authority shall initiate the appropriate criminal or administrative actions.. PROCEDURE FOR REVIEWING CONFLICTS OF INTEREST Article 20. The purpose of the procedure for reviewing conflicts of interest shall be to determine if the interests declared by the obligated person are compatible with

78

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

the exercise of his or her functions, in accordance with the rules governing conflict of interest, incompatibilities, disqualifications or other duties established by law. Article 21. When the review of the declarations of interests, income, assets and liabilities provides indications of a potential or actual conflict of interest, or of actual

or

potential

violations

of

the

rules

governing

incompatibilities,

disqualifications, or other legal or regulatory duties established for the fulfillment of public functions, the competent authority shall notify the obligated person and the agency in which that person performs his or her functions, advising them of its opinion and the steps to be taken in accordance with the respective legislation in order to prevent a potential conflict or to terminate an actual conflict. PUBLIC REGISTRY OF DECLARATIONS OF INTERESTS, INCOME, ASSETS AND LIABILITIES Article 22. The competent authority shall create a public registry of declarations of interests, income, assets and liabilities, which shall allow unrestricted access for any person to the following information: (a) List of obligated persons covered by article 3, indicating those who have fulfilled their obligation on time, those who have had to be issued summonses to comply pursuant to article 13 (d) and those who have not complied with their obligation. (b) Income, asset and liability declaration forms presented on each occasion, within 15 days of their presentation, with the exception of the confidential annexes referred to in article 8. (c) List of obligated persons subjected to disciplinary, administrative or criminal penalties, with an indication of the penalty applied. (d) List of obligated persons whose review procedure has concluded with the adoption of measures to avoid or terminate a conflict of interest under the terms of article 21, with indication of the measures adopted. Article 23. The competent authority shall guarantee free access for all persons to the information contained in the public registry referred to in the previous article, which may be consulted in person or by remote electronic communication means.

79

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Article 24. The person accessing a declaration of interests, income, assets and liabilities may not use it for: (a) Any illegal purpose. (b) Any commercial purpose, except by the communications and news media for the information of the general public. (c) To determine or establish the credit rating of any individual. (d) To solicit, directly or indirectly, money for political, charitable or other purposes. Any prohibited use of a declaration of interests, income, assets and liabilities shall be punishable by a fine of [...] to [...], without prejudice to civil or criminal liability for unlawful use. Article 25. The competent authorities shall ensure broad publicity for the prohibited uses of declarations of interests, income, assets and liabilities and for the penalties provided for such cases. The competent authority shall not be held responsible for any improper use of declarations of interests, income, assets and liabilities on the part of third parties. CUSTODY, PRESERVATION AND SECURITY Article 26. Declarations of interests, income, assets and liabilities must be kept for a term of [...] years after the obligated person has concluded his or her functions. If the obligated person or members of his or her family group are facing criminal or administrative charges for having participated in acts against the administration or the public interest, the declarations of interests, income, assets and liabilities shall be kept until all proceedings related to those acts are concluded or for the maximum statutory limitation for the most serious offense against the public administration, whichever is greater. Article 27. Declarations of interests, income, assets and liabilities submitted in printed format shall be indexed in an electronic index that will allow them to be physically located and the declarer to be identified. Article 28. The competent authority shall be responsible for the conditions of archiving, security and maintenance of declarations of interests, income, assets and liabilities. PENALTIES Administrative penalties

80

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Article 29. Obligated persons who have not filed their declaration of interests, income, assets and liabilities by the end of the period stipulated for any of the occasions covered by article 4, shall be issued a summons pursuant to article 13 (d). That summons shall remain on the dossier of the official, unless that person has violated other legal provisions. Article 30. Obligated persons who, having received a summons pursuant to article 13 (d), fail to present the declaration of interests, income, assets and liabilities within the time limit indicated in the summons, shall be punished with a fine not to exceed [...] and suspension from the performance of public functions for a period not to exceed [...] months, in accordance with existing disciplinary procedures if any. Article 31. Obligated persons who enter false data in their declaration of interests, income, assets and liabilities, on any of the occasions covered by article 4, shall be punished with a fine not to exceed [...] and suspension from exercising public function for a period not to exceed [...] months, in accordance with existing disciplinary procedures. The administrative penalty shall be applied independent of any applicable criminal penalties. Article 32. Repeated failures on more than [...] opportunities to present the declaration interests, income, assets and liabilities, within the time limit indicated in the summons issued for any of the occasions indicated in article 4 shall be grounds for dismissal, when such penalty is applicable in accordance with existing disciplinary procedures. Article 33. The punishable conduct defined in articles 30, 31 and 32 is deemed committed when, after due notification of summons, the obligated person has not fulfilled the duties in question within the time limits fixed by the competent authority. Article 34. Authorities who, by failing to fulfill any legal obligation or duty, have slowed, obstructed or impeded fulfillment of the obligations of the competent authority shall be punished by a fine of no less than [...] and not to exceed [...]. Article 35. Officials and employees of the competent authority who fail to fulfill the obligations imposed by this law shall be punished by a fine not to exceed [...]. Criminal penalties Article 36. Article [...] of the criminal code is amended as follows:

81

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

“Any person who by reason of his or her position is obliged by law to submit a declaration of interests, income, assets and liabilities and who fails to do so or who falsifies or omits data which such declarations must contain in accordance with applicable laws and regulations shall be punished by imprisonment of [...] days to [...] years and special perpetual disqualification.” FINAL PROVISIONS Federal clause Article 37. The competent authority shall see to arrangements whereby the federal states adopt systems of declarations of interests, income, assets and liabilities that do not differ essentially from those established in this law and those needed for the competent authorities to access the necessary information during verification and review procedures172.

Department of Legal Cooperation 2011. Text of the Draft Model Law on the Declaration of Interests, Income, Assets and Liabilities of Persons performing Public Functions. Organization of American States.

172

Department of Legal Cooperation 2011. Text of the Draft Model Law on the Declaration of Interests, Income, Assets and Liabilities of Persons performing Public Functions. Organization of American States.

82

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Annex 3: UN Draft Corruption Legislation Chapter I: General provisions Article 1. Statement of purpose The purposes of this Convention are: (a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; (b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; (c) To promote integrity, accountability and proper management of public affairs and public property. Article 2. Use of terms For the purposes of this Convention: (a) “Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, “public official” may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; “Foreign public official” shall mean any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected; and any person exercising a public function for a foreign country, including for a public agency or public enterprise; (c) “Official of a public international organization” shall mean an international civil servant or any person who is authorized by such an organization to act on behalf of that organization; (d) “Property” shall mean assets of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets; (e) “Proceeds of crime” shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence;

83

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(f) “Freezing” or “seizure” shall mean temporarily prohibiting the transfer, onversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority; (g) “Confiscation”, which includes forfeiture where applicable, shall mean the permanent deprivation of property by order of a court or other competent authority; (h) “Predicate offence” shall mean any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in article 23 of this Convention; (i) “Controlled delivery” shall mean the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence. Article 3. Scope of application 1. This Convention shall apply, in accordance with its terms, to the prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of the proceeds of offences established in accordance with this Convention. Article 4. Protection of sovereignty 1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States. 2. Nothing in this Convention shall entitle a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law. Chapter II Preventive measures Article 5. Preventive anti-corruption policies and practices 1. Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability. 2. Each State Party shall endeavour to establish and promote effective practices aimed at the prevention of corruption. 3. Each State Party shall endeavour to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy to prevent and fight corruption. 4. States Parties shall, as appropriate and in accordance with the fundamental principles of their legal system, collaborate with each other and with relevant

84

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

international and regional organizations in promoting and developing the measures referred to in this article. That collaboration may include participation in international programmes and projects aimed at the prevention of corruption. Article 6. Preventive anti-corruption body or bodies 1. Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as: (a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies; (b) Increasing and disseminating knowledge about the prevention of corruption. 2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided. 3. Each State Party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other States Parties in developing and implementing specific measures for the prevention of corruption. Article 7. Public sector 1. Each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, endeavour to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials: (a) That are based on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude; (b) That include adequate procedures for the selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation, where appropriate, of such individuals to other positions; (c) That promote adequate remuneration and equitable pay scales, taking into account the level of economic development of the State Party; (d) That promote education and training programmes to enable them to meet the requirements for the correct, honourable and proper performance of public functions and that provide them with specialized and appropriate training to enhance their awareness of the risks of corruption inherent in the performance of their functions. Such programmes may make reference to codes or standards of conduct in applicable areas. 2. Each State Party shall also consider adopting appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to prescribe criteria concerning candidature for and election to public office.

85

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

3. Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties. 4. Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest. Article 8. Codes of conduct for public officials 1. In order to fight corruption, each State Party shall promote, inter alia, integrity, honesty and responsibility among its public officials, in accordance with the fundamental principles of its legal system. 2. In particular, each State Party shall endeavour to apply, within its own institutional and legal systems, codes or standards of conduct for the correct, honourable and proper performance of public functions. 3. For the purposes of implementing the provisions of this article, each State Party shall, where appropriate and in accordance with the fundamental principles of its legal system, take note of the relevant initiatives of regional, inter-regional and multilateral organizations, such as the International Code of Conduct for Public Officials contained in the annex to General Assembly resolution 51/59 of 12 December 1996. 4. Each State Party shall also consider, in accordance with the fundamental principles of its domestic law, establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions. 5. Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. 6. Each State Party shall consider taking, in accordance with the fundamental principles of its domestic law, disciplinary or other measures against public officials who violate the codes or standards established in accordance with this article. Article 9. Public procurement and management of public finances 1. Each State Party shall, in accordance with the fundamental principles of its legal system, take the necessary steps to establish appropriate systems of procurement, based on transparency, competition and objective criteria in decision-making, that are effective, inter alia, in preventing corruption. Such systems, which may take into account appropriate threshold values in their application, shall address, inter alia: (a) The public distribution of information relating to procurement procedures and contracts, including information on invitations to tender and relevant or pertinent information on the award of contracts, allowing potential

86

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

tenderers sufficient time to prepare and submit their tenders; (b) The establishment, in advance, of conditions for participation, including selection and award criteria and tendering rules, and their publication; (c) The use of objective and predetermined criteria for public procurement decisions, in order to facilitate the subsequent verification of the correct application of the rules or procedures; (d) An effective system of domestic review, including an effective system of appeal, to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed; (e) Where appropriate, measures to regulate matters regarding personnel responsible for procurement, such as declaration of interest in particular public procurements, screening procedures and training requirements. 2. Each State Party shall, in accordance with the fundamental principles of its legal system, take appropriate measures to promote transparency and accountability in the management of public finances. Such measures shall encompass, inter alia: (a) Procedures for the adoption of the national budget; (b) A system of accounting and auditing standards and related oversight; (c) Effective and efficient systems of risk management and internal control; and (d) Where appropriate, corrective action in the case of failure to comply with the requirements established in this paragraph. 3. Each State Party shall take such civil and administrative measures as may be necessary, in accordance with the fundamental principles of its domestic law, to preserve the integrity of accounting books, records, financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents. Article 10. Public reporting Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decisionmaking processes, where appropriate. Such measures may include, inter alia: (a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public; (b) Simplifying administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and (c) Publishing information, which may include periodic reports on the risks of corruption in its public administration. Article 11. Measures relating to the judiciary and prosecution services

87

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Bearing in mind the independence of the judiciary and its crucial role in combating corruption, each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary. Article 12. Private sector 1. Each State Party shall take measures, in accordance with the fundamental principles of its domestic law, to prevent corruption involving the private sector, enhance accounting and auditing standards in the private sector and, where appropriate, provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures. 2. Measures to achieve these ends may include, inter alia: (a) Promoting cooperation between law enforcement agencies and relevant private entities; (b) Promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honourable and proper performance of the activities of business and all relevant professions and the prevention of conflicts of interest, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses with the State; (c) Promoting transparency among private entities, including, where appropriate, measures regarding the identity of legal and natural persons involved in the establishment and management of corporate entities; (d) Preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities; (e) Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure; (f) Ensuring that private enterprises, taking into account their structure and size, have sufficient internal auditing controls to assist in preventing and detecting acts of corruption and that the accounts and required financial statements of such private enterprises are subject to appropriate auditing and certification procedures. 3. Additional measures as may be necessary, in accordance with its domestic laws and regulations regarding the maintenance of books and records, financial statement disclosures and accounting and auditing standards, to prohibit the following acts carried out for the purpose of committing any of the offences established in accordance with this Convention: (a) The establishment of off-the-books accounts;

88

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(b) The making of off-the-books or inadequately identified transactions; (c) The recording of non-existent expenditure; (d) The entry of liabilities with incorrect identification of their objects; (e) The use of false documents; and (f) The intentional destruction of bookkeeping documents earlier than foreseen by the law. 4. Each State Party shall disallow the tax deductibility of expenses that constitute bribes, the latter being one of the constituent elements of the offences established in accordance with articles 15 and 16 of this Convention and, where appropriate, other expenses incurred in furtherance of corrupt conduct. Article 13. Participation of society 1. Each State Party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. This participation should be strengthened by such measures as: (a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes; (b) Ensuring that the public has effective access to information; (c) Undertaking public information activities that contribute to non-tolerance of corruption, as well as public education programmes, including school and university curricula; (d) Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption. That freedom may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary: (i) For respect of the rights or reputations of others; (ii) For the protection of national security or order or of public health or morals. 2. Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies, where appropriate, for the reporting, including anonymously, of any incidents that may be considered to constitute an offence established in accordance with this Convention. Article 14. Measures to prevent money-laundering 1. Each State Party shall: (a) Institute a comprehensive domestic regulatory and supervisory regime for banks and non-bank financial institutions, including natural or legal persons that provide formal or informal services for the transmission of money or value and, where appropriate, other bodies particularly susceptible to money-

89

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

laundering, within its competence, in order to deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer and, where appropriate, beneficial owner identification, recordkeeping and the reporting of suspicious transactions; (b) Without prejudice to article 46 of this Convention, ensure that administrative, regulatory, law enforcement and other authorities dedicated to combating money-laundering (including, where appropriate under domestic law, judicial authorities) have the ability to cooperate and exchange information at the national and international levels within the conditions prescribed by its domestic law and, to that end, shall consider the establishment of a financial intelligence unit to serve as a national centre for the collection, analysis and dissemination of information regarding potential money-laundering. 2. States Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-border transfer of substantial quantities of cash and appropriate negotiable instruments. 3. States Parties shall consider implementing appropriate and feasible measures to require financial institutions, including money remitters: (a) To include on forms for the electronic transfer of funds and related messages accurate and meaningful information on the originator; (b) To apply enhanced scrutiny to transfers of funds that do not contain complete information on the originator. 4. In establishing a domestic regulatory and supervisory regime under the terms of this article, and without prejudice to any other article of this Convention, States Parties are called upon to use as a guideline the relevant initiatives of regional, interregional and multilateral organizations against money-laundering. 5. States Parties shall endeavour to develop and promote global, regional, Subregional and bilateral cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money-laundering. Chapter IIICriminalization and law enforcement Article 15. Bribery of national public officials Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties; (b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person

90

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

or entity, in order that the official act or refrain from acting in the exercise of his or her official duties. Article 16. Bribery of foreign public officials and officials of public international organizations Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the promise, offering or giving to a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business. Article 17. Embezzlement, misappropriation or other diversion of property by a public official Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally, the embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position. Article 18. Trading in influence Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person; (b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage. Article 19. Abuse of functions Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her

91

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity. Article 20. Illicit enrichment Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income. Article 21. Bribery in the private sector Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally in the course of economic, financial or commercial activities: (a) The promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting; (b) The solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting. Article 22. Embezzlement of property in the private sector Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally in the course of economic, financial or commercial activities, embezzlement by a person who directs or works, in any capacity, in a private sector entity of any property, private funds or securities or any other thing of value entrusted to him or her by virtue of his or her position. Article 23. Laundering of proceeds of crime 1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) (i) The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action;

92

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(ii) The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime; (b) Subject to the basic concepts of its legal system: (i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime; (ii) Participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article. 2. For purposes of implementing or applying paragraph 1 of this article: (a) Each State Party shall seek to apply paragraph 1 of this article to the widest range of predicate offences; (b) Each State Party shall include as predicate offences at a minimum a comprehensive range of criminal offences established in accordance with this Convention; (c) For the purposes of subparagraph (b) above, predicate offences shall include offences committed both within and outside the jurisdiction of the tate Party in question. However, offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this article had it been committed there; (d) Each State Party shall furnish copies of its laws that give effect to this article and of any subsequent changes to such laws or a description thereof to the Secretary-General of the United Nations; (e) If required by fundamental principles of the domestic law of a State Party, it may be provided that the offences set forth in paragraph 1 of this article do not apply to the persons who committed the predicate offence. Article 24. Concealment Without prejudice to the provisions of article 23 of this Convention, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally after the commission of any of the offences established in accordance with this Convention without having participated in such offences, the concealment or continued retention of property when the person involved knows that such property is the result of any of the offences established in accordance with this Convention. (a) The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences established in accordance with this Convention;

93

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(b) The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences established in accordance with this Convention. Nothing in this subparagraph shall prejudice the right of States Parties to have legislation that protects other categories of public official. Article 26. Liability of legal persons 1. Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention. 2. Subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil or administrative. 3. Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences. 4. Each State Party shall, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions. Article 27. Participation and attempt 1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, in accordance with its domestic law, participation in any capacity such as an accomplice, assistant or instigator in an offence established in accordance with this Convention. 2. Each State Party may adopt such legislative and other measures as may be necessary to establish as a criminal offence, in accordance with its domestic law, any attempt to commit an offence established in accordance with this Convention. 3. Each State Party may adopt such legislative and other measures as may be necessary to establish as a criminal offence, in accordance with its domestic law, the preparation for an offence established in accordance with this Convention. Article 28. Knowledge, intent and purpose as elements of an offence Knowledge, intent or purpose required as an element of an offence established in accordance with this Convention may be inferred from objective factual circumstances. Article 29. Statute of limitations Each State Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offence established in accordance with this Convention and establish a longer statute of limitations period or provide for the suspension of the statute of limitations where the alleged offender has evaded the administration of justice. Article 30. Prosecution, adjudication and sanctions

94

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. Each State Party shall make the commission of an offence established in accordance with this Convention liable to sanctions that take into account the gravity of that offence. 2. Each State Party shall take such measures as may be necessary to establish or maintain, in accordance with its legal system and constitutional principles, an appropriate balance between any immunities or jurisdictional privileges accorded to its public officials for the performance of their functions and the possibility, when necessary, of effectively investigating, prosecuting and adjudicating offences established in accordance with this Convention. 3. Each State Party shall endeavour to ensure that any discretionary legal powers under its domestic law relating to the prosecution of persons for offences established in accordance with this Convention are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. 4. In the case of offences established in accordance with this Convention, each State Party shall take appropriate measures, in accordance with its domestic law and with due regard to the rights of the defence, to seek to ensure that conditions imposed in connection with decisions on release pending trial or appeal take into consideration the need to ensure the presence of the defendant at subsequent criminal proceedings. 5. Each State Party shall take into account the gravity of the offences concerned when considering the eventuality of early release or parole of persons convicted of such offences. 6. Each State Party, to the extent consistent with the fundamental principles of its legal system, shall consider establishing procedures through which a public official accused of an offence established in accordance with this Convention may, where appropriate, be removed, suspended or reassigned by the appropriate authority, bearing in mind respect for the principle of the presumption of innocence. 7. Where warranted by the gravity of the offence, each State Party, to the extent consistent with the fundamental principles of its legal system, shall consider establishing procedures for the disqualification, by court order or any other appropriate means, for a period of time determined by its domestic law, of persons convicted of offences established in accordance with this Convention from: (a) Holding public office; and (b) Holding office in an enterprise owned in whole or in part by the State. 8. Paragraph 1 of this article shall be without prejudice to the exercise of disciplinary powers by the competent authorities against civil servants. 9. Nothing contained in this Convention shall affect the principle that the description of the offences established in accordance with this Convention and of the applicable legal defences or other legal principles controlling the lawfulness of conduct is reserved to the domestic law of a State Party and that such offences shall be prosecuted and punished in accordance with that law. States Parties shall endeavour to promote the reintegration into society of persons convicted of offences established in accordance with this Convention. Article 31. Freezing, seizure and confiscation

95

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. Each State Party shall take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation of: (a) Proceeds of crime derived from offences established in accordance with this Convention or property the value of which corresponds to that of such proceeds; (b) Property, equipment or other instrumentalities used in or destined for use in offences established in accordance with this Convention. 2. Each State Party shall take such measures as may be necessary to enable the identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this article for the purpose of eventual confiscation. 3. Each State Party shall adopt, in accordance with its domestic law, such legislative and other measures as may be necessary to regulate the administration by the competent authorities of frozen, seized or confiscated property covered in paragraphs 1 and 2 of this article. 4. If such proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this article instead of the proceeds. 5. If such proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds. 6. Income or other benefits derived from such proceeds of crime, from property into which such proceeds of crime have been transformed or converted or from property with which such proceeds of crime have been intermingled shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds of crime. 7. States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the fundamental principles of their domestic law and with the nature of judicial and other proceedings. 8. The provisions of this article shall not be so construed as to prejudice the rights of bona fide third parties. 9. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a State Party. Article 32. Protection of witnesses, experts and victims 1. Each State Party shall take appropriate measures in accordance with its domestic legal system and within its means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with this Convention and, as appropriate, for their relatives and other persons close to them. 2. The measures envisaged in paragraph 1 of this article may include, inter alia, without prejudice to the rights of the defendant, including the right to due process: (a) Establishing procedures for the physical protection of such persons,

96

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons; (b) Providing evidentiary rules to permit witnesses and experts to give testimony in a manner that ensures the safety of such persons, such as permitting testimony to be given through the use of communications technology such as video or other adequate means. 3. States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this article. 4. Each State Party shall, subject to its domestic law, enable the views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings against offenders in a manner not prejudicial to the rights of the defence. Article 33. Protection of reporting persons Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention. Article 34. Consequences of acts of corruption With due regard to the rights of third parties acquired in good faith, each State Party shall take measures, in accordance with the fundamental principles of its domestic law, to address consequences of corruption. In this context, States Parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action. Article 35. Compensation for damage Each State Party shall take such measures as may be necessary, in accordance with principles of its domestic law, to ensure that entities or persons who have suffered damage as a result of an act of corruption have the right to initiate legal proceedings against those responsible for that damage in order to obtain compensation. Article 36. Specialized authorities Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such

97

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

body or bodies should have the appropriate training and resources to carry out their tasks. Article 37: Information 1. Each State Party shall take appropriate measures to encourage persons who participate or who have participated in the commission of an offence established in accordance with this Convention to supply information useful to competent authorities for investigative and evidentiary purposes and to provide factual, specific help to competent authorities that may contribute to depriving offenders of the proceeds of crime and to recovering such proceeds. 2. Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in the investigation or prosecution of an offence established in accordance with this Convention. 3. Each State Party shall consider providing for the possibility, in accordance with fundamental principles of its domestic law, of granting immunity from prosecution to a person who provides substantial cooperation in the investigation or prosecution of an offence established in accordance with this Convention. 4. Protection of such persons shall be, mutatis mutandis, as provided for in article 32 of this Convention. 5. Where a person referred to in paragraph 1 of this article located in one State Party can provide substantial cooperation to the competent authorities of another State Party, the States Parties concerned may consider entering into agreements or arrangements, in accordance with their domestic law, concerning the potential provision by the other State Party of the treatment set forth in paragraphs 2 and 3 of this article. Article 38. Cooperation between national authorities Each State Party shall take such measures as may be necessary to encourage, in accordance with its domestic law, cooperation between, on the one hand, its public authorities, as well as its public officials, and, on the other hand, its authorities responsible for investigating and prosecuting criminal offences. Article 39. Cooperation between national authorities and the private sector 1. Each State Party shall take such measures as may be necessary to encourage, in accordance with its domestic law, cooperation between national investigating and prosecuting authorities and entities of the private sector, in particular financial institutions, relating to matters involving the commission of offences established in accordance with this Convention. 2. Each State Party shall consider encouraging its nationals and other persons with a habitual residence in its territory to report to the national investigating and prosecuting authorities the commission of an offence established in accordance with this Convention. Article 40. Bank secrecy

98

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Each State Party shall ensure that, in the case of domestic criminal investigations of offences established in accordance with this Convention, there are appropriate mechanisms available within its domestic legal system to overcome obstacles that may arise out of the application of bank secrecy laws. Article 41. Criminal record Each State Party may adopt such legislative or other measures as may be necessary to take into consideration, under such terms as and for the purpose that it deems appropriate, any previous conviction in another State of an alleged offender for the purpose of using such information in criminal proceedings relating to an offence established in accordance with this Convention. Article 42. Jurisdiction 1. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offences established in accordance with this Convention when the offence is committed on board a vessel that is flying the flag of that State Party or an aircraft that is registered under the laws of that State Party at the time that the offence is committed. 2. Subject to article 4 of this Convention, a State Party may also establish its jurisdiction over any such offence when: (a) The offence is committed against a national of that State Party; or (b) The offence is committed by a national of that State Party or a stateless person who has his or her habitual residence in its territory; or (c) The offence is one of those established in accordance with article 23, paragraph 1 (b) (ii), of this Convention and is committed outside its territory with a view to the commission of an offence established in accordance with article 23, paragraph 1 (a) (i) or (ii) or (b) (i), of this Convention within its territory; or (d) The offence is committed against the State Party. 3. For the purposes of article 44 of this Convention, each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences established in accordance with this Convention when the alleged offender is present in its territory and it does not extradite such person solely on the ground that he or she is one of its nationals. 4. Each State Party may also take such measures as may be necessary to establish its jurisdiction over the offences established in accordance with this Convention when the alleged offender is present in its territory and it does not extradite him or her. 5. If a State Party exercising its jurisdiction under paragraph 1 or 2 of this article has been notified, or has otherwise learned, that any other States Parties are conducting an investigation, prosecution or judicial proceeding in respect of the same conduct, the competent authorities of those States Parties shall, as appropriate, consult one another with a view to coordinating their actions.

99

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

6. Without prejudice to norms of general international law, this Convention shall not exclude the exercise of any criminal jurisdiction established by a State Party in accordance with its domestic law. Chapter IVInternational cooperation Article 43. International cooperation 1. States Parties shall cooperate in criminal matters in accordance with articles 44 to 50 of this Convention. Where appropriate and consistent with their domestic legal system, States Parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to corruption. 2. In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested State Party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting State Party, if the conduct underlying the offence for which assistance is sought is a criminal offence under the laws of both States Parties. Article 44. Extradition 1. This article shall apply to the offences established in accordance with this Convention where the person who is the subject of the request for extradition is present in the territory of the requested State Party, provided that the offence for which extradition is sought is punishable under the domestic law of both the requesting State Party and the requested State Party. 2. Notwithstanding the provisions of paragraph 1 of this article, a State Party whose law so permits may grant the extradition of a person for any of the offences covered by this Convention that are not punishable under its own domestic law. 3. If the request for extradition includes several separate offences, at least one of which is extraditable under this article and some of which are not extraditable by reason of their period of imprisonment but are related to offences established in accordance with this Convention, the requested State Party may apply this article also in respect of those offences. 4. Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. A State Party whose law so permits, in case it uses this Convention as the basis for extradition, shall not consider any of the offences established in accordance with this Convention to be a political offence. 5. If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention the legal basis for extradition in respect of any offence to which this article applies. 6. A State Party that makes extradition conditional on the existence of a treaty shall: (a) At the time of deposit of its instrument of ratification, acceptance or

100

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

approval of or accession to this Convention, inform the Secretary-General of the United Nations whether it will take this Convention as the legal basis for cooperation on extradition with other States Parties to this Convention; and (b) If it does not take this Convention as the legal basis for cooperation on extradition, seek, where appropriate, to conclude treaties on extradition with other States Parties to this Convention in order to implement this article. 7. States Parties that do not make extradition conditional on the existence of a treaty shall recognize offences to which this article applies as extraditable offences between themselves. 8. Extradition shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable extradition treaties, including, inter alia, conditions in relation to the minimum penalty requirement for extradition and the grounds upon which the requested State Party may refuse extradition. 9. States Parties shall, subject to their domestic law, endeavour to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this article applies. 10. Subject to the provisions of its domestic law and its extradition treaties, the requested State Party may, upon being satisfied that the circumstances so warrant and are urgent and at the request of the requesting State Party, take a person whose extradition is sought and who is present in its territory into custody or take other appropriate measures to ensure his or her presence at extradition proceedings. 11. A State Party in whose territory an alleged offender is found, if it does not extradite such person in respect of an offence to which this article applies solely on the ground that he or she is one of its nationals, shall, at the request of the State Party seeking extradition, be obliged to submit the case without undue delay to its competent authorities for the purpose of prosecution. Those authorities shall take their decision and conduct their proceedings in the same manner as in the case of any other offence of a grave nature under the domestic law of that State Party. The States Parties concerned shall cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecution. 12. Whenever a State Party is permitted under its domestic law to extradite or otherwise surrender one of its nationals only upon the condition that the person will be returned to that State Party to serve the sentence imposed as a result of the trial or proceedings for which the extradition or surrender of the person was sought and that State Party and the State Party seeking the extradition of the person agree with this option and other terms that they may deem appropriate, such conditional extradition or surrender shall be sufficient to discharge the obligation set forth in paragraph 11 of this article. 13. If extradition, sought for purposes of enforcing a sentence, is refused because the person sought is a national of the requested State Party, the requested State Party shall, if its domestic law so permits and in conformity with the requirements of such law, upon application of the requesting State Party, consider the enforcement of the sentence imposed under the domestic law of the requesting State Party or the remainder thereof.

101

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

14. Any person regarding whom proceedings are being carried out in connection with any of the offences to which this article applies shall be guaranteed fair treatment at all stages of the proceedings, including enjoyment of all the rights and guarantees provided by the domestic law of the State Party in the territory of which that person is present. 15. Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin or political opinions or that compliance with the request would cause prejudice to that person’s position for any one of these reasons. 16. States Parties may not refuse a request for extradition on the sole ground that the offence is also considered to involve fiscal matters. 17. Before refusing extradition, the requested State Party shall, where appropriate, consult with the requesting State Party to provide it with ample opportunity to present its opinions and to provide information relevant to its allegation. 18. States Parties shall seek to conclude bilateral and multilateral agreements or arrangements to carry out or to enhance the effectiveness of extradition. Article 45. Transfer of sentenced persons States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences established in accordance with this Convention in order that they may complete their sentences there. Article 46. Mutual legal assistance 1. States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this Convention. 2. Mutual legal assistance shall be afforded to the fullest extent possible under relevant laws, treaties, agreements and arrangements of the requested State Party with respect to investigations, prosecutions and judicial proceedings in relation to the offences for which a legal person may be held liable in accordance with article 26 of this Convention in the requesting State Party. 3. Mutual legal assistance to be afforded in accordance with this article may be requested for any of the following purposes: (a) Taking evidence or statements from persons; (b) Effecting service of judicial documents; (c) Executing searches and seizures, and freezing; (d) Examining objects and sites; (e) Providing information, evidentiary items and expert evaluations; (f) Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records; (g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes;

102

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(h) Facilitating the voluntary appearance of persons in the requesting State Party; (i) Identifying, freezing and tracing proceeds of crime in accordance with the provisions of chapter V of this Convention; (j) The recovery of assets, in accordance with the provisions of chapter V of this Convention. 4. Without prejudice to domestic law, the competent authorities of a State Party may, without prior request, transmit information relating to criminal matters to a competent authority in another State Party where they believe that such information could assist the authority in undertaking or successfully concluding inquiries and criminal proceedings or could result in a request formulated by the latter State Party pursuant to this Convention. 5. The transmission of information pursuant to paragraph 4 of this article shall be without prejudice to inquiries and criminal proceedings in the State of the competent authorities providing the information. The competent authorities receiving the information shall comply with a request that said information remain confidential, even temporarily, or with restrictions on its use. However, this shall not prevent the receiving State Party from disclosing in its proceedings information that is exculpatory to an accused person. In such a case, the receiving State Party shall notify the transmitting State Party prior to the disclosure and, if so requested, consult with the transmitting State Party. If, in an exceptional case, advance notice is not possible, the receiving State Party shall inform the transmitting State Party of the disclosure without delay. 6. The provisions of this article shall not affect the obligations under any other treaty, bilateral or multilateral, that governs or will govern, in whole or in part, mutual legal assistance. 7. Paragraphs 9 to 29 of this article shall apply to requests made pursuant to this article if the States Parties in question are not bound by a treaty of mutual legal assistance. If those States Parties are bound by such a treaty, the corresponding provisions of that treaty shall apply unless the States Parties agree to apply paragraphs 9 to 29 of this article in lieu thereof. States Parties are strongly encouraged to apply those paragraphs if they facilitate cooperation. 8. States Parties shall not decline to render mutual legal assistance pursuant to this article on the ground of bank secrecy. 9. (a) A requested State Party, in responding to a request for assistance pursuant to this article in the absence of dual criminality, shall take into account the purposes of this Convention, as set forth in article 1; (b) Each State Party may consider adopting such measures as may be necessary to enable it to provide a wider scope of assistance pursuant to this article in the absence of dual criminality. 10. A person who is being detained or is serving a sentence in the territory of one State Party whose presence in another State Party is requested for purposes of identification, testimony or otherwise providing assistance in obtaining evidence for investigations, prosecutions or judicial proceedings in relation to offences covered by this Convention may be transferred if the following conditions are met: (a) The person freely gives his or her informed consent; (b) The competent authorities of both States Parties agree, subject to such conditions as those States Parties may deem appropriate.

103

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

11. For the purposes of paragraph 10 of this article: (a) The State Party to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the State Party from which the person was transferred; (b) The State Party to which the person is transferred shall without delay implement its obligation to return the person to the custody of the State Party from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both States Parties; (c) The State Party to which the person is transferred shall not require the State Party from which the person was transferred to initiate extradition proceedings for the return of the person; (d) The person transferred shall receive credit for service of the sentence being served in the State from which he or she was transferred for time spent in the custody of the State Party to which he or she was transferred. 12. Unless the State Party from which a person is to be transferred in accordance with paragraphs 10 and 11 of this article so agrees, that person, whatever his or her nationality, shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in the territory of the State to which that person is transferred in respect of acts, omissions or convictions prior to his or her departure from the territory of the State from which he or she was transferred. 13. Each State Party shall designate a central authority that shall have the responsibility and power to receive requests for mutual legal assistance and either to execute them or to transmit them to the competent authorities for execution. Where a State Party has a special region or territory with a separate system of mutual legal assistance, it may designate a distinct central authority that shall have the same function for that region or territory. Central authorities shall ensure the speedy and proper execution or transmission of the requests received. Where the central authority transmits the request to a competent authority for execution, it shall encourage the speedy and proper execution of the request by the competent authority. The Secretary-General of the United Nations shall be notified of the central authority designated for this purpose at the time each State Party deposits its instrument of ratification, acceptance or approval of or accession to this Convention. Requests for mutual legal assistance and any communication related thereto shall be transmitted to the central authorities designated by the States Parties. This requirement shall be without prejudice to the right of a State Party to require that such requests and communications be addressed to it through diplomatic channels and, in urgent circumstances, where the States Parties agree, through the International Criminal Police Organization, if possible. 14. Requests shall be made in writing or, where possible, by any means capable of producing a written record, in a language acceptable to the requested State Party, under conditions allowing that State Party to establish authenticity. The SecretaryGeneral of the United Nations shall be notified of the language or languages

104

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

acceptable to each State Party at the time it deposits its instrument of ratification, acceptance or approval of or accession to this Convention. In urgent circumstances and where agreed by the States Parties, requests may be made orally but shall be confirmed in writing forthwith. 15. A request for mutual legal assistance shall contain: (a) The identity of the authority making the request; (b) The subject matter and nature of the investigation, prosecution or judicial proceeding to which the request relates and the name and functions of the authority conducting the investigation, prosecution or judicial proceeding; (c) A summary of the relevant facts, except in relation to requests for the purpose of service of judicial documents; (d) A description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed; (e) The purpose for which the evidence, information or action is sought. 16. The requested State Party may request additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution. 17. A request shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State Party and where possible, in accordance with the procedures specified in the request. 18. Wherever possible and consistent with fundamental principles of domestic law, when an individual is in the territory of a State Party and has to be heard as a witness or expert by the judicial authorities of another State Party, the first State Party may, at the request of the other, permit the hearing to take place by video conference if it is not possible or desirable for the individual in question to appear in person in the territory of the requesting State Party. States Parties may agree that the hearing shall be conducted by a judicial authority of the requesting State Party and attended by a judicial authority of the requested State Party. 19. The requesting State Party shall not transmit or use information or evidence furnished by the requested State Party for investigations, prosecutions or judicial proceedings other than those stated in the request without the prior consent of the requested State Party. Nothing in this paragraph shall prevent the requesting State Party from disclosing in its proceedings information or evidence that is exculpatory to an accused person. In the latter case, the requesting State Party shall notify the requested State Party prior to the disclosure and, if so requested, consult with the requested State Party. If, in an exceptional case, advance notice is not possible, the requesting State Party shall inform the requested State Party of the disclosure without delay. 20. The requesting State Party may require that the requested State Party keep confidential the fact and substance of the request, except to the extent necessary to execute the request. If the requested State Party cannot comply with the requirement of confidentiality, it shall promptly inform the requesting State Party. 21. Mutual legal assistance may be refused: (a) If the request is not made in conformity with the provisions of this article;

105

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(b) If the authorities of the requested State Party would be prohibited by its domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction; (c) If it would be contrary to the legal system of the requested State Party relating to mutual legal assistance for the request to be granted. 22. States Parties may not refuse a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters. 23. Reasons shall be given for any refusal of mutual legal assistance. 24. The requested State Party shall execute the request for mutual legal assistance as soon as possible and shall take as full account as possible of any deadlines suggested by the requesting State Party and for which reasons are given, preferably in the request. The requesting State Party may make reasonable requests for information on the status and progress of measures taken by the requested State Party to satisfy its request. The requested State Party shall respond to reasonable requests by the requesting State Party on the status, and progress in its handling, of the request. The requesting State Party shall promptly inform the requested State Party when the assistance sought is no longer required. 25. Mutual legal assistance may be postponed by the requested State Party on the ground that it interferes with an ongoing investigation, prosecution or judicial proceeding. 26. Before refusing a request pursuant to paragraph 21 of this article or postponing its execution pursuant to paragraph 25 of this article, the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary. If the requesting State Party accepts assistance subject to those conditions, it shall comply with the conditions. 27. Without prejudice to the application of paragraph 12 of this article, a witness, expert or other person who, at the request of the requesting State Party, consents to give evidence in a proceeding or to assist in an investigation, prosecution or judicial proceeding in the territory of the requesting State Party shall not be prosecuted, detained, punished or subjected to any other restriction of his or her personal liberty in that territory in respect of acts, omissions or convictions prior to his or her departure from the territory of the requested State Party. Such safe conduct shall cease when the witness, expert or other person having had, for a period of fifteen consecutive days or for any period agreed upon by the States Parties from the date on which he or she has been officially informed that his or her presence is no longer required by the judicial authorities, an opportunity of leaving, has nevertheless remained voluntarily in the territory of the requesting State Party or, having left it, has returned of his or her own free will. 28. The ordinary costs of executing a request shall be borne by the requested State Party, unless otherwise agreed by the States Parties concerned. If expenses of a substantial or extraordinary nature are or will be required to fulfil the request, the States Parties shall consult to determine the terms and conditions under which the request will be executed, as well as the manner in which the costs shall be borne. 29. The requested State Party: (a) Shall provide to the requesting State Party copies of government

106

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

records, documents or information in its possession that under its domestic law are available to the general public; (b) May, at its discretion, provide to the requesting State Party in whole, in part or subject to such conditions as it deems appropriate, copies of any government records, documents or information in its possession that under its domestic law are not available to the general public. 30. States Parties shall consider, as may be necessary, the possibility of concluding bilateral or multilateral agreements or arrangements that would serve the purposes of, give practical effect to or enhance the provisions of this article. Article 47. Transfer of criminal proceedings States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence established in accordance with this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution. Article 48. Law enforcement cooperation 1. States Parties shall cooperate closely with one another, consistent with their respective domestic legal and administrative systems, to enhance the effectiveness of law enforcement action to combat the offences covered by this Convention. States Parties shall, in particular, take effective measures: (a) to enhance and, where necessary, to establish channels of communication between their competent authorities, agencies and services in order to facilitate the secure and rapid exchange of information concerning all aspects of the offences covered by this Convention, including, if the States Parties concerned deem it appropriate, links with other criminal activities; (b) To cooperate with other States Parties in conducting inquiries with respect to offences covered by this Convention concerning: (i) The identity, whereabouts and activities of persons suspected of involvement in such offences or the location of other persons concerned; (ii) The movement of proceeds of crime or property derived from the commission of such offences; (iii) The movement of property, equipment or other instrumentalities used or intended for use in the commission of such offences; (c) To provide, where appropriate, necessary items or quantities of substances for analytical or investigative purposes; (d) To exchange, where appropriate, information with other States Parties concerning specific means and methods used to commit offences covered by this Convention, including the use of false identities, forged, altered or false documents and other means of concealing activities;

107

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

(e) To facilitate effective coordination between their competent authorities, agencies and services and to promote the exchange of personnel and other experts, including, subject to bilateral agreements or arrangements between the States Parties concerned, the posting of liaison officers; (f) To exchange information and coordinate administrative and other measures taken as appropriate for the purpose of early identification of the offences covered by this Convention. 2. With a view to giving effect to this Convention, States Parties shall consider entering into bilateral or multilateral agreements or arrangements on direct cooperation between their law enforcement agencies and, where such agreements or arrangements already exist, amending them. In the absence of such agreements or arrangements between the States Parties concerned, the States Parties may consider this Convention to be the basis for mutual law enforcement cooperation in respect of the offences covered by this Convention. Whenever appropriate, States Parties shall make full use of agreements or arrangements, including international or regional organizations, to enhance the cooperation between their law enforcement agencies. Article 49. Joint investigations States Parties shall consider concluding bilateral or multilateral agreements or arrangements whereby, in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States, the competent authorities concerned may establish joint investigative bodies. In the absence of such agreements or arrangements, joint investigations may be undertaken by agreement on a case-by-case basis. The States Parties involved shall ensure that the sovereignty of the State Party in whose territory such investigation is to take place is fully respected. Article 50. Special investigative techniques 1. In order to combat corruption effectively, each State Party shall, to the extent permitted by the basic principles of its domestic legal system and in accordance with the conditions prescribed by its domestic law, take such measures as may be necessary, within its means, to allow for the appropriate use by its competent authorities of controlled delivery and, where it deems appropriate, other special investigative techniques, such as electronic or other forms of surveillance and undercover operations, within its territory, and to allow for the admissibility in court of evidence derived therefrom. 2. For the purpose of investigating the offences covered by this Convention, States Parties are encouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or arrangements for using such special investigative techniques in the context of cooperation at the international level. Such agreements or arrangements shall be concluded and implemented in full compliance with the principle of sovereign equality of States and shall be carried out strictly in accordance with the terms of those agreements or arrangements.

108

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

3. In the absence of an agreement or arrangement as set forth in paragraph 2 of this article, decisions to use such special investigative techniques at the international level shall be made on a case-by-case basis and may, when necessary, take into consideration financial arrangements and understandings with respect to the exercise of jurisdiction by the States Parties concerned. 4. Decisions to use controlled delivery at the international level may, with the consent of the States Parties concerned, include methods such as intercepting and allowing the goods or funds to continue intact or be removed or replaced in whole or in part. Chapter VAsset recovery Article 51. General provision The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard. Article 52. Prevention and detection of transfers of proceeds of crime 1. Without prejudice to article 14 of this Convention, each State Party shall take such measures as may be necessary, in accordance with its domestic law, to require financial institutions within its jurisdiction to verify the identity of customers, to take reasonable steps to determine the identity of beneficial owners of funds deposited into high-value accounts and to conduct enhanced scrutiny of accounts sought or maintained by or on behalf of individuals who are, or have been, entrusted with prominent public functions and their family members and close associates. Such enhanced scrutiny shall be reasonably designed to detect suspicious transactions for the purpose of reporting to competent authorities and should not be so construed as to discourage or prohibit financial institutions from doing business with any legitimate customer. 2. In order to facilitate implementation of the measures provided for in paragraph 1 of this article, each State Party, in accordance with its domestic law and inspired by relevant initiatives of regional, interregional and multilateral organizations against money-laundering, shall: (a) Issue advisories regarding the types of natural or legal person to whose accounts financial institutions within its jurisdiction will be expected to apply enhanced scrutiny, the types of accounts and transactions to which to pay particular attention and appropriate account-opening, maintenance and recordkeeping measures to take concerning such accounts; and (b) Where appropriate, notify financial institutions within its jurisdiction, at the request of another State Party or on its own initiative, of the identity of particular natural or legal persons to whose accounts such institutions will be

109

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

expected to apply enhanced scrutiny, in addition to those whom the financial institutions may otherwise identify. 3. In the context of paragraph 2 (a) of this article, each State Party shall implement measures to ensure that its financial institutions maintain adequate

110

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

records, over an appropriate period of time, of accounts and transactions involving the persons mentioned in paragraph 1 of this article, which should, as a minimum, contain information relating to the identity of the customer as well as, as far as possible, of the beneficial owner. 4. With the aim of preventing and detecting transfers of proceeds of offences established in accordance with this Convention, each State Party shall implement appropriate and effective measures to prevent, with the help of its regulatory and oversight bodies, the establishment of banks that have no physical presence and that are not affiliated with a regulated financial group. Moreover, States Parties may consider requiring their financial institutions to refuse to enter into or continue a correspondent banking relationship with such institutions and to guard against establishing relations with foreign financial institutions that permit their accounts to be used by banks that have no physical presence and that are not affiliated with a regulated financial group. 5. Each State Party shall consider establishing, in accordance with its domestic law, effective financial disclosure systems for appropriate public officials and shall provide for appropriate sanctions for non-compliance. Each State Party shall also consider taking such measures as may be necessary to permit its competent authorities to share that information with the competent authorities in other States Parties when necessary to investigate, claim and recover proceeds of offences established in accordance with this Convention. 6. Each State Party shall consider taking such measures as may be necessary, in accordance with its domestic law, to require appropriate public officials having an interest in or signature or other authority over a financial account in a foreign country to report that relationship to appropriate authorities and to maintain appropriate records related to such accounts. Such measures shall also provide for appropriate sanctions for non-compliance. Article 53. Measures for direct recovery of property Each State Party shall, in accordance with its domestic law: (a) Take such measures as may be necessary to permit another State Party to initiate civil action in its courts to establish title to or ownership of property acquired through the commission of an offence established in accordance with this Convention; (b) Take such measures as may be necessary to permit its courts to order those who have committed offences established in accordance with this Convention to pay compensation or damages to another State Party that has been harmed by such offences; and (c) competent authorities, when having to decide on confiscation, to recognize another State Party’s claim as a legitimate owner of property acquired through the commission of an offence established in accordance with this Convention. Article 54. Mechanisms for recovery of property through international cooperation in confiscation

111

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law: (a) Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another State Party; (b) Take such measures as may be necessary to permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of moneylaundering or such other offence as may be within its jurisdiction or by other procedures authorized under its domestic law; and (c) Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases. 2. Each State Party, in order to provide mutual legal assistance upon a request made pursuant to paragraph 2 of article 55 of this Convention, shall, in accordance with its domestic law: (a) Take such measures as may be necessary to permit its competent authorities to freeze or seize property upon a freezing or seizure order issued by a court or competent authority of a requesting State Party that provides a reasonable basis for the requested State Party to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph 1 (a) of this article; (b) Take such measures as may be necessary to permit its competent authorities to freeze or seize property upon a request that provides a reasonable basis for the requested State Party to believe that there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation for purposes of paragraph 1 (a) of this article; Article 55. International cooperation for purposes of confiscation 1. A State Party that has received a request from another State Party having jurisdiction over an offence established in accordance with this Convention for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system: (a) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or (b) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the territory of the requesting State Party in accordance with articles 31, paragraph 1, and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds of crime,

112

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

property, equipment or other instrumentalities referred to in article 31, paragraph 1, situated in the territory of the requested State Party. 2. Following a request made by another State Party having jurisdiction over an offence established in accordance with this Convention, the requested State Party shall take measures to identify, trace and freeze or seize proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, of this Convention for the purpose of eventual confiscation to be ordered either by the requesting State Party or, pursuant to a request under paragraph 1 of this article, by the requested State Party. 3. The provisions of article 46 of this Convention are applicable, mutatis mutandis, to this article. In addition to the information specified in article 46, paragraph 15, requests made pursuant to this article shall contain: (a) In the case of a request pertaining to paragraph 1 (a) of this article, a description of the property to be confiscated, including, to the extent possible, the location and, where relevant, the estimated value of the property and a statement of the facts relied upon by the requesting State Party sufficient to enable the requested State Party to seek the order under its domestic law; (b) In the case of a request pertaining to paragraph 1 (b) of this article, a legally admissible copy of an order of confiscation upon which the request is based issued by the requesting State Party, a statement of the facts and information as to the extent to which execution of the order is requested, a statement specifying the measures taken by the requesting State Party to provide adequate notification to bona fide third parties and to ensure due process and a statement that the confiscation order is final; (c) In the case of a request pertaining to paragraph 2 of this article, a statement of the facts relied upon by the requesting State Party and a description of the actions requested and, where available, a legally admissible copy of an order on which the request is based. 4. The decisions or actions provided for in paragraphs 1 and 2 of this article shall be taken by the requested State Party in accordance with and subject to the provisions of its domestic law and its procedural rules or any bilateral or multilateral agreement or arrangement to which it may be bound in relation to the requesting State Party. 5. Each State Party shall furnish copies of its laws and regulations that give effect to this article and of any subsequent changes to such laws and regulations or a description thereof to the Secretary-General of the United Nations. 6. If a State Party elects to make the taking of the measures referred to in paragraphs 1 and 2 of this article conditional on the existence of a relevant treaty, that State Party shall consider this Convention the necessary and sufficient treaty basis. 7. Cooperation under this article may also be refused or provisional measures lifted if the requested State Party does not receive sufficient and timely evidence or if the property is of a de minimis value. 8. Before lifting any provisional measure taken pursuant to this article, the requested State Party shall, wherever possible, give the requesting State Party an opportunity to present its reasons in favour of continuing the measure. 9. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties.

113

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Article 56. Special cooperation Without prejudice to its domestic law, each State Party shall endeavour to take measures to permit it to forward, without prejudice to its own investigations, prosecutions or judicial proceedings, information on proceeds of offences

114

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

established in accordance with this Convention to another State Party without prior request, when it considers that the disclosure of such information might assist the receiving State Party in initiating or carrying out investigations, prosecutions or judicial proceedings or might lead to a request by that State Party under this chapter of the Convention. Article 57. Return and disposal of assets 1. Property confiscated by a State Party pursuant to article 31 or 55 of this Convention shall be disposed of, including by return to its prior legitimate owners, pursuant to paragraph 3 of this article, by that State Party in accordance with the provisions of this Convention and its domestic law. 2. Each State Party shall adopt such legislative and other measures, in accordance with the fundamental principles of its domestic law, as may be necessary to enable its competent authorities to return confiscated property, when acting on the request made by another State Party, in accordance with this Convention, taking into account the rights of bona fide third parties. 3. In accordance with articles 46 and 55 of this Convention and paragraphs 1 and 2 of this article, the requested State Party shall: (a) In the case of embezzlement of public funds or of laundering of embezzled public funds as referred to in articles 17 and 23 of this Convention, when confiscation was executed in accordance with article 55 and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party, return the confiscated property to the requesting State Party; (b) In the case of proceeds of any other offence covered by this Convention, when the confiscation was executed in accordance with article 55 of this Convention and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party, return the confiscated property to the requesting State Party, when the requesting State Party reasonably establishes its prior ownership of such confiscated property to the requested State Party or when the requested State Party recognizes damage to the requesting State Party as a basis for returning the confiscated property; (c) In all other cases, give priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of the crime. 4. Where appropriate, unless States Parties decide otherwise, the requested State Party may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property pursuant to this article. 5. Where appropriate, States Parties may also give special consideration to concluding agreements or mutually acceptable arrangements, on a case-by case basis, for the final disposal of confiscated property. Article 58. Financial intelligence unit

115

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

States Parties shall cooperate with one another for the purpose of preventing and combating the transfer of proceeds of offences established in accordance with this Convention and of promoting ways and means of recovering such proceeds and, to that end, shall consider establishing a financial intelligence unit to be responsible for receiving, analysing and disseminating to the competent authorities reports of suspicious financial transactions. Article 59. Bilateral and multilateral agreements and arrangements States Parties shall consider concluding bilateral or multilateral agreements or arrangements to enhance the effectiveness of international cooperation undertaken pursuant to this chapter of the Convention. Chapter VITechnical assistance and information exchange Article 60. Training and technical assistance 1. Each State Party shall, to the extent necessary, initiate, develop or improve specific training programmes for its personnel responsible for preventing and combating corruption. Such training programmes could deal, inter alia, with the following areas: (a) Effective measures to prevent, detect, investigate, punish and control corruption, including the use of evidence-gathering and investigative methods; (b) Building capacity in the development and planning of strategic anticorruption policy; (c) Training competent authorities in the preparation of requests for mutual legal assistance that meet the requirements of this Convention; (d) Arrangements for the management of public finances, including public procurement, and the private sector; (e) Preventing and combating the transfer of proceeds of offences established in accordance with this Convention and recovering such proceeds; (f) Detecting and freezing of the transfer of proceeds of offences established in accordance with this Convention; (g) Surveillance of the movement of proceeds of offences established in accordance with this Convention and of the methods used to transfer, conceal or disguise such proceeds; (h) Appropriate and efficient legal and administrative mechanisms and methods for facilitating the return of proceeds of offences established in accordance with this Convention; (i) Methods used in protecting victims and witnesses who cooperate with judicial authorities; and (j) Training in national and international regulations and in languages. 2. States Parties shall, according to their capacity, consider affording one another the widest measure of technical assistance, especially for the benefit of developing

116

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

countries, in their respective plans and programmes to combat corruption, including material support and training in the areas referred to in paragraph 1 of this article, and training and assistance and the mutual exchange of relevant experience and specialized knowledge, which will facilitate international cooperation between States Parties in the areas of extradition and mutual legal assistance. 3. States Parties shall strengthen, to the extent necessary, efforts to maximize operational and training activities in international and regional organizations and in the framework of relevant bilateral and multilateral agreements or arrangements. 4. States Parties shall consider assisting one another, upon request, in conducting evaluations, studies and research relating to the types, causes, effects and costs of corruption in their respective countries, with a view to developing, with the participation of competent authorities and society, strategies and action plans to combat corruption. 5. In order to facilitate the recovery of proceeds of offences established in accordance with this Convention, States Parties may cooperate in providing each other with the names of experts who could assist in achieving that objective. 6. Hold international conferences and seminars to promote cooperation and technical assistance and to stimulate discussion on problems of mutual concern, including the special problems and needs of developing countries and countries with economies in transition. 7. States Parties shall consider establishing voluntary mechanisms with a view to contributing financially to the efforts of developing countries and countries with economies in transition to apply this Convention through technical assistance programmes and projects. 8. Each State Party shall consider making voluntary contributions to the United Nations Office on Drugs and Crime for the purpose of fostering, through the Office, programmes and projects in developing countries with a view to implementing this Convention. Article 61. Collection, exchange and analysis of information on corruption 1. Each State Party shall consider analysing, in consultation with experts, trends in corruption in its territory, as well as the circumstances in which corruption offences are committed. 2. States Parties shall consider developing and sharing with each other and through international and regional organizations statistics, analytical expertise concerning corruption and information with a view to developing, insofar as possible, common definitions, standards and methodologies, as well as information on best practices to prevent and combat corruption. 3. Each State Party shall consider monitoring its policies and actual measures to combat corruption and making assessments of their effectiveness and efficiency. Article 62. Other measures: implementation of the Convention through economic development and technical assistance

117

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. States Parties shall take measures conducive to the optimal implementation of this Convention to the extent possible, through international cooperation, taking into account the negative effects of corruption on society in general, in particular on sustainable development. 2. (a) To enhance their cooperation at various levels with developing countries, with a view to strengthening the capacity of the latter to prevent and combat corruption; (b) To enhance financial and material assistance to support the efforts of developing countries to prevent and fight corruption effectively and to help them implement this Convention successfully; (c) To provide technical assistance to developing countries and countries with economies in transition to assist them in meeting their needs for the mplementation of this Convention. To that end, States Parties shall endeavour to make adequate and regular voluntary contributions to an account specifically designated for that purpose in a United Nations funding mechanism. States Parties may also give special consideration, in accordance with their domestic law and the provisions of this Convention, to contributing to that account a percentage of the money or of the corresponding value of proceeds of crime or property confiscated in accordance with the provisions of this Convention; (d) To encourage and persuade other States and financial institutions as appropriate to join them in efforts in accordance with this article, in particular by providing more training programmes and modern equipment to developing countries in order to assist them in achieving the objectives of this Convention. 3. To the extent possible, these measures shall be without prejudice to existing foreign assistance commitments or to other financial cooperation arrangements at the bilateral, regional or international level. 4. States Parties may conclude bilateral or multilateral agreements or arrangements on material and logistical assistance, taking into consideration the financial arrangements necessary for the means of international cooperation provided for by this Convention to be effective and for the prevention, detection and control of corruption.

118

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Annex 4: Draft Legislation – Protection of Whistleblowers GENERAL CONSIDERATIONS Article 1. Purpose of the law The purpose of this law is to establish norms, procedures and mechanisms to facilitate and encourage the reporting of acts of corruption that are liable for administrative or criminal investigation and punishment and to protect public officials and any person who, in good faith, report or witness these acts. Article 2. Definitions Public official. In keeping with the provisions of the Inter-American Convention against Corruption, “public official,” “government official,” or “public servant” means any official or employee of the state or of its agencies,1 including those who have been selected, appointed, or elected to perform activities or functions in the name of the state or in the service of the state, at any level of its hierarchy, and irrespective of the hiring method used. Acts of corruption. Acts of corruption shall be taken as meaning the illicit acts described in Articles VI, VIII, IX, and XI of the Inter-American Convention against Corruption, together with those set out in the Criminal Code and in other special provisions of criminal law. In addition, illicit acts or misdemeanors of an administrative nature covered by the applicable special legislation, which are also subject to the terms of this provision, must also be taken into consideration. 1 For the purposes of this law, “agencies of the public administration” shall include all entities, organs, projects, programs, and companies of the state that carry out activities under administrative powers and are consequently considered subject to the common provisions of public law, with the exception of for those placed under another regime by the express mandate of law. 2 In general, these misdemeanors may be found in special laws on the administrative service and administrative career, Codes of Ethics, Disciplinary Codes, etc., according to the legal system of each country. Competent authority. Competent authority shall be taken as meaning the institution responsible for receiving, assessing, and granting protective measures. It may be judicial or administrative, according to the nature of the act of corruption.

119

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Good-faith whistleblower. Any person who informs the competent authority of an act which that person considers could be an act of corruption that is liable for administrative and/or criminal investigation. Good-faith witness. Any person who for whatever reason is in possession of relevant information about acts of corruption of an administrative and/or criminal nature and is willing to collaborate in its prosecution. Bad-faith whistleblowing or testimony. The act of providing the competent authority with information on an act of corruption, knowing that said acts have not been committed, or with falsified evidence or circumstantial evidence of their commission, in order for an administrative and/or criminal investigation process to be opened. Protected person. A whistleblower or witness of an act of corruption who has been granted protective measures in order to guarantee the exercise of his/her personal and labor rights and the administrative or judicial proceeding of the acts of corruption. Protective measures. A set of measures ordered by the competent authority intended to protect the exercise of the personal and labor rights of whistleblowers and witnesses of acts of corruption, and the administrative or judicial proceeding of the acts of corruption. Their application is to depend on the circumstances and conditions of vulnerability as assessed by the competent authority and, if appropriate, is to be extended to their spouses or partners, children, forebears, and siblings. Article 3. Competence When the complaint relates to acts of an administrative nature, the competent authority for receiving protection requests, assessing their contents, and/or granting the necessary measures shall be the office of the Comptroller General 3 Or other name or agency, depending on the administrative regime of the country in question. In general, it is recommended that this be an autonomous agency of the executive branch and that it also be responsible for bringing administrative proceedings against public servants.

120

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

When the complaint relates to acts of a criminal nature, the competent authority for receiving protection requests, assessing their contents, and/or granting the necessary measures shall be the office of the Public Prosecutor. To enforce protective measures and depending on their nature and scope, the assistance and cooperation of any other public agency may be sought. Article 4. Exceptions to the enforcement of the law No protective measures shall be granted to: 1. Those reporting or providing information in bad faith as set out in Article 14 of this law. 2. Those reporting based on information obtained through violations of basic rights. 3. People who have been expelled from the Program to Protect Whistleblowers and Witnesses of Acts of Corruption. Article 5. Dissemination commitment All public agencies shall establish the procedures necessary to disseminate the scope of this law among their workers and the general public, by publishing, at the very least, the text of this law in maximum-visibility locations. Irrespective of the foregoing, other kinds of mechanisms to ensure awareness of this law may be implemented. Article 6. Transparency, accountability and confidentiality All information presented by a whistleblower and/or witness, his or her identity, and all related activities may not be made public under any request for access to information, as the documents are confidential in nature. No information may be given nor any document submitted, except by order of the competent authority, or in an extraordinary case, by request from a court. Nevertheless, the program may be audited regarding operating procedures but in no case may the auditors know the names or locations of witnesses who have changed their identities or have been relocated. The auditors must sign a confidentiality agreement, so that at no time may an auditor disseminate by any means information relating to programs to protect whistleblowers and witnesses.

121

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

The competent authority shall submit an annual report to Congress on the condition and operation of this program, without being able to know or disclose the names or locations of witnesses who have changed identities or have been relocated. FACILITATION AND INCENTIVES FOR REPORTING ACTS OF CORRUPTION Article 7. Reporting acts of corruption The reporting of acts of corruption is the free and voluntary action whereby the competent authorities are informed of an act of corruption with a view to its subsequent assessment, investigation, and punishment. It may or may not be accompanied by an express request for protective measures. The mere lodging of a report triggers basic guarantees and protective measures as provided for in Article 17 of this law. Article 8. Reporting obligation Any person having knowledge of an act of corruption has the obligation to report to the competent authorities of the facts, for their investigation and punishment, and may not for that reason face impairments to that person’s integrity and property, as well as preserving his/her working conditions. In the case of public officials, this obligation and the procedures and protective measures applicable to reporting will be brought to their attention at the time of their initial hiring by the public agency. The authorities have the duty of assisting public employees and private citizens in complying with the obligation of reporting acts of corruption. Article 9. Administrative measures for facilitating the reporting of an act of corruption The competent authority responsible for receiving reports of acts of corruption shall implement organizational and operational changes5 to ensure timely attention is given to these reports and that their confidentiality is ensured, when necessary. These shall entail, at a minimum, measures such as: 1. Appointment of specialized officers for dealing with reports of acts of corruption. 2. Document processing procedures different from standard procedures. 3. Provision of a request form in accordance with the model attached to this law.

122

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

4. Assignment of a specific telephone hotline for receiving reports of acts of corruption. 5. Creation of a specific e-mail account for dealing with reports of corruption. 6. Presentation of reports through intermediaries, without revealing the whistleblower’s identity. These measures shall also apply to requests for protective measures for whistleblowers and witnesses of acts of corruption. Article 10. Anonymous reporting If for security reasons a whistleblower and/or witness refuses to give his/her identity, the authority shall assess the information received and, in accordance with its competence, rule on the commencement of the relevant investigation. Article 11. Confidentiality of the whistleblower’s identity Written records shall be kept of all corruption reports, regardless of how they are presented, to which end they shall be assigned special numerical codes to identify the person making the complaint; in no circumstance may any direct reference be made to the complainant’s identity in any subsequent proceeding before administrative and/or judicial venues. In addition, records shall be kept containing the names and dates of all persons having seen the complaint file, who shall be prevented from revealing that information in any way that would reveal the whistleblower’s identity or that of any person related to him/her. Failure to abide by this provision shall give rise to the applicable administrative, civil, and criminal liabilities as set out in Chapter VII of this law. 5 To the extent that is possible, these changes must not alter the contents of the law and must abide by the constraints imposed by the article. Article 12. Reporting workplace hostility or reprisals The agencies responsible for receiving reports shall also be responsible for receiving reports of acts of hostility – for example, arbitrary dismissals, wage reductions, sudden workplace relocations, unjustified changes in the nature of the job, etc. – that constitute an unjustified modification of workplace and unjustified supervision.

123

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Upon receipt of such reports, coordination will take place with the administrative agency responsible for the oversight of labor rights to set down a summary record of the allegations. If there is shown to be a connection between the testimony and the act of hostility and it is established that these are intended to intimidate or punish whistleblowers and/or witnesses, the matter shall be placed before the criminal and/or administrative authority for it to adopt the corresponding precautionary measures and to punish those responsible. It shall be considered an aggravating circumstance if the hostile act is shown to have been carried out by the superior of the whistleblower and/or witness. Article 13. Complaints against superiors In no instance may the formulation of a complaint against a superior be interpreted as a failure to abide by contractual obligations or a breach of loyalty toward the authority or institution that could lead to punitive measures. Such actions shall be considered harassment subject to liability as set out in Chapter VII of this law. Article 14. Reports made in bad faith Whistleblowers and/or witnesses who lodge complaints or give testimony against third parties, knowing that the acts were not committed or fabricating evidence or circumstantial evidence of their commission that could give rise to an administrative and/or criminal investigation, shall be fined by up to ... times the minimum-wage reference amount, regardless of the applicable civil and criminal sanctions. Article 15. Benefits for whistleblowers and/or witnesses of acts of corruption The competent authorities may extend economic benefits to whistleblowers and/or witnesses of acts of corruption when the information provided allows for the imposition of penalties involving monetary redress, or when the information provided is truthful and useful and contributes to the identification and location of resources, rights, or goods related to or potentially associated with operations related to acts of corruption. The amount of the award shall be up to the equivalent of … % of the value of what is recovered or reimbursed, according to the assessment performed by experts and

124

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

the decision of the competent authorities assessing the importance of the information provided. If necessary, express publications of the content of this article shall be made in the mass media. This benefit shall not apply if during the investigations it is established that the whistleblower and/or witness was in any way involved in an act of corruption through which he benefited directly or if such a circumstance was not initially reported. When the information referred to in this article is provided by a public servant, his/her collaboration in identifying or establishing acts of corruption shall be given a recognition of a nonfinancial nature. PROTECTION FOR WHISTLEBLOWERS OF ACTS OF CORRUPTION Article 16. Protection of whistleblowers Access to protection for corruption whistleblowers is a right that guarantees the exercise and full enjoyment of the integrity of his/her person and property and the conservation of his/her working conditions, which could possibly be threatened as a result of a report of an act of corruption. The authorities are obliged to protect the rights of those public employees and private citizens who report acts of corruption and, if necessary, to grant the additional protective measures indicated in this law. This protection places no restriction on the possibility of whistleblowers participating as witnesses in the investigation of the act of corruption. Article 17. Basic protection measures for whistleblowers of acts of corruption All whistleblowers of acts of corruption, by simply being so, shall enjoy the following basic measures of protection, requiring no grounded ruling from the competent authority: 1. Legal assistance for matters related to their report. 2. The confidentiality of their identities pursuant to Article 11. If the whistleblower is a public official, his/her working conditions shall be protected and he/she may not be terminated, fired, or removed from his/her position as a consequence of the complaint. This protection shall be permanent and may be maintained, at the discretion of the granting authority, even after the conclusion of the investigation and punishment

125

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

phases that ensue. In no instance shall this protection exempt a public official from administrative responsibilities arising from facts other than those of the complaint. If the whistleblower is a citizen with no public duties and suffers workplace hostility, he/she shall receive legal assistance in filing the remedies necessary to assert his/her rights in accordance with the labor standards of the private sector. Article 18. Additional protection measures for whistleblowers of acts of corruption In addition and at the discretion of the competent authorities, additional protective measures may be granted to whistleblowers of acts of corruption – on an exceptional basis – provided that there is a real or potential danger to or vulnerability of the integrity of their persons and property or of an unjustified change in their workplace conditions. These are: Protective measures in the workplace 1. Transfer of administrative unit within the agency. 2. Change of workplace, if applicable. 3. Suspension with pay and without prejudice. 4. Others established by the authority. Personal protective measures 1. Police protection. 2. Change of whistleblower/witness’s residence or concealment of whereabouts. In exceptional cases, this measure shall be applicable extraterritorially. 3. Others established by the authority. The granting of additional protective measures requires that the competent authority issue a grounded resolution. Article 19. Protective measures for witnesses In addition, and if necessary, on an exceptional basis and with cause, the competent authority may grant to whistleblowers of acts of corruption the protective measures extended to witnesses. Such measures shall be granted provided that the whistleblower agrees to abide by all the obligations and demands imposed on witnesses of acts of corruption and signs the corresponding Letter of Agreement, as set out under Article 31 of this Law. PROTECTION FOR WITNESSES OF ACTS OF CORRUPTION

126

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Article 20. Witness protection Access to protection for witnesses of acts of corruption is a right that guarantees the exercise and full enjoyment of the integrity of their persons and property and the conservation of their working conditions, which could possibly be threatened as a result of their involvement in the proceedings of a corruption investigation. For this purpose, the competent authorities shall provide witnesses of acts of corruption with maximum guarantees to ensure the protection of their rights and the proper course of investigation proceedings in the case. Article 21. Basic protection measures for witnesses of acts of corruption All witnesses of corruption, by simply being so, shall enjoy the following basic measures of protection, requiring no grounded ruling from the competent authority: 1. Legal assistance for their participation in the criminal or administrative proceedings. 2. The confidentiality of their identities pursuant to Article 11. If the witness is a public official, his/her working conditions shall be protected and he/she may not be terminated, fired, or removed from his/her position as a consequence of his/her involvement in the investigation proceedings. This protection shall be permanent and may be maintained, at the discretion of the granting authority, even after the conclusion of the investigation and punishment phases that ensue. In no instance shall this protection exempt a public official from administrative responsibilities arising from facts other than those of the act of corruption. If the witness is a citizen with no public duties and suffers workplace hostility, he/she shall receive legal assistance in filing the remedies necessary to assert his/her rights in accordance with the labor standards of the private sector. Article 22. Additional protection measures for witnesses of corruption In addition and at the discretion of the competent authorities, additional protective measures may be granted to witnesses of corruption – on an exceptional basis – provided that there is a real or potential danger to or vulnerability of the integrity of their persons and property or of an unjustified change in their workplace conditions.

127

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

These are the following: Protective measures in the workplace 1. Transfer of administrative unit within the agency. 2. Suspension with pay and without prejudice. 3. Change of workplace, if applicable. 4. Others established by the authority. Personal protective measures 1. The confidentiality of his/her identity in the proceedings in which the witness participates, preventing the documents from making express reference to his/her name, address, workplace, profession, or any other details that would serve to identify him/her. 2. Participation in proceedings using methods that prevent the visual or aural identification of the witness (voice distorters, face coverings, etc.) The use of this measure shall strive to avoid undermining the guarantees of due process during the corruption investigation. 3. Use of mechanical or technological procedures to avoid the physical participation

of

the

witness

in

the

proceedings

(videoconferencing,

teleconferencing, etc.) 4. Change of identity through the issuance of new papers. 5. Police protection that can include the permanent assignment of police personnel at their homes and to accompany them throughout the day. 6. Change of address or concealment of the witness’s whereabouts. In exceptional cases, this measure shall be applicable extraterritorially. 7. Monetary assistance for subsistence if left destitute as a result of the complaint. 8. Indication of an alternate address for notifications issued as a part of the investigation proceedings. 9. In the case of witnesses that are in prison, special protection measures, such as separation from the rest of the prison population or confinement in special prisons or areas. 10. Others established by the authority. The granting of additional protective measures requires that the competent authority issue a grounded resolution.

128

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

REQUESTING AND GRANTING PROTECTIVE MEASURES Article 23. Applications for protective measures made by whistleblowers and witnesses of acts of corruption An application for protective measures is an action whereby a whistleblower and/or witness of acts of corruption requests the granting of protective measures, deeming the integrity of his/her person or property to be threatened or undermined or there to be an undue alteration in his/her working conditions. Article 24. Filing period for lodging protection requests Protection requests may be presented along with the report of an act of corruption or at a later date. No formalities are applicable to their presentation, and they may be made orally, by e-mail, over the telephone, and/or in writing. Irrespective of the foregoing, specific forms may be designed in consideration of the provisions of this law. If not presented by the whistleblower or witness of acts of corruption, upon observing the conditions of danger the competent authority may grant the additional protective measures set out in Articles 18 and 22 of this law, after inquiring of the whistleblower and/or witness of acts of corruption regarding the circumstances on which they are made, and upon acceptance on their part to the commitments that this entails. Article 25. Admissibility of applications for protective measures Protection requests shall be admitted when they meet requirements such as the following: 1. They must be based on the presentation of a complaint alleging actions or failures to act that indicate acts of corruption of a criminal and/or administrative nature. 2. They must identify the perpetrators of the alleged facts and, if applicable, their accomplices. If this information is unknown, an explicit note of that fact must be made. 3. The alleged facts must not have been dealt with in formally concluded judicial or administrative proceedings (res judicata) 4. Statutory limitations must not be applicable to the alleged facts.

129

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

5. They must contain a signed commitment by the whistleblower and/or witness to cooperate in all formalities at the request of the competent authority. 6. One or more protective measures must be expressly requested. 7. The beneficiaries must be identified. If necessary, should any requirement be omitted from the request for protective measures, the applicant shall be given a deadline of … days in which to provide the information needed. Article 26. Assessment of protection requests After receiving a protection request, the competent authorities shall assess the information received in order to determine its relevance and the level of danger or vulnerability to which the applicant is subject and, if appropriate, order the granting of the additional protective measures set out in Articles 18 and 22 of this law. For this purpose, the competent authorities shall order all the relevant formalities to obtain certainty regarding the alleged facts. If not, the request for protective measures shall be declared either partially or wholly inadmissible and, if necessary, the applicant shall be called on to submit additional information. Article 27. Assessing the relevance of the information The information provided by the whistleblower and/or witness for the purpose of securing protective measures shall be deemed relevant if it allows the administrative and/or judicial authority to meet at least one of the following: 9 A declaration of res judicata (by a judicial or administrative venue) means that the matter cannot be reviewed because the appeal instances have been exhausted and the authority has already ruled on it. 1. To prevent the continuation, existence, or completion of the act of corruption, or to substantially reduce the magnitude or consequences of its execution. 2. To prevent or neutralize future acts of corruption. 3. To identify the circumstances in which the act of corruption was planned and carried out, or the circumstances in which it is being planned or carried out.

130

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

4. To identify the perpetrators and accessories of an act of corruption that has been or is about to be committed, or the members of a criminal organization and its operations, in order to dismantle or weaken it or arrest one or more of its members. 5. To ascertain the whereabouts or destination of the instruments, goods, effects, and proceeds of the act of corruption, and to reveal the sources of funding of criminal organizations. 6. To hand over to the authorities criminal instruments, effects, proceeds, or goods produced by acts of corruption. 7. To contribute, in the judgment of the competent official, evidence for further pursuit of the investigation. For the purposes of this article, a substantial reduction in the magnitude or consequences of the execution of an act of corruption shall be when there is a reduction in the volume of the damage that would have been caused by planned or ongoing actions through the timely notification of the authorities, or when such notification prevents the commission of those actions. Article 28. Evaluation of potential risk to whistleblowers and/or witnesses The risk assessment shall depend on the existence of actual or potential conditions of danger for the whistleblower and/or witness of acts of corruption. Actual conditions of risk are those in which actions have already taken place against a whistleblower’s physical integrity, property, and/or job security, and/or those of his/her spouse or companion, children, forebears, or siblings, with the possibility of other similar actions affecting them in the future. Potential conditions of risk are when there exist facts or circumstances that allow the inference of possible attacks on a whistleblower’s physical integrity, property, and/or job security, and/or those of his/her spouse or companion, children, forebears, or siblings. Article 29. Preparation and contents of the order granting or denying additional protective measures Upon conclusion of the corresponding preliminary formalities, and if additional protective measures are to be granted or denied to the whistleblowers and/or witnesses, an order shall beprepared, indicating:

131

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

1. The reported facts and the preliminary formalities carried out. 2. The protective measures granted or the reason for their denial. 3. The mandate to the agencies whose involvement or assistance is deemed necessary to implement the protective measures. 4. An application for mutual assistance from another state, if required. 5. The obligations to which the protected person is to be subject. 6. The conditions that involve the removal of protective measures. Article 30. Obligations of persons under protection The obligations to which the beneficiary of protection is subject seek to ensure the good course of the criminal and/or administrative proceedings related to the act of corruption, and to maintain the conditions necessary for the continuance of the protective measures. Consequently, they may include: 1. Cooperating in the necessary formalities at the request of the competent judicial and/or administrative authority. 2. Behaving appropriately in order to maintain the effectiveness of the protective measures, ensuring its integrity and security. 3. The duty of confidentiality by the whistleblower or witness, even when they leave the program, with regard to the conditions and the manner the program operates. 4. Other measures as indicated by the competent administrative authority and/or the Office of the Public Prosecutor. In case of noncompliance of these obligations by a person under protection, the authority, depending on the severity of the case, may reprimand or expel the person from the Program to Protect Whistleblowers and Witnesses of Acts of Corruption, notwithstanding of any civil proceedings undertaken to in order to compensate any damages caused to the State. Article 31. Letter of agreement on compliance obligations Once admitted to the Program to Protect Whistleblowers and Witnesses of Acts of Corruption, whistleblowers and witnesses must sign a Letter of Agreement on Compliance Obligations, which is a document that sets out in detail both the obligations and actions by the authority responsible for granting protection, the obligations and actions to be undertaken by whistleblowers and witnesses, as well

132

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

as the sanctions that the latter may have imposed for noncompliance, which may include expulsion from said Program. This Letter should contain, at minimum: 1. The statement by the whistleblower or witness, and in the case of persons connected by kinship, that admission to the aforementioned Program is voluntary, knowingly and made without coercion and that the granting of protection measures is not to be understood as payment, compensation or reward for testifying. 2. The scope and nature of the protection that is to be granted by the authority, as set out in the order referred to in Article 29 of this Law. 3. The obligations of the whistleblower and witness subject to protection and the sanctions to be applied in cases of non compliance, as set out in the order referred to in Article 29 of this Law. Article 32. Deadline for issuing resolutions on the granting of protective measures The deadline within which the authority is to issue a resolution granting or denying the protective measures sought may not exceed … calendar days. Article 33. Granting of precautionary protective measures Regardless of the deadline for the resolution and after assessing the conditions of risk, the authority may, immediately after the request for protection is filed, grant protective measures on a precautionary basis, subject to subsequent verification of the alleged facts. Article 34. Combined measures The granting of a protective measure does not preclude the possibility of others being granted; they may be combined depending on the circumstances assessed by the granting authority. Article 35. Extraterritorial enforcement Based on the reasons given by the competent authority to grant protective measures to whistleblowers and witnesses of acts of corruption, those measures may be applied in foreign territories as provided for in Chapter VIII of this law. Article 36. Adjustments to protective measures The agency granting the protective measures shall provide reasons on maintaining, modifying, or canceling any or all the protective measures extended to

133

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

whistleblowers and/or witnesses of acts of corruption at any stage in the administrative or criminal proceedings, whenever the beneficiary so requests or when developments so warrant arise. Article 37. Extension of additional measures Once the criminal and/or administrative proceedings have concluded and the relevant penalties have been imposed, the agency granting protective measures to whistleblowers and witnesses may decide to extend the life of the protective measures, provided that it believes that the conditions of risk still exist. Article 38. Transfer of jurisdiction If the complaint or request for protective measures was lodged before the competent administrative authority and it should be heard by the competent judicial authority, or if the investigations conclude that there are indications that some act considered a criminal offense may have been committed, or vice-versa, notice shall be given to the corresponding authority in order for the relevant proceedings to begin. This procedure shall be carried out in accordance with maximum guarantees to prevent any dissemination of confidential information that could endanger the person of the whistleblower and/or witness of acts of corruption. In such cases, the penalties described in Chapter VII of this law shall apply. CHALLENGES Article 39. Challenges Decisions by competent administrative and/or judicial authorities regarding the granting, denial, modification, or extension of protection requests may be challenged by any person or body with a legitimate interest. Article 40. Remedies for challenges at administrative venues The remedies for challenges at administrative venues are the following: 1. Reconsideration remedy. 2. Appeal remedy. 3. Review remedy. The period for filing challenges shall be ... working days, and they shall be resolved within no more than ... working days.

134

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Reconsideration remedies shall be filed with the agency that issued the first decision being challenged and shall be based on new evidence. Appeal remedies shall be filed when the challenge is based on a different interpretation of the documentation submitted or when matters of law alone are involved; they shall be addressed to the same authority that issued the administrative decision being challenged, which shall refer it to its appeal body. On an exceptional basis, review remedies may be admitted before a third venue with national jurisdiction, if the two previous instances were resolved by authorities without national jurisdiction, and they shall be addressed to the same authority that issued the decision being challenged for it to refer the proceedings to its hierarchical superior. They may only be based on considerations of law alone. Following the deadlines for lodging administrative remedies or when the final possible instance has issued judgment, the resolution granting protective measures shall be considered res judicata and the administrative decision shall stand. Administrative remedies may be brought on one occasion only in each administrative proceeding and at no time simultaneously. The decision that exhausts all administrative venues may be challenged before the judiciary by means of the procedure for administrative disputes provided for in the applicable law. Article 41. Remedies at judicial venues Rulings by the Office of the Public Prosecutor regarding the granting, denial, modification, or extension of protective measures may be challenged by means of a complaint appeal directed to the immediately superior judicial body within a period of no more than ... working days, specifying the act or omission on which it is grounded. It may be grounded on new evidence or on considerations of law alone, and shall be resolved within a maximum of ... working days. LIABILITY FOR NONPERFORMANCE OF DUTIES Article 42. Liability for nonperformance of duties Noncompliance or failure to observe duties related to the granting of protective measures to whistleblowers and witnesses of acts of corruption shall give rise to administrative, civil, and criminal liability, as applicable. Sanctions shall be

135

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

imposed through administrative or judicial proceedings as provided in the applicable special regulations. Elements of risk or vulnerability caused by imprudent actions on the part of the beneficiaries of protective measures cannot be blamed on public officials and shall trigger no liability either for them or the state. Article 43. Duties of public officials The following shall be the duties of public officials in connection with the protection of whistleblowers and witnesses of acts of corruption: 1. To receive complaints, protection requests, and challenge remedies conscientiously and on a timely basis. 2. To convey documents received to the authority responsible for giving a decision or ruling thereon within the legal deadline. 3. To resolve matters placed before them, providing reasons. 4. To communicate, within the deadline proscribed by law, the grounds for recusal involved in a case of clear incompatibility. 5. To fulfill mandates issued by superiors diligently and on a timely basis. 6. To discharge their functions in strict compliance with the law. 7. To refrain from disseminating in any way or allowing access to confidential information that might endanger the person of the whistleblower and/or witness. Nonfulfillment of these duties, or negligence in the prescribed actions, shall trigger liability leading to administrative sanctions following the pursuit of disciplinary proceedings by the competent authority. Article 44. Administrative sanctions The applicable administrative sanctions, classified as minor and major, are the following: Minor sanctions: 1. Admonishment. 2. Suspension. 3. Fine of up to ten times the applicable reference minimum wage. Major sanctions: 1. Rescission of contract.

136

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

2. Dismissal or firing. 3. Disqualification from holding public office for up to 5 years. Article 45. Criteria for imposing sanctions Sanctions shall be imposed in consideration of the following criteria: 1. The harm caused to the whistleblower and/or witness. 2. Extent to which the proceedings are affected. 3. Nature of the duties performed by the offender, together with his/her post and position in the hierarchy. 4. Recidivism. 5. Intentionality of the action. Article 46. Civil liability for noncompliance with protective measures granted to whistleblowers and witnesses Irrespective of administrative liability, the commission of acts that result in the noncompliance with the obligations by officials responsible for protecting whistleblowers and witnesses of acts of corruption shall give rise to civil liability, consisting of the payment of damages as determined by the competent judicial authority. Article 47. Criminal liability Criminal liability shall entail the imposition of a criminal penalty for the crime of failing to carry out duties, as determined by the authority with judicial competence over criminal matters. Article 48. Responsibility of beneficiaries The granting and maintenance of protective measures is dependant on compliance with the obligations described in Article 30 and in the signed Letter of Agreement as set out in Article 31 of the Law. Noncompliance therewith may be punished with expulsion from the Program to Protect Whistleblowers and Witnesses of Acts of Corruption following an investigation of the facts entailing violations of those obligations, of which record shall me made, by the competent authority, in the grounded resolution adopting such a decision, against which the corresponding challenges shall be admissible. MECHANISMS FOR INTERNATIONAL COOPERATION

137

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

Article 49. Areas for international cooperation in protecting whistleblowers and witnesses of acts of corruption Within the framework of the principle of reciprocity established by different provisions and instruments of public international law, such as the Inter-American Convention against Corruption and other treaties to which the State is a part, consideration shall be given to the provision of mutual assistance for meeting the purposes of this law in the following areas: 1. Implementation of protective measures for whistleblowers and witnesses of acts of corruption. 2. Enforcement of judicial procedures. 3. Cooperation for institutional strengthening Article 50. International cooperation for implementing measures to protect whistleblowers and witnesses of acts of corruption In accordance with the principle of reciprocity, the authorities responsible for granting and/or implementing protective measures for whistleblowers and witnesses of acts of corruption shall consider rendering assistance to other states in enforcing the following protective measures: 1. Issuance of a new identity. 2. Change of residence or concealment of whereabouts. 3. Change of workplace or temporary relocation, as applicable. 4. Others, as applicable. Article 51. Termination of protective measures The authorities responsible for implementing protective measures for corruption whistleblowers and witnesses at the request of another state shall cease to do so when: 1. They are notified of an order of termination of protective measures by the state that granted them. 2. The protected whistleblower and/or witness breaches the public order. 3. Imprudent actions by a protected person endanger the implementation of the protective measures. Article 52. International cooperation for the enforcement of judicial procedures

138

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

In accordance with the principle of reciprocity enshrined in the Inter-American Convention on Mutual Assistance in Criminal Matters and in other treaties to which the State is a party, the authorities responsible for granting and/or implementing protective measures for whistleblowers and witnesses of acts of corruption shall consider providing extensive assistance to other states requiring the enforcement of judicial actions in criminal proceedings involving acts of corruption. Consequently, and if so requested, they may: 1. Receive testimony and/or statements sought by the requesting country. 2. Serve notification of resolutions. 3. Conduct inspections or seizures. 4. Transfer the protected whistleblower and/or witness to the country that granted the protective measure. Transfers to other states may take place provided that the state that initially granted the protective measures so agrees. 5. Provide copies of any documents necessary to clear up the alleged facts that gave rise to the granting of protective measures. 6. Any other action, provided that both states are in agreement thereon. Article 53. Cooperation for institutional strengthening Pursuant to the Inter-American Convention against Corruption, the agencies empowered to issue protective measures to whistleblowers and witnesses of acts of corruption shall be authorized to render the broadest mutual assistance to other similar agencies of other states through the following mechanisms: 1. Mutual legal assistance. 2. Mutual technical cooperation. 3. Meetings to exchange experiences. 4. Professional internships or positions in other similar entities. For this, ties of direct bilateral cooperation shall be established but, in addition, states shall participate actively in the existing multilateral cooperation efforts. Article 54. Requests for assistance Requests for assistance in the protection of whistleblowers and witnesses of acts of corruption shall be made in accordance with the internal rules and provisions of the State on which the request is served and in accordance with bilateral and

139

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

multilateral agreements on this issue. Requests for mutual legal assistance shall be made in the official language of the requested State. For receiving and processing requests for assistance in connection with the protection of whistleblowers and witnesses of acts of corruption, the coordination shall be carried out through the Central Authorities for International Legal Assistance. When the complaint is administrative in nature, requests for mutual assistance between states shall be dealt with directly by the Comptroller General’s Office173 and the competent agency of the other country. Requests for assistance shall contain the following information: 1. Description of the offense or administrative misdemeanor in question, and of the reasons for the granting of protective measures and for the request for assistance from the state on which the request is served. 2. Exact description of the assistance sought and all the information necessary to comply with the request. 3. The threat level for the whistleblower or witness. 4. The conditions and needs of the whistleblower or witness, their professional background, their capacity for adaption, their criminal history, their psychological profile and responsibility for others. 5. Where appropriate, the number of people that will be relocated along with the whistleblower or witness. If deemed necessary, the requesting State may be asked for additional information and, if appropriate, the request shall be declined, with an explanation of the reason. Article 55. Confidentiality in requests for cooperation between States When requests for cooperation in protecting whistleblowers and witnesses of acts of corruption are received from other states, the absolute confidentiality of the information received shall be observed and formalities shall proceed in the same way as with people protected by this law. 173

Or another name or agency, depending on the administrative regime of each

country. In general, it is recommended that this be an autonomous agency of the executive branch and that it also be responsible for bringing administrative proceedings against public servants

140

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

This obligation shall be subject to the sanctions described in Chapter VII of this law. Article 56. Funding for mutual assistance actions Regardless of the existence of agreements with the authorities of other countries, when cooperation implies the transfer of protected persons to another territory, all the direct costs of mutual assistance actions shall be met by the requesting State, including accommodation, subsistence, medical assistance, and others. In addition, all indirect costs shall be met by the competent authorities of the requesting country, including such matters as internal transportation, police protection, etc. Article 57. Transfer of protected whistleblowers and witnesses detained in other states Transfers of whistleblowers and witnesses to whom protective measures have been granted and who are for any reason being detained in another state shall be governed by the rules for the transfer of persons contained in the Inter-American Convention on Mutual Assistance in Criminal Matters, the treaties to which the country is a party, and other provisions of international law. BASES FOR THE CREATON AND OPERATION OF A PROGRAM TO PROTECT WITNESSES AND WHISTLEBLOWERS OF ACTS OF CORRUPTION Article 58. Program to Protect Whistleblowers and Witnesses of Acts of Corruption The implementation of this law requires the creation of a Program to Protect Whistleblowers and Witnesses of Acts of Corruption to serve as an organic and specialized agency to enforce this law and pursue its goals. Thus, orders shall be given for the modification of the rules governing the necessary organization and functions in accordance with the framework and objectives of this law. Article 59. Operations of the Program to Protect Whistleblowers and Witnesses of Acts of Corruption In order to ensure the operations of the Program to Protect Whistleblowers and Witnesses of Acts of Corruption, adequate budgetary resources to ensure that the objectives of this law are met shall be provided.

141

REPORT - DECEMBER 2012

Legal Structures to address the Problem of Corruption in Pakistan

To comply with the provisions of this law, maximum personal guarantees shall be extended to all officials responsible for the protection of whistleblowers and witnesses of acts corruption. In addition, demanding selection procedures shall be implemented to guarantee the suitability of personnel, and their training for and continued presence in their positions shall be ensured. The government shall ensure the budgetary, technological, and other requirements necessary for due compliance with the provisions of this law. Article 60. Coordination with international agencies The Program to Protect Whistleblowers and Witnesses of Acts of Corruption shall seek to maintain ties of multilateral cooperation in order to strengthen their performance in discharging their duties. ADDITIONAL PROVISIONS ONE. Legislation enacted by the subnational levels of government shall remain in line with the provisions of this law within the scope of their functions and authority. Thus, by reason of its special nature, this law shall have precedence over other existing provisions. In Federal States, the states and the federal government may enter into cooperation agreements to establish mechanisms to incorporate the Program to Protect Whistleblowers and Witnesses of Acts of Corruption, to people who may be subject to protection. TWO. The Comptroller General’s Office and the Office of the Public Prosecutor shall regulate the necessary organizational and functional matters within those agencies in order to duly enforce Article 9 of this law, within a maximum of ... days of the date on which it comes into effect174.

174

Department of Legal Cooperation 2011b. Draft Model Law to Facilitate and Encourage the Reporting of Acts of Corruption and to Protect Whistleblowers and Witnesses. Organization of American States.

142

REPORT - DECEMBER 2012