Conflict of interest and public office

Scrub him down while I go back for more:

I planted a harvest of them in that city:

Everyone there is a grafter except Bonturo.

There "Yes" is "No" and "No" is "Yes" for a fee.

Dante, The Divine Comedy, Inferno, XXI, 39-42

The young ones are groomed to join politics, civil service and other public offices. Politics runs in families. People clamor for holding public offices that are supposed to be a trust. There are people out there who are willing to compromise everything including honour to cling on to power and to lucrative offices. Respect is measured and given only if one has a heavy purse or a public office. There is more to it. Many of them have built business empires, estates and fortunes by holding public offices in breach of their oaths and trust. Their hold on power and politics largely owes to the wealth accumulated and inherited by being in public offices. Cases of corruption and misuse of authority and prosecution have failed to discourage them from acting in a conflict of interest situation and betraying their trust. Place a lifetime ban on all business or moneymaking activity of every kind on persons holding public offices and the stream of public life will be cleansed of corruption. State can pay a lifetime stipend to those who serve people. Caliph Abu Bakr (Allah be pleased with him) on assuming his office was successfully persuaded by Umar Al Khatab (Allah be pleased with him) to discontinue his business.

A conflict of interest occurs when a decision of a person holding a public office directly and indirectly benefits him. People holding public offices make decisions of which they are direct beneficiaries. Their pecuniary and other interests are directly linked with their decisions. This is not limited to politicians. It encompasses gamut of public life. Thus the question is: is there a built-in system in our constitutional and legal dispensation, which places a check on the conflict of interest in public life? In other jurisdictions this subject has gained much attention due to the falling ethical standards and probity in public life. Many books have been written on this subject. The focus of this piece is on political public life only.

Our Constitution envisages the state authority as a trust. Pakistan has a Parliamentary form of Government. The Executive Government is chosen from Parliament/Assembly. The Prime Minister has to be a member of the National Assembly (Article 91) while other ministers are also required to become members of Parliament if they are to continue beyond six months. Other functionaries like the Advisors and Special Assistants sit in Cabinet meetings and are privy to almost all decisions of the Government need not be the members of Parliament. The Cabinet (Prime Minister and Federal Ministers and Ministers of State) are responsible to the Parliament. An advisor can participate in the proceedings of Parliament and has a right of audience but cannot vote. There are many who hold public office but are not responsible to Parliament. The Committees of Parliament fail to hold accountable public office holders. The constitutional concept of ministerial responsibility has not been fully appreciated in our jurisprudence. It has relevance in the context of a check on conflict of interest situation as explained below.

The Constitution lays down qualifications and disqualifications (Article 62 & 63) for members of Parliament and Provincial Assemblies, which are indirectly applicable to members of Cabinet. In addition to the above, there is an oath of office of the President, Prime Minister and Ministers in the Third Schedule to the Constitution which states "I shall not allow personal interest to influence my official conduct and official decisions". It is matter of fact that these words though very solemn are only ornamental and are violated with impunity. Under the elections laws there is a requirement (a ritual) of filing statement of assets annually by the members of Parliament and Provincial Assemblies but there is no accountability for increase therein as all members/ministers are permitted to do businesses and occupations. There is no separate code of conduct for ministers and other public office holders. There is a code of conduct for judges of the superior courts only. They can be removed from office on misconduct. For civil servants and other persons in the service of Pakistan, misconduct, which includes inefficiency, is a ground for removal and dismissal. An agriculturist can be a Prime Minister, Minister or Advisor. An industrialist can become Prime Minister and multiply his wealth. A real estate tycoon can be minister for urban planning. The list goes on. Additionally, political parties are also part of public life but no significant checks are in place to keep high standards of conduct. These parties have only been very recently asked to account for party funds. It may lead to big scandals.

Why our Constitution does not prohibit business activity of people in public life particularly of those who hold executive elected offices? One reason is that our Constitution is designed on the British model and thus due to the British traditions and ethical practices and probity and the Cabinet being responsible to Parliament nobody could imagine being involved in conflict of interest situation for that would lead to a political death. But things have changed there too. MPs were found involved in pay and other scandals. A paradigm change has taken place there in recent times. The Cabinet Office regularly issues and updates a Ministerial Code (19 August 2019), which is a classic document and eye opener. A bare reading of that Code would show that in order to root out corruption, malpractices and conflict of interest in public life this Code must be followed in Pakistan. Under section 32 of the Constitutional Reforms and Governance Act, 2010, there is code of conduct for MPs as well under the Parliamentary Standards Act, 2009. This Code provides for an independent parliamentary standards authority, which is entrusted with the enforcement of those standards. These constitutional reforms in the UK can be taken as starting point to improve our system to eradicate the conflict of interest in public life.

The 18th Amendment amended about 100 Articles of the Constitution. It is pity that this opportunity was not utilized to update our constitutional structure in the light of contemporary developments, which included raising standards conduct in public life. Instead of going back into the past to restore the 1973 Constitution, a new social contract, invigorating democracy, democratic values and rule of law could be infused into the Constitution.

Copyright Business Recorder, 2019