Flaw In Ehtesab Act, 1997

FLAW IN EHTESAB ACT, 1997 FLAW IN EHTESAB ACT, 1997 By Ch. Muhammad Bashir, Advocate. Faisalabad Assuming the structural design of accountability machinery under the Ehtesab Act, 1997 to be correct, though exception has been taken to its unconstitutionality by means of a Writ Petition in the Lahore High Court, Lahore, it lacks in laying down objective criteria to hit at corruption. It envisages picking up individual transactions of corruption on the part of an accused person under the said Act. If be is involved in. hundred cases, of corruption then he will have to be proceeded against as many times. This is laborious and expensive for the Ehtesab Cell. It may even be difficult for the Cell to collect positive evidence to prove each act of corruption which is rarely available in such cases, as bribe is never documented or witnessed. The circumstantial evidence may not be sufficient enough to stand the test of proof before a Tribunal. In cases of serving public servants or politicians belonging to the ruling party, the witnesses may feel reluctant to depose against them for fear of reprisal. Even if they appear they may side with the accused. In bribery cases said approach of accountability is not correct. The correct basis should be excess wealth in possession of an accused person, whether in his own name or in the name of other persons holding on his behalf as Benami. To arrive at excess wealth every public servant, whether serving or retired, should be asked to submit declaration of his wealth before assumption of service and at present or on the date of retirement, as the case may be. The said statement should include the detail of assets acquired and disposed of, the expenses incurred in medical treatment of family members, education of children and their marriages. The difference of wealth between the two ends, after exclusion of salary earned during service and the income derived from other valid sources, will represent that money which has been received by him as bribe at the cost of the State. This principle has been followed in Attorney‑General of Hong Kong v. Reid 1994 SCMR 1431. In the said case, Mr. Reid a national of New Zealand, joined service in prosecution branch in Hong Kong and rose to the top slot of Director of Public Prosecution and was charged while accepting bribe as an inducement to exploit his special position by obstructing the prosecution of certain criminals and was sentenced to 8 years' imprisonment and ordered to pay to the Government of Hong Kong a sum of $HK 12.4 M, equivalent to $NZ 2.5 M, being the value of assets then controlled by Mr. Reid which were accumulated on account of bribe. I think it proper to reproduce two paras. from the said report: "When a bribe is offered and accepted in money or in kind, the money or property constituting the bribe belongs in law to the recipient. Money paid to the false fiduciary belongs to him. The legal estate in free hold property conveyed to the false fiduciary by way of bribe vests in him. Equity, however, which acts in personam insists that it is unconscionable for a fiduciary to obtain and retain a benefit in breach of duty. The provider of bribe cannot recover it because he committed a criminal offence when he paid the bribe. The false fiduciary who received the bribe in breach of duty must pay and account for the bribe to the person to whom that duty was owed. In the present case, as soon as Mr. Reid received a bribe in breach of the duties he owed to the Government of Hong Kong became a debtor in equity to the Crown for the amount of that bribe. So much is admitted. But, if the bribe consists of property which increases in value or if a cash bribe is invested advantageously, the false fiduciary will receive a benefit from his breach of duty unless he is accountable not only for the original amount or value of the property representing the bribe. As soon as the bribe was received he should have been paid or transferred instantly to the person who suffered from breach of duty. Equity considers as done that which ought to have been done. As soon as the bribe was received, whether in cash or in kind, the false fiduciary held the bribe, on a constructive trust for the person injured. When. a bribe is accepted by a fiduciary in breach of his duty then he holds that bribe in trust for the person to whom the duty was owed. If the property representing the bribe decreases in value the fiduciary must pay the difference between that value and the initial amount of the bribe because he should not have accepted the bribe or incurred the risk of loss. If the property increases in value, the fiduciary is not entitled to any surplus in excess of the initial value of the bribe because he is not allowed by any means to make a profit out of breach of duty." So, the basic criteria to be adopted in bribe cases should be the excess wealth with a public servant. It will represent all cases of corruption on his part during the course of service. It is to the extent of this excess wealth that the public servant has caused loss to the State and he is bound to return it to the State. It will obviate the necessity of proving each incident of corruption and shift the burden to the accused to explain away the acquisition of excess wealth. A supersession of wealth in the declaration will not only entail forfeiture of that wealth to the State but also conviction for corruption. In this view of the matter Ehtesab Act needs to be suitably amended to make excess wealth in possession of an accused person under that Act a basis for conviction, which, apart from any other penalty, should include the total forfeiture of excess wealth to the State. The politicians, in their capacity as legislators, or holders of public office, and all other persons amenable under the said Act, are to be treated at par with the Public Servants.