Zafar Aziz Chaudhry
THE present politico-legal landscape of Pakistan has brought into sharp focus the concept of ‘conflict of interest’ which is comparatively new for most people including those who are connected with legal profession. This may be due to the fact that in Pakistan no litigation has ever been brought against the wrong caused by a ‘conflict of interest’. It is not without surprise that there is no law preventing conflict of interest at federal level in Pakistan, though a legislation has recently been passed by Provincial Assembly of KP Province. However concept ‘conflict of interest’ wherever used in our judicial precedents seems to carry only a moral force without being legally binding.
All laws are essentially based on the rules of prudence. In an organized society, a prudent behaviour is not possible unless it is enforced by the sanction of the State necessary to compel obedience to the kind of behaviour which the society desires. Without the elements of force and deterrence, the rules of prudence do not go beyond the principles of ethics which the experience shows, are daily thrown to the winds.
A conflict of interest is a situation in which a person has a private or personal interest sufficient to appear to influence in the exercise of his or her official duties. The personal interest may be financial or otherwise, but that interest always works to the advantage of the person exercising such powers. As a public official or a professional, one is required to do one’s duties freely and independently in public interest or in the interest of one’s employer or client.
In doing so, one incures an obligation towards the institution or the person whose interest one is serving. If factors like private or personal interest interfere or appear likely to interfere in the due discharge of the duties, then it amounts to a conflict of interest which must be avoided at all cost. As a matter of public policy, such situations are more likely to effect the public interest sooner or later, and therefore should not be allowed to occur. An apparent conflict of interest is one which a reasonable person would think that the professional’s judgment is likely to be compromised. A potential conflict of interest involves a situation that may develop into an actual conflict of interest. It requires some skill and good judgment to recognize that one is in a conflict of interest situation. This is because private and personal interest can cloud a person’s objectivity. But if one is headed into a situation of conflict of interest, then best course is that one should voluntarily get out of such situation, or if one cannot do so, then second best course is that one must make it known to all effected parties of one’s private interest. These responses will preserve trust essential to professional objectivity. It is an irony that a situation of conflict of interest has ingrained potential to cause mischief sooner or later, and to think or suppose otherwise amounts to stretching human limitations beyond their capacity, especially in a society like ours.
Our KP Province has recently taken a unique and bold step in unanimously passing the ‘Khaiber Pakhtunkhwa Prevention of Conflict of Interest Act 2016’ which aims at preventing and minimizing the possibility of conflicts between private interests and official duties of public office-holders in the Province. It envisages the establishment of an independent Commission with the mandate to determine the measures necessary to avoid conflict of interest and to determine whether a contravention of this Act occurred, by also encouraging experienced and competent persons to hold positions of public office. The Act devises procedure for submission of signed summaries, refusals and compliance by all public office-holders to the directions of the Commission to prevent situations of conflict of interest. The Commission has the powers to enquire into incidents of contraventions of the Act. Penalties of criminal and departmental actions and a fine up to Rs five hundred thousands also prescribed. But more important than the penalties is real purpose of Act which is to afford a chance to the conscientious office-holders to refuse themselves from awkward situations of conflict of interest and by duly registering themselves with Commission to avoid future embarrassments. Commission also acts as a conduit to public complaints to enable itself to act in time where situations of conflict of interest are likely to arise.
The Act was tabled in June 2014 and after prolonged deliberations by the House and the Select Committee, it was passed in August 2016. There is no doubt about the intentions of the K.P. legislators to meet head-on the festering and hidden evil of conflict of interest in matters of public importance, but the real challenge to the K.P government would be in the honest and effective implementation of this legislation. There is virtually no hindrance for other provinces to following this line.
—The writer is retired Secretary, Govt of Punjab, Lahore.