close
Friday March 29, 2024

SC could make NAB, FIA, FBR independent by following Indian model

By Ansar Abbasi
February 21, 2017

ISLAMABAD: In the shape of Panama case, the Supreme Court of Pakistan has got a golden opportunity to get NAB, FIA and FBR independent from extraneous pressures including that of the government in line with what the Indian apex court did when the latter was confronted with a similar situation some two decades back.

How with the support of Indian Supreme Court, Central Bureau of Investigation (CBI) -- India’s top anti-corruption agency -- got operational autonomy in its working, is a perfect case study that not only matches today’s situation of Pakistan but provides best available solution for institution building.

Today Pakistan faces a situation where the NAB and FIA showed no keenness to probe PanamaLeaks because of the involvement of members of the prime minister’s family. It resulted into some petitioners approaching the apex court to get the matter probed.

During mid-90s, the CBI was unmoved to proceed against some high profile government figures in a serious case of crime and corruption. It led to filing of petitions before the Indian apex court to get the probe done into the accusation made against high dignitaries. 

The primary question before the Indian SC was: whether it was within the domain of judicial review and it could be an effective instrument for activating the investigative process which was under the control of the executive? The focus was on the question, whether any judicial remedy was available in such a situation?

However, as the case progressed, it required innovation of a procedure within the constitutional scheme of judicial review to permit intervention by the court to find a solution to the problem. This case has helped to develop a procedure within the discipline of law for the conduct of such a proceeding in similar situations. 

Even though the matter was brought to the court by certain individuals claiming to represent public interest, the Indian SC handed down a judgment which paved the way for the emergence of CBI as an independent and robust anti-corruption and anti-crime state entity.

According to the details, on 25.3.1991, one Ashfak Hussain Lone, alleged to be an official of a terrorist organisation, was arrested in Delhi. Consequent upon his interrogation raids were conducted by the CBI on the premises of Surender Kumar Jain, his brothers, relatives and businesses. 

Along with Indian and foreign currency, the CBI seized two diaries and two notebooks from the premises. They contained detailed accounts of vast payments made to persons identified only by initials. The initials corresponded to the initials of various high-ranking politicians, in power and out of power, and of high-ranking bureaucrats.

Since nothing was being done in the matter of investigation by the CBI, the writ petitions were filed on 4.10.1993, in the public interest under Article 32 of the Constitution of India. 

The gist of the allegations in the writ petitions was that the government agencies like the CBI and the Revenue authorities had failed to perform their duties and legal obligations in as much as they had failed to investigate matters arising out of the seizure of the "Jain Diaries"; that the apprehension of terrorists had led to the discovery of financial support to them by clandestine and illegal means using tainted funds obtained through "havala" transactions; that this had also disclosed a nexus between politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, given for unlawful considerations that the CBI and other government agencies had failed to investigate the matter and take it to its logical conclusion and prosecute all persons who were found to have committed an offence; that this was done with a view to protecting the persons involved, who were very influential and powerful; that the matter disclosed a nexus between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation; that probity in public life, the rule of law and the preservation of democracy required that the government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy. 

On the basis of these petitions, the Indian SC heard the case and passed its order in 1997. The order contained different directions some of which include:

-- The Central Vigilance Commission (CVC) -- shall be given statutory status. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the president on the basis of the recommendations made by the Committee. This shall be done immediately.

-- The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI's functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI's working, the CVC shall be entrusted with the responsibility of superintendence over the CBI's functioning. The CBI shall report to the CVC about cases taken up by it for investigation, progress of investigation, cases in which charge-sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused.

-- The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency.

-- The CVC shall have a separate section in its Annual Report on the CBI's functioning after the supervisory function is transferred to it.

-- Recommendations for appointment of the Director CBI shall be made by a Committee headed by the Central Vigilance Commissioner with the Home Secretary and Secretary (Personnel) as members. The views of the incumbent Director shall be considered by the Committee for making the best choice. The Committee shall draw up a panel of IPS officers on the basis of their seniority, integrity, experience in investigation and anti-corruption work. The final selection shall be made by the Appointments Committee of the Cabinet (ACC) from the panel recommended by the Selection Committee. If none among the panel is found suitable, the reasons thereof shall be recorded and the Committee asked to draw up a fresh panel.

-- The Director CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

-- The transfer of an incumbent Director CBI in an extraordinary situation, including the need for him to take up a more important assignment, should have the approval of the Selection Committee. 

-- The Director CBI shall have full freedom for allocation of work within the agency as also for constituting teams for investigations. Any change made by the Director CBI in the Head of an investigative team should be for cogent reasons and for improvement in investigation, the reasons being recorded.

-- Selection/extension of tenure of officers up to the level of Joint Director (JD) shall be decided by a Board comprising the Central Vigilance Commissioner, Home Secretary and Secretary (Personnel) with the Director CBI providing the necessary inputs. The extension of tenure or premature repatriation of officers up to the level of Joint Director shall be with final approval of this Board. Only cases pertaining to the appointment or extension of tenure of officers of the rank of Joint Director or above shall be referred to the Appointments Committee of the Cabinet (ACC) for decision.

The Indian SC judgment led to the emergence of CBI as an effective and independent state entity to check corruption and crime.

In 2003, in another case, the Indian SC while disapproving the then law minister Ashwani Kumar's interference with the coal scam investigations, invoked the 1997 judgment to drive home the message that even the prime minister, who has administrative jurisdiction over the CBI, did not have the power to do so. 

While recalling the norm laid down by the 1997 judgment in the Vineet Narain (Jain Hawala) case to insulate the agency from extraneous pressures, the bench headed by Justice R M Lodha said: "This Court noted that though the Minister who has been given responsibility for the functioning of the CBI has general power to review its working and give broad policy directions and he has also power to call for information regarding progress of the cases being handled by the agency, but none of these powers would extend to permit the concerned Minister to interfere with the course of investigation and prosecution in any individual case."