Policy paper on accountability: Top bureaucrats recommend 13 amendments to NAO

ISLAMABAD: A group of senior civil servants, working in key positions, has prepared a policy document, recommending 13 amendments to the National Accountability Ordinance (NAO).

A copy of the plausible policy paper titled “Honest Accountability: Bringing NAO, 1999, into the 21st Century” was provided to The News but their authors wanted to remain anonymous. All of them are sympathetic to the present government as an official put it. They are of the view that with the present NAO in place civil servants are shying of delivering and taking responsibility or decisions.

The official said the government and lawmakers may benefit from the document for action. The paper cited Supreme Court judgements to back up its recommendations and assertions. The fine document, written in a systematic form and containing rational proposals, gives the impression as if it was penned down by some officers of the elite District Management Group, who have vast diverse experience in various fields.

The first recommendation the paper made is that the maximum period of physical remand should be 15 days in line with other offences. For the purpose, Section 24(d) of the NAO “…detained in the custody of NAB [National Accountability Bureau] for the purpose of inquiry and investigation for a period not exceeding ninety days…” needs amendment. This change, the paper said, will resolve several issues: no meaningful interrogation is carried out after 15 days as the information available to NAB is presented in bits and pieces before the court in order to get remand extensions; lawyers’ meeting is not permitted; advocate can only meet the accused in the presence of the investigation officer (IO) and is unable to discuss the case/defence; and NAB police station is out of bound for any senior police officer or judicial scrutiny and is out of reach of public/family of detainees.

The document pointed out that in Asfandyar Wali judgement (2001), the Supreme Court observed that “We are inclined to the view that the outer limit of ninety days appears to be excessive”, but stopped short of fixing this duration. The second recommendation was that the trial court should be empowered to decide bail petition under Section 497 of the Criminal Procedure Code (CrPC) as is the case with all other non-bailable offences. Amendment to Section 9(b): “All offences under this Ordinance shall be non-bailable…no Court shall have jurisdiction to grant bail to any person...”

This amendment will resolve many issues: no bail envisaged in law (30 days fixed for trial/disposal of case); disposal in 30 days is neither possible nor desirable as it would cause serious miscarriage of justice; all rights available under CrPC have to be protected; bail petition is entertained by a two-judge bench of high court, which is not affordable by many accused; next available forum/remedy is only Supreme Court – very expensive and time taking; even in cases where accountability court feels that arrest is illegal or unjustified, it is constrained to give physical/judicial remand and cannot allow bail as NAO ousts jurisdiction of court to even hear bail; an individual once arrested cannot be released by any person (including chairman) – only option is to discharge from the case as innocent under Section 9(C); in high court, applicability of Section 497 of CrPC is still undecided – hence, even statuary period of one year is not applicable; and high court does not allow accused to be presented in bail hearings. In a white collar/corporate/public sector case, this is a serious limitation on how much a lawyer can prepare.

Leading attorneys do not visit jails. So preparations are indirect. The NAB IO and team are present in court to assist the prosecutor. Under the NAO, a division bench of high court takes up all appeals/bails etc., and thus forum of inter-court appeal (ICA) is not available.

The third recommendation is that a bipartisan oversight body/commission not directly involved in day-to-day affairs of NAB needs to be introduced. At a minimum, power of arrest, plea bargain and approval of filing of reference should rest with the commission, which should also take up any complaints against NAB. The commission must be external to NAB, and must not include any serving judge of the superior judiciary (as proposed in the amendment agreed by the parliamentary committee in 2017) so as to maintain separation of judiciary and executive as well as preventing courts from getting influenced where actions of the commission are challenged. The NAB prosecutor general and its complete department should be independent of the chairman and should report to the commission.

The paper said this recommendations will resolve issues like multiple cases against one person to make him accept plea bargain; arbitrary arrest at any stage (inquiry, investigation, trial) without any filtration process; different treatment of co-accused; arbitrary legal interpretation of various acts and redefining scope of its own offences; self-expansion of jurisdiction by entering into domain of special laws/agencies; duplicate jurisdiction with very different outcomes, including the Pakistan Penal Code (PPC) offences vs NAO offences; banking offences vs NAO offences; Security Exchange Commission of Pakistan (SECP) offences vs NAO offences; and tax offences vs NAO offences. NAB is even entering into civil and private disputes generally to favour or disfavour any party.

There is a flawed definition of offences: no yardstick/scope of offences e.g. misuse of authority can be blamed even for the minutest of procedural irregularity; ‘assets beyond means’ is an offence even for excess of ten rupees; arbitrary decisions on amount and terms of plea bargain leave a lot of room for rent seeking; NAB has assumed role of auditor whereby general scrutiny is conducted to find an offence; and no complaint forum for abuse of power such as illegal detention, victimization through multiple references, misconstrued cases due to poor human resource quality.

The fourth recommendation says that the process of NAB may be structured in defined outcomes -- inquiry leading to FIR/charge sheet; investigation leading to reference (if required); power of arrest to commence after FIR/charge sheet; input/referral of cases by concerned regulator/authority, (can act as pre-filter); and permission to arrest government officers from appropriate level e.g. cabinet secretary for officers up to Grade 20 and the prime minister for officers in grades 21 and 22 of civil services, and chief secretary and chief minister accordingly for provincial services.

It proposed amendment to Section 24, which now reads “The Chairman NAB shall have the power, at any stage of the inquiry or investigation under this Ordinance, to direct that the accused, if not already arrested, shall be arrested.”

The paper stated that this amendment will resolve various issues: no fixation of allegations/charges before arrest; thus pre-arrest bail becoming very difficult; grounds of arrest are served after arrest; howsoever absurd the grounds are, there is no remedy at that stage, except bail from high court (after physical remand); no filtration process/permission required to arrest government servants of any rank/seniority; no filtration of cases from concerned regulators/authorities on pattern of State Bank for bank loan cases; and SECP, Federal Board of Revenue (FBR), development authorities, Public Accounts Committee should refer cases to NAB.

The fifth recommendation said that trial may only commence after final reference is filed, which shall be no later than 75 days after arrest. It will resolve issues like practice of filing interim references without proper investigation supporting calculations or evidence to jump start trial; filing of supplementary reference to restart trial once defence has been exposed – often used to plug prosecution weaknesses or holes indentified by defense lawyers; lack of sanctity of reference has introduced mediocrity in human resource – investigations are carried out on guesswork or hit-or-miss strategy; NAB often changes its story as the investigation and trial progresses – grounds of arrest, comments on bail, first interim reference and supplementary reference have huge variation; witnesses remain at risk of being arrayed as accused and, therefore, provide testimony as per NAB desires; and arrest prior to doing detailed legwork on case/investigation.

This proposal suggested amendment to Section 18(f), which reads: “Any inquiry or investigation under this Ordinance shall be completed expeditiously as may be practical and feasible…” The sixth recommendation said that the definition of NAB offences may be updated to reflect settled case law on necessary ingredients. Section 9(a) e.g. (i)‘Misuse of authority’ where accused has disregarded law with conscious knowledge that act is being done without authority of law and has done so for illegal gain or pecuniary benefit or undue favour to self (2008 SCMR 1118); (ii)‘Assets disproportionate to known sources of income’ where accused during the period of holding public office amassed assets, the value of which, was substantially beyond the value of his/her known sources of income (Hakim Ali Zardari V State [2007 PLD 910]); (iii)“benamidar” means [existing definition….], the consideration for which has been paid by the accused (PLD 2002 Pesh.118); and (iv) Deletion of unconstitutional Section 14 – presumption of guilt.

This amendment will resolve issues: trial courts do not apply principles settled by superior judiciary and use plain reading of law to convict accused, despite consistent acquittal in appeals; and high acquittal rate, excessive work load in courts of appeal.

The seventh recommendation proposed establishment of federal prosecution department that is independent of all investigation agencies, and has an audit/accountability wing to check mala fide/poor performance of such agencies and recommend punitive action. The prosecutor general be placed in such central department.

The eighth suggestion was that all appointments to the NAB be made through Federal Public Service Commission (FPSC). It proposed amendment to Section 28(g) which now says “…Chairman NAB, shall not be required to consult the Federal Public Service Commission for making appointments and on matters relating to qualifications….”

The paper said that this amendment will resolve the issues like poor quality of human resource not appropriate for investigator role; politicisation of staff; and induction for various purposes. The ninth recommendation provided approval of arrest through speaking order to be recorded in writing.

Observations on Section 24 in PLD 2007 Karachi 597: “When Chairman NAB issued warrant of arrest of accused, there was no case diary showing that any material was placed before Chairman NAB for his perusal and examination enabling him to form opinions within the scope of Section 54 CrPC. At the relevant time there was no tangible evidence with Chairman NAB…. could not be termed as a legal warrant ….”

This will resolve issues like misuse of arrest power by trigger-happy delegates; victimisation/intimidation through threat of arrest; fictitious grounds of arrest, often formulated post-arrest; no due process where request is initiated by IO and assessed by senior officers – often director general/directors initiate and approve at spur of the moment and no paperwork that can be challenged in court by accused/victim.

The tenth recommendation said that freezing/caution on property should be placed only on approval of court and only to extent of property acquired through crime proceeds/illegal money (Section 12/23).

This will resolve issues: NAB misuses Section 23 to place caution on all assets/bank accounts of accused and family to bring accused to knees and force bargain. Whereas courts have observed that NAB has only power to freeze under Section 12; and accused does not even have liquidity to engage legal counsel and is at severe disadvantage.

In Asfandyar Wali judgement, the apex court observed that restriction on property be limited to that acquired through illegal means: “Section 23 of the Ordinance, in so far as it prohibits transfer of any right, title, interest or creation of charge after Chairman NAB has initiated investigation in the offences under the NAB ordinance, is an interlocutory measure, in that, it is not desirable that persons accused of such offences should frustrate the objects of law by creating third party interests in respect of illegally acquired property thereby creating hurdle in the objects of law ” and “purpose of this power is more to preserve the property acquired by the accused through corruption and corrupt practices.”

The eleventh recommendation said that raids should be conducted only in presence of magistrate. This will resolve different issues - actions by NAB officers/police outside of legal powers; harassment of family/non-accused to pressure accused; tampering /destruction of evidence; theft/misappropriation of goods confiscated but not recorded in seizure memo; and presence of unauthorized personnel such as media organised by NAB teams.

The twelfth recommendation was that the NAB police station should be inspected routinely by magistrate and senior police officers and made accessible to public. For the purpose, Section 24(f) needs amendment.

This will resolve issues: inflicting physical and mental torture on accused; control of family/lawyer meetings to isolate accused and extract confessions/incriminating statements; human rights abuses violating human dignity.

The thirteenth recommendation was that the NAB appeal should be heard by a single judge of high court. Section 32(b) should be deleted: “All Appeals against the final judgment filed before the High Court will be heard by a Bench of not less than two judges constituted by the Chief Justice of High Court….” This will resolve the issue of no right of inter-court appeal.

At the very outset, the document said that the NAO was promulgated as an exceptionally powerful tool to recover corruption money from the extremely rich and powerful who had traditionally managed to tilt the criminal justice system in their favour.

To make the law effective against such individuals, it dispensed with many fundamental rights and modeled the NAB as a clock tower where the Chairman has been imbued with exceptional power: All administrative and quasi-judicial powers vest with him – powers are delegated at his pleasure and are not inherently distributed (like Board of Revenue or post–reform police); chairman has power to initiate any case, arrest any person at any stage and determine whether a case is trial worthy; and absolute power to hire & fire all staff, including Prosecutor General’s subordinates, virtually gives Chairman control over all aspects of investigation and trial.

According to the paper, Chairman has power to negotiate with accused on any terms to secure best deal - plea bargain, voluntary return, pardon and release; he can freeze any assets of accused and relatives to secure looted money; and due to its many inconsistencies with Constitution (such as onus of proof on accused) and modern/international legal frameworks pertaining to white collar crime (physical remand of 90 days, non-bailable incarceration) NAO has often been termed draconian and is the mainstay of heated debates.

The Asfandyar Wali judgement declared some NAO sections against fundamental rights, but largely condoned the scheme using justification of special circumstances pertaining to 1999 martial law. Main dilemma is that a law formidable enough to bring to heel the most powerful has become a deterrent to the functioning of public offices or attraction of investment.

An analysis of 1,210 pending references in accountability courts will reveal a large number of cases against accused having liability amount of less than one million rupees. These are people from modest background who cannot even afford decent legal representation. There are even cases where drivers, labourers and other such poor people are stuck in jails because their ID, were used by fraudsters.

The document said family and accused are intimidated by prospect of jail for 1-3 years as punishment without trial due to absence of bail in law; plea bargain is offered (and mostly taken in view of hardship, lost income, legal fees and public humiliation); non-cooperative individuals face multiple references to increase difficulty/complexity of acquittal/bail; defence witnesses are asked to give statements favourable to prosecution, or in worst cases, arrayed as accused to convert into approvers through pardon; weekly prosecutable cases are filed on liberally interpreted offences or creation of new ones (loss to exchequer/misuse of authority) as it takes several years for a trial to conclude; family members are arrayed as accused and accounts frozen to completely destroy support system and capability to put up good legal defense; all original documentation is taken into custody and selectively included in the reference. Remaining is not accessible to the defendant for use in defense.

Due to absence of protection of fundamental rights in NAO, action of arrest unleashes a chain of events with plea bargain appearing to be the only way out; and actions have created an environment of fear, uncertainty and mistrust in public and private sectors alike.

The paper said no private person is eager to work with government agencies in any capacity as a consultant, contractor or employee as each is equally vulnerable to adverse action by NAB. It is unlikely that investors will be forthcoming in government’s main agenda of public-private partnerships, joint ventures and privatisation as long as such form of accountability continues, the document said.