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December 3, 2019

Judiciary’s charge-sheet against NAB grows and grows


December 3, 2019

ISLAMABAD: Not once, twice, thrice but there are more and more cases coming up where the superior judiciary has found, only during the last one year, that the NAB is wrong in making corruption cases and arresting individuals for months and years.

However, there is no correction being made in the system by either Parliament or the government to save innocents from being wronged in the name of corruption and corrupt practices.

In its recent orders of the last one year, the superior judiciary has seriously questioned the NAB’s functioning in different cases and used the words and expressions like “arbitrary use of power”, “mala fide”, “conjectures”, “unperceived perceptions”, “lack of capacity” etc for the Bureau and its accountability. In almost all these cases, the courts have found NAB’s failure to produce evidence of corruption but arrested the accused.

The NAB, however, is of the view that it works as per law and rules and does not believe in victimisation, and pursues the corruption cases on merit without any fear or favour. Repeatedly the NAB chairman and its spokesperson have stated that the Bureau sees cases and not the faces in its endeavour to root out menace of corruption from the country.

But the superior judiciary has not only pointed out the poor understanding of NAB’s investigators but has also questioned the decision making of the NAB chairman. Despite such repeated damning orders from the superior judiciary against the NAB, no corrective measures have been taken to save people from Bureau’s wrongs.

In a PUNJMIN mining contract reference, the LHC recently while accepting the bail application of Muhammad Subtain Khan, the then minister for mines and minerals, had pointed out that the NAB in 2013 closed the inquiry into the matter noting that no loss had been caused to the public exchequer as the contract was cancelled by the Punjab government but the NAB chairman re-opened the case without holding inquiry against those who had closed it earlier.

The LHC verdict that pointed out serious flaws in Bureau’s decision making even at the highest level had noted, “But surprisingly without bringing on record any fresh ground or to digging out any hidden truth, the inquiry was reinitiated on the same allegations vide letter dated 26.04.2018 issued by the NAB DG. The reasons and circumstances were, apparently, neither brought before the NAB chairman nor he had formed opinion on the basis of material. He had just ordered the re-opening of inquiry without holding any official of the NAB responsible for closure of the inquiry. It is not the whims and designs unsubstantiated by the fresh disclosed facts on the basis of which it could re-open the closed inquiry in a slipshod manner. The reasons, if any, are shrouded in mystery. Needless to observe here that with greater powers always lies the greatest responsibilities. The powers of the NAB chairman are also structured by law and conscience, and therefore, he must be guided by them and not by unperceived perception infatuated by his subjective approach so as to use his discretion for taking some kind of imaginary blaming act. The prosecution has not alleged that the petitioner has got any kickbacks, made financial gains or caused any corresponding loss to the state.”

Only last week, the IHC almost trashed NAB’s LNG Terminal case in which three reputed men - former premier Shahid Khaqan Abbasi, ex-finance minister Miftah Ismail and MD PSO S Imranul Haq.

Admitting that the bail application of former MD PSO Sheikh Imranul Haq, the IHC in its order pointed out the sheer incompetence of NAB, how the cases are made on the basis of mere “conjectures”, lack of Bureau’s capacity to probe such matters, arbitrary use of NAB law provisions, violation of fundamental rights and that standard global business practices are treated by the anti-graft body as corruption and corrupt practices.

The IHC said the NAB could not point out any significant violation of the rules committed in the bidding process of LNG Terminal whereas the figures quoted by the Bureau as alleged loss to the exchequer are based on conjectures.

According to the IHC judgment, there was no material evidence of corruption available against the petitioner but it was NAB’s conjecture that the Sheikh Imranul Haq appointment as MD PSO was an alleged gain for him.

The court underlined that the standard business practices and arrangements, which are industry norms internationally are being treated, as corruption and corrupt practices.

The judgment said, “We have noted in several cases that the investigations are not carried out by experts, fraud examiners or investigators or data mining experts. We had also not come across any case like the one in hand where chartered accountants or trained professionals in matters relating to white-collar crime may have been associated during the inquiry or investigation. The capacity and professional competence of investigators is inevitable to deal with matters relating to white collar crimes. The object for which the Ordinance of 1999 was enacted can only be achieved if the alleged crime is investigated by professionals who are trained as experts in white collar crime. The case in hand appears to be a classic example of the violation of the guaranteed rights of a citizen. The investigation reports placed on the record and the written comments filed in this case speak volumes about competence and capacity of the Bureau to investigate white collar crime.”

Before this latest decision by IHC, the Saaf Pani Project, Ramazan Sugar Mills and Ashiana Housing Scheme - the three corruption cases made by the National Accountability Bureau against Shahbaz Sharif and others- have already become huge embarrassment for NAB at the hands of the superior judiciary.

In at least two of these cases, the Lahore High Court finds “mala fide” on part of NAB. In all the three cases, the LHC found no abuse of authority or violation of law, rules and procedure. Rather court held that no corruption, kickback, commission or illegal gratification was alleged even by NAB. The corruption watchdog had alleged abuse of authority and illegalities against former three times chief minister and his key bureaucratic aides but failed to prove any allegation.

Despite the fact that at bail stage courts make cursory assessment of allegations and do not go deep down but the Lahore High Court in at least two cases - Saaf Pani and Ramazan Sugar- found mala fide on part of NAB.

The LHC on the bail application of Shahbaz Sharif in Ashiana Housing Scheme and Ramazan Sugar Mill had ruled that Shahbaz neither misused his authority nor misappropriated funds allocated for the project or received illegal gratifications, commission or kickbacks.

In the Ashiana case, the court ruled that not an inch of state land was given to anyone. In Saaf Pani case the management saved almost Rs400 million whereas in Ramazan Sugar Mill case, the court found that the drain, which the NAB alleged was built for Ramazan sugar, was a “public welfare project”.

While dealing with NAB’s Ashiana case, the LHC referred to PTI government housing scheme to expose the double standards of the NAB, and said, “It is not understandable that as to why the NAB is insisting that the project (Ashiana housing) should have been executed in the government instead of public private partnership mode when the later mode is also lawful, as envisaged under the Public Private Partnership Act, 2014. It is also noteworthy that even the sitting government has launched a project for the construction of 5,000,000 houses in Pakistan under the same mode (public private partnership) and no objection has so far been raised in this respect by the NAB.”