Wednesday July 06, 2022

For a new system of accountability

August 23, 2020

A Persian proverb says that if a mason tilts the first brick, the building will be raised tilted right to the stars. This is true about the National Accountability Bureau.

Mir Shakil-ul-Rahman is incarcerated in a flimsy 34-year-old bilateral civil matter. Shahid Khaqan Abbasi was arrested in July 2019 but still no reference has been filed against him. It is not difficult for objective commentators and observers to agree that a usurper promulgated the National Accountability Bureau Ordinance 1999 for a witch-hunt against democratic forces. Laws based on the NAB laws and their practice has damaged our political system, business, civil service, state and society.

The honourable Supreme Court in a recent judgment has summed up this reality: “Rather than doing any good to the country or our body politic and cleansing the fountain heads of governance, these laws and the manner in which they were enforced, caused further degeneration and created chaos, since the same were framed and applied with an oblique motive of arm twisting and pressurizing political opponents into submission, subjugation and compliance, or remove them from the electoral scene at least temporarily…’

This expression of truth emerging from the Supreme Court cannot be stressed enough. It is high time to substitute the NAB law with a new law, inter alia, for the following reasons.

The NAB law was promulgated under Martial Law and it is there as a fait accompli. Successive governments could not change or amend it as they did not have either the will or the majority in both Houses, and consensus was felt to be necessary in order to avoid any problem or blame. A new accountability law, then, should be enacted after a thorough debate in the public, via the media and parliament.

In the NAB law the definitions given of ‘accused’, ‘associate’, ‘holder of public office’, ‘wrongful default’ are vague and wide. The definition of ‘corruption and corrupt practices’ also is too elusive. These need to be properly defined in a new law in light of constitutional guarantees, international best practices and case law as laid down by our superior courts.

Only the NAB chairman can order arrest, freeze property, transfer cases from one court to another, accept plea bargains and voluntary return, tender pardon and make approvers. All such powers being vested in a single person becomes a source of many a grave problem. All these powers should be vested in a commission consisting of members drawn from various specialties (law, accounts, investigation and administration).

The NAB chairman can appoint employees and consultants without the Federal Public Service Commission of Pakistan (FPSC), a constitutional body to select civil servants. These powers are not available even to the president of Pakistan. All such new appointments and promotions should be made by the FPSC and all existing appointments can be scrutinized by the FPSC within three months of the new law being promulgated.

The NAB law shifts the burden of proof from NAB to the accused persons against the well-established legal maxim about presumption of innocence, practised in the civilized world. The burden is sometimes shifted in white-collar crimes but the NAB law is badly worded and is being misused. In the new law, principles of ‘presumption of innocence’ and ‘onus of proof’ should be reflected in the interest of justice.

The disqualification of an accused from holding a public office starts from its first conviction. Right now, NAB court convicts a person, s/he is disqualified and de-seated and after a few years, s/he is declared innocent in an appeal. This disqualification for this intervening period is unfair, unjust and against natural justice. Therefore, disqualification should start from final adjudication of the matter by the final court.

The Code of Criminal Procedure, 1898, (Code) is the main procedural law applicable in all criminal cases including cases of murder and terrorism but the NAB court may dispense with any provision of the Code and follow such procedure as it may deem fit. This power is not available to a high court. This power should be taken away from the NAB court and the Code shall apply in the NAB proceedings.

When the NAB chairman has initiated an inquiry or investigation, the accused person or any relative or associate, cannot transfer or create a charge on any property owned by him, while the inquiry, investigation or proceedings are pending before the NAB or the court and any transfer or creation of a charge shall be void and any violation shall be punishable. This draconian provision ruins the whole business of the accused. This provision shall be limited to the property related to the alleged crime only and shall be dependent on the order of the court with an appeal to a high court.

Under normal criminal laws, an accused can be sent on physical remand only up to 14 days whereas under NAB law, an accused person can be detained for a period of ninety days. All the cases of NAB are based on documentary evidence; therefore, there is no need to detain a person for so long and so physical remand should be reduced to 14 days.

Where a holder of public office or any other person voluntarily comes forward and offers to return the assets or gains made by him (plea bargain and voluntary return), the NAB chairman may accept such offer, and discharge such person from all his liability. In practice, this is done under duress and coercion and, therefore, these powers shall be either taken away or shall be properly defined and linked with the court.

The NAB chairman may, at any stage of inquiry, investigation or trial, with a view to obtaining the evidence of any person, tender a full or conditional pardon to such a person who shall not be tried for the offence. The chairman may also withdraw this pardon. This power is usually misused and civil servants are coerced to become approvers against politicians. Interestingly, such approvers though admit their guilt but are allowed to continue their services without even efficiency and disciple proceedings. The pardon procedure should be as it is stipulated under the Code.

NAB employees may be paid by the chairman bonuses or ex­-gratia payments for rendering commendable services in detection, investigation and prosecution of any offence. How can an investigation agency get such rewards and if so then why tonly NAB? This scheme should be scrapped all together.

NAB has an indemnity from any civil suit, prosecution etc, while exercising any power or performing any function whereas the police do not enjoy any such indemnity; the police in fact have a penalty of five years under section 156 of the Police Order 2002 if a police officer without reasonable cause, enters or searches; or seizes the property of any person; or unnecessarily detains, searches or arrests any person etc. Similar provision should also be added in a new law to match the accountability with responsibility.

All the offences under the NAB law are non-­bailable and no court, including the high court or the Supreme Court, has jurisdiction to grant bail to any person accused of any offence – though bail is available in murder or terrorism cases. It is a common practice that NAB-accused persons languish in jails for many years and are then acquitted. The courts should have the power to grant bail.

The NAB law and its application so far make it abundantly clear that it is against the time-tested principles of criminal law, international best practices and inalienable human dignity. It should be repealed henceforth with and a new institution established under a better law.

The writer is a former SAPM/minister for law and a barrister.