The accountability syndrome

The doctrine of separation of powers demands that the legislature, executive and the judiciary must work within their boundaries. In Pakistan, though, we see interventions from everywhere in every aspect of governance; and all this happens in the name of discretion.

The unprecedented powers given to the NAB chairman under the NAB Ordinance ,1999 is a continuation of the same story. The NAB (National Accountability Bureau) Ordinance 1999 can be printed on eight pages (both sides). It has 37 sections, and the word ‘chairman’ has been used 93 times in the ordinance. The discretion of the chairman somehow gives the impression that the whole department of NAB has no capacity, capability and credentials and only the chairman is its saviour and all responsibility rests with him. Question: can this be the model for any country in the 21st century?

The NAB chairman’s discretion in appointments in the Bureau is a serious detriment to the system and notion of fair play. It is contrary to articles 240 and 242 of the constitution. Article 240 of the constitution deals with appointments to the service of Pakistan and sets out the conditions to make such appointments through the Public Service Commission. Similarly, Article 242 of the constitution states that appointments in the service of Pakistan will be made through the Public Service Commission. How can appointments at serious and senior levels without any set qualifications and requirements be made then?

The sort of discretion vested in the chairman NAB’s powers is pretty huge. Discretion is necessary in criminal law matters but certain precedents have to be taken into account. Subjective and objective rationality tests must be applied in exercising these powers. For instance, take the power to arrest: in Mir Shakil-ur-Rahman’s case: he was arrested at the very first verification of the complaint stage. Former PM Shahid Khaqan Abbasi and former minister Ahsan Iqbal were arrested during the enquiry stage. Then, some people have been arrested during investigation and many people have never been arrested even at the reference and trial stages.

The question is: if the accused is fully cooperating with the NAB officials during the inquiry and investigation stages then why would s/he be arrested? The NAB chairman’s use of the power to arrest raises serious concerns as it is in direct contradiction to Article 10 of the constitution of Pakistan. It has already been decided, admitted and accepted that the constitution of Pakistan is supreme and takes precedent on all matters concerning Pakistan.

Usually, when one is called by NAB, as an accused or as a witness, the investigation officers don’t inform one about the complaint. Instead, they ask about one’s assets, businesses, list of properties – and then they start asking about the money trail and paper trail etc. They further ask questions about one’s relationships, parents, and relatives – even from a time before the birth of the person being questioned. Why not just stick to the allegation they have called someone in for? In fact, mostly people never know the allegation right till the end or even until the reference is filed.

According to NAB Ordinance Section 18 (h), a frivolous complainant will be punished by one year in prison and a fine. Section 36 of the same ordinance provides indemnity to NAB officials for their investigations if they act in good faith. By these mechanism, inquiries and investigations must be concluded within a specific time-frame, according to NAB’s recent codes presented to the Supreme Court under its July 23, 2020 order.

If one does know the allegation against oneself, and can show the investigation officer who acted in good faith that the allegation is frivolous then Section 18 (h) must become mandatory and operative against the complainant or chairman or whoever initiated the complaint; this will be done under Section 18, subsections a, b, c, d, e, f and g. This is the minimum compensation and must be available to the person whose way of life has been disturbed with these frivolous allegations. Such allegations include alleging one has assets beyond means; misuse of power, embezzlements of funds – points so vague in nature that they can go on forever. What is needed is specificity.

In the modern corporate world, a chairperson exercises non-executive functions. The chairperson’s role exists so that the body is supervised by someone who discharges their duties in order to uphold impartiality and fairness within that system. The executive’s functions rest with the executive directors or CEOs. Moreover, there is also no external oversight body over NAB, let alone a strong internal complaint mechanism. The first and last resort for those who feel their constitutional rights have been infringed is to seek relief from the high courts.

Judicial practices in granting pre-arrest bails also need precedent setting. For instance, the Sindh High Court grants pre-arrest bail in NAB matters as a routine whereas the Lahore High Court normally does not. Lahore High Court judges normally do not give serious considerations to Sindh High Court decisions and vice versa. Judges at our high courts usually demand precedents from the Supreme Court of Pakistan and do not consider other high courts’ decisions. For the administration of justice, application of law has to be uniformed and this is also supported by the doctrine of precedent. Arguments of rationality and proportionality must take precedent in all matters concerning fundamental human rights, which are not only guaranteed to us by our constitution but by our religion as well.

The Supreme Court of Pakistan must address this matter and settle it across all jurisdictions in Pakistan so that further miscarriage of justice is avoided. The NAB Ordinance has already incurred serious injustice, strongly reflected in the low conviction rates in NAB cases.

Unfortunately, in Pakistan most state departments lack internal procedures, governance structures, code of practices, internal complaint procedures and professional management. For instance, take any department/ministry of the federal/provincial government: the secretary of the department has powers that are almost unquestionable, and will only be questioned once the said secretary appears in front of the higher courts. The secretary is the principal accounting officer, and will initiate proposals, allocate funds, make transfers and appointments within the department, approve projects, and prepare proposals for the budget etc. There are joint secretaries, additional secretaries, deputy secretaries and countless other officers in that concerned ministry, but the buck stops with the secretary.

In India and the United Kingdom, the minister is the chief executive of the department and the reason for that is democracy – representative democracy by the people and for the people. That is when accountability and public representatives always go through more scrutiny than anyone else. The NAB Ordinance and the NAB chairman are being highlighted more because of fundamental human rights breaches. Otherwise, the whole country is obsessed with power, which ultimately means discretion without checks and balances. How much discretion do we need to make this country a place we feel proud to be part of?

Any country that is seen as prosperous and peaceful also has a strong mechanism of accountability. No one can deny the importance of accountability in any democratic system. In Pakistan, we need system-based accountability not discretionary accountability. It has to be in line with rule of law and fundamental human rights. [In fact my father – who has been associated with the PML-N since the 80s – has for the last two years been facing inquiry and investigations against him by NAB. We will fully cooperate with NAB. In fact, I have been to the NAB office as a witness in my father’s case, although I have never worked in my father’s office, have never held or desired any public position nor been involved in any government activity whatsoever concerning public funds. But I assured my full cooperation to the NAB officials.]

There is a universal principle that you are presumed innocent until proven guilty. As a society, we must respect and uphold this principle. In the civilized world, prosecution agencies do not investigate by incarcerating people or torturing them. There are established universal sets of rules, principles and practices we must consider. We are not against accountability; in fact, we need strong accountability whereby a public office-holder must be held accountable. After all, that was the vision of our founding fathers.

The writer is an entrepreneur.