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January 14, 2021

Accountable to no one

Opinion

January 14, 2021

What the Broadsheet case has exposed about the workings of the National Accountability Bureau (NAB) is just the tip of the iceberg. The Bureau’s two-decade history is full of examples of mega corruption scandals, illegal appointments, misuse of authority and inhuman treatment which in most cases have never been investigated. NAB officials and top management, both past and present, have enjoyed absolute impunity, without any fear of being held accountable.

In May 2000, the then NAB Prosecutor General Farooq Adam had told the Supreme Court after seven months of the illegal detention by NAB of Siddiq-ul-Farooq (a political appointee during Nawaz Sharif’s second term) that he had been “forgotten after being dumped somewhere as we (NAB) were occupied by other important matters". NAB had also admitted that Farooq had been under NAB detention without even the registration of an FIR for seven months. However, no action was taken against NAB by anyone; the Supreme Court did not move against NAB nor was any inquiry ordered.

Recent reports of cases involving Broadsheet, which have caused a loss of billions to the public kitty because of NAB’s failures, have not only exposed the incompetence and mendacity of the Bureau but unearthed a scandal where $1.5 million (Rs240 million) were paid to the wrong person in 2008.

Amazingly, no inquiry was ordered, no one was arrested to punish those who had authorised this huge payment by NAB to the wrong person while attempting to broker a settlement with Broadsheet LLC in 2008. The firm went into arbitration after learning about this, which resulted in a penalty of $28.7 million.

In May 2008, Pakistan negotiated a settlement agreement with Jerry James who was once a part of Broadsheet. Broadsheet, which was set up in the Isle of Man (IOM), went into liquidation in March 2005 as it owed substantial debts to its various service providers. Meanwhile, NAB had terminated its agreement with the company in 2003.

A businessman based in Colorado in the US, James was originally part of Broadsheet but wasn’t authorised to negotiate after its liquidation. He formed a new company in Colorado with the same name, Broadsheet LLC, and represented it as the successor of the dissolved company – which it was not. The fraudulent deal was completed by his entering into a sham settlement agreement on May 20, 2008 for the sum of $1.5 million which purported to settle any and all claims of Broadsheet against NAB. The settlement agreement and James’s affidavit were riddled with false and deceptive statements. However, despite all this there are no signs today about who will hold an inquiry against NAB in this matter or whether there will be any probe at all.

Broadsheet, which has already been paid Rs4.5 billion from Pakistani taxpayers’ money, has now approached NAB for an additional sum of $1,180,799.66, saying this amount had accrued on a NAB client’s judgment debts prior to the receipt of funds from the United National Bank.

Broadsheet’s lawyers at Crowell & Moring have written to the NAB lawyers that their client had “previously communicated its intention to satisfy its liabilities in full. Please kindly confirm that your client will pay our client the sum of $2,100,000 (Rs337 million) without further delay”. Had this been a case of any other government department, NAB would have so far made several arrests on charges of corruption and misuse of authority causing a loss of billions of rupees.

NAB has also quietly paid a sum of $2.25 million (Rs360 million) to yet another asset recovery firm that was hired to dig out details of the late Benazir Bhutto, Asif Ali Zardari and others after NAB prematurely terminated its contract with it.

In 2000, when M/S Broadsheet LLC was hired to go after 200 target individuals, M/S International Assets Recovery (IAR) was contracted to look for the fortune of the Bhutto family that, NAB suspected, was stashed in different secret jurisdictions across the globe. However, NAB broke with both the firms in 2003 without following due process, resulting in efforts to pre-empt litigation through settlement agreements.

In another case in 2013, a serving NAB officer in his statement submitted before the Supreme Court stated how his senior management had been interfering in an Ogra case and was giving a reference of his and the then NAB chairman Fasieh Bukhari’s meeting with the then prime minister. It was also said that a NAB officer, whose sudden death is shrouded in mystery, was under pressure to sign a backdated affidavit about a corruption case involving the then prime minister. In that case too, no NAB officer was handcuffed, jailed or even probed.

The News had also unearthed a unique scandal in the history of Pakistan’s criminal justice system – the copying of judgments in two different high-profile corruption cases, SGS, Cotecna and ARY Gold, by different accountability courts. However, that case too was ignored and no one has been punished for the scandal. This issue not only relates to the alleged serious misconduct of the judges involved but also pertains to the finality of the cases decided in favour of the influential accused in a dubious manner.

What is really surprising is that, despite having been established that a serious wrong was done: (i) the concerned judges were allowed to retire with full pensionary benefits; (ii) the corruption cases which were decided in a controversial manner were never retried; (iii) no inquiry was ever ordered against NAB and its officers who had managed and facilitated the scandalous decisions.

Everyone adopted a ‘see nothing, say nothing, hear nothing’ policy despite the fact that the Lahore High Court’s inquiry into the scandalous judgements of two different accountability court judges in three high-profile corruption cases, including SGS and Cotecna, were clearly serious scandals.

Handed down by an Accountability Court in Rawalpindi in 2011, the Cotecna judgement was almost a replica of the SGS case order issued by another Rawalpindi Accountability Court. Not only did both the judgements conclude in the same way but they surprisingly contained innumerable similar words, expressions and even paragraphs. In the academic world, this would be considered a perfect case of plagiarism.

Similarities apart, the two judgments on the SGS and Cotecna cases were signed by two different judges of two different courts. The SGS judgment was issued by Accountability Court No II whereas the Cotecna case judgment was issued by Accountability Court No III.

After The News broke the story in September 2011, the matter was referred to the Lahore High Court, which initiated an inquiry against the two accountability court judges after an LHC Inspection Team had endorsed The News report. The report was referred to the Inspection Team, which found “impressions of deja vu” in the two judgments following which the LHC had ordered a formal inquiry against the two judges. However, during the course of the inquiry, the two accountability court judges attained the age of retirement, which resulted in the closure of the inquiry.

Their retirement conveniently helped the two judges avoid facing a possible penalty. More importantly, the controversial judgements in those cases have not yet been set aside. NAB had also avoided going into appeal against these judgments.

The SGS case judgment was handed down on July 30, 2011, whereas the Cotecna case order was handed down on September 16, 2011. The similarities between the two judgements were surprising and unbelievable despite the fact that the two references remained separate from the very beginning.

The judgments of the ARY Gold reference and the SGS reference had exposed some strange anomalies. The most conspicuous of these was the acceptance of former secretary finance and the then executive director as prosecution witness in the SGS case while the same individual was declared by the same court in the ARY Gold reference as a proclaimed offender.

In the NRO cases – after they were revived following the SC’s order which had nullified the NRO – it emerged that during the previous PPP government NAB had tried to get the influential accused in the NRO cleared by offering a friendly NAB prosecution. These cases were repeatedly highlighted but no one ever bothered to initiate a probe against the dubious role of NAB.

Former Chairman NAB Lt Gen (r) Shahid Aziz had even admitted that General Musharraf had directed him to close investigations into certain major corruption scandals, including those against the sugar and oil mafias and even the multi-billion dollar stock exchange scam. The former chairman’s admission clearly showed how NAB has been manipulated by successive rulers for their vested interests and in violation of what the NAB law says. Such cases fall in the category of misuse of authority but no one from NAB has been tried and punished by anyone.

It is only the Supreme Court of Pakistan that has regularly uncovered a host of misdemeanours, such as illegal appointments, cases of fake degrees and illegal promotions in NAB. These illegal appointees included those of senior officers of the level of director-generals. However, unlike what NAB itself does to others in the case of illegal appointments, no one in the Bureau has been handcuffed, jailed or even faced any independent investigation for making illegal appointments and for misusing their authority – allegations under which the Bureau put dozens behind bars for months and years without conviction.

There are also tales of missing NAB case records that led to the acquittal of many high-profile accused. A few years ago, Asif Ali Zardari was acquitted in both the SGS and Cotecna corruption cases, partly because the original records of the cases went missing and could not be found. In fact, the cases were eventually decided on the grounds that the original record could not be produced before the court.

The NAB authorities at the time maintained that the judge of the accountability court “did not pay any heed to summon” the original record from the office of the Supreme Court. In his verdict, the accountability court judge, however, noted that the prosecution had failed to produce “the best evidence”. The judge stated: “If the best evidence is withheld, then an adverse presumption can be inferred.”

Again in this case, no independent investigation, no inquiry has been ordered against anyone in NAB to punish those responsible.

Tragically, several NAB accused have either committed suicide or died in the Bureau’s custody in the last two decades because of the treatment meted out to them or because they were depressed for being depicted through media trials as ‘corrupt’ on the basis of mere allegations. But here too NAB's tactics have remained blithely unchanged and never properly scrutinised. One can only conclude that the body created to hold others accountable is ironically itself accountable to no one.

Twitter: @AnsarAAbbasi