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January 14, 2021

IHC ruling Grave, gross misuse of authority sans corruption doesn’t attract NAB law


January 14, 2021

ISLAMABAD: Misuse of authority, no matter how grave and gross, does not constitute an offence under the National Accountability Ordinance (NAO) unless it involves mens rea [criminal intent] and conscious knowledge or a guilty mind, the Islamabad High Court (IHC) has ruled.

Mere 'misuse of authority', no matter how grave or gross in nature, would not be sufficient to constitute an offence under section 9(a)(vi) [of the NAO] because the unambiguous language used by the legislature makes the existence of the other ingredients a precondition, the judgment handed in the Nandipur Power Project case stated while upholding the acquittal of Adviser on Parliamentary Affairs Babar Awan and former law secretary Justice (retd) Riaz Kayani by an accountability court.

The verdict authored by Chief Justice Athar Minallah noted that there was no allegation in this case of gaining any favour or benefit personally or having extended it to others. It also appears from the record that NAB was confused as to whether it was a case of misuse of authority or failure to exercise it.

It said that the intent of misuse of authority by a public office holder must be to gain a benefit or favour personally or for another. Rendering or attempting to render such gain or benefit would also fall within the ambit of the offence. Gaining any benefit or favour, either by the public office holder vested with authority or for any other, is a precondition for constituting an offence under section 9(a)(vi).

Likewise, the verdict said: “In the case of the other distinct part of the offence, the existence of the ensuing consequence flowing from failure to exercise authority is a prerequisite for the criminality of the omission. The intent of failure to exercise authority must be facilitating the grant or rendition of any undue benefit or favour which could have been prevented if authority had been exercised.”

The ruling expected that NAB will devise a mechanism to ensure that the atmosphere of fear of accountability is only for the corrupt while no one accused of having misused authority sans corruption and corrupt practices is exposed to the rigors, hardship and humiliation of being summoned or dealt with as an accused. “It is an obligation of NAB to demonstrably show through its conduct and proceedings that it appreciates and acknowledges the distinction between misuse of authority and corruption and corrupt practices.”

It also expected that NAB will ensure the exercise of extreme caution and care while dealing with cases that do not involve an obvious element of corruption and corrupt practices.

The onus is on NAB to dispel any perception of fear amongst the bureaucracy and to assure that the bona fide decision-making process would not expose any bureaucrat to the stigma or humiliation of proceedings under the NAO, the judgment said.

It said that many bona fide decisions may be contrary to law or reflect departure from known precedents and thus technically amount to misuse of authority. Bureaucrats are humans and thus they can also err in taking decisions or actions but these would not necessarily attract criminal liability. Creativity, flexible thinking, ability to take initiatives and decisions are essential attributes of a bureaucrat in order to perform functions and duties, it said.

However, the decision said, if the accountability process fails to make a distinction between mere misuse of authority or the failure of its exercise on the one hand and corruption and corrupt practices on the other then it would inevitably lead to creating a culture of fear. Such fear is definitely debilitating and has a negative effect on the governance system. It obviously discourages the bureaucracy from being creative and prevents individual bureaucrats from effectively performing their duties and functions, which obviously is not in the public interest and consequently affects the constitutionally guaranteed fundamental rights.

The ruling said that in such an eventuality, bureaucrats are unable to contribute towards ensuring good governance. It is an onerous duty of NAB to exercise its powers vested under the NAO in such a manner that the corrupt fear being held accountable while the honest are not only treated with respect but they are assured that their dignity, honour and self esteem will not be prejudiced or harmed in any manner.

According to the judgment, it cannot be ruled out that fear amongst the bureaucracy of being exposed to proceedings may have been the likely cause of the delay but there is nothing on record to even suggest a guilty mind or existence of mens rea let alone fulfilment of the ingredients of the offences alleged to have been committed. It was definitely not a case which justified filing of the reference or taking cognizance by the court. It is in the public interest to protect the governance system from arbitrary exercise or abuse of powers vested in NAB.

Nonetheless, the verdict said, in case the process of accountability is not administered with caution and strictly within the parameters prescribed by the legislature, it can cause irretrievable harm to the governance system and affirm the concerns regarding paralysis of the state machinery observed by the Supreme Court. If those who administer the process fail to distinguish corruption and corrupt practices from wrong, improper or irregular misuse of authority, the consequences could be fatal for the governance system.

The entire case related to the bureaucratic decision-making process and there was no involvement of corruption and corrupt practices in the context of the offences described under section 9(a), the ruling said. The proceedings must have exposed the accused arrayed in the reference to unimaginable agony and humiliation besides causing reputational damage.