Protect governance system from NAB’s abuse of power against bureaucracy, IHC orders

ISLAMABAD: In the Nandipur judgment handed down by the IHC recently, the court underlined that it is in the public interest to protect the governance system from the arbitrary exercise or abuse of powers vested in NAB.

Authored by IHC Chief Justice Athar Minallah, the judgment urged upon the need for striking a balance between safeguarding the legitimate interests and rights of the bureaucracy on the one hand and, on the other, achieving the objectives for which the NAB Ordinance of 1999 had been promulgated and the Bureau was established.

“It is in the public interest to protect the governance system from arbitrary exercise or abuse of powers vested in the Bureau. We have repeatedly stressed the importance of having an effective and efficient accountability process and mechanism because that is an integral part of a democratic system and a precondition for upholding the rule of law. No doubt corruption is one of the biggest evils which destroys the governance system of a country. It consequently affects the economic development and the most vulnerable and downtrodden are the worst victims. Even the perception of corruption is intolerable in a society governed under the Constitution,” the judgment read.

It added, “Nonetheless, 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 august Supreme Court in the case titled ‘Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others’ [PLD 2001 SC 607].”

The judgment said, if those who administer the process fail to distinguish corruption and corrupt practices from wrong, improper or irregular misuse of authority then the consequences could be fatal for the governance system. “As already noted, misuse of authority, no matter how grave and gross, does not constitute an offence under the Ordinance of 1999 unless it involves mens rea and conscious knowledge or a guilty mind.”

The court explained that the bureaucracy constitutes the permanent and professional part of the executive branch of the state. It has a pivotal role in the governance of the country and in assisting the chosen representatives in the process of policy formulation. Governance refers to the process of decision-making and the mechanism through which the decisions are implemented. Every bureaucrat is expected to take numerous decisions and actions every day.

It added, “Many decisions bonafidely taken may be contrary to law or reflect departure from known precedents and thus technically amount to misuse of authority.

The bureaucrats are humans and thus they can also err in taking decisions or actions but it 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. However, if the accountability process fails to make a distinction between mere misuse of authority or failure of its exercise on the one hand and corruption and corrupt practices on the other than it would inevitability 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 public interest and consequently affects the constitutionally guaranteed fundamental rights. In such an eventuality they are unable to contribute towards ensuring good governance.

“It is an onerous duty of the Bureau to exercise its powers vested under the Ordinance of 1999 in such a manner that the corrupt fears 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,” read the judgment.

Referring to the Nandipur case, it stated that 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) of the Ordinance of 1999.

“We expect that the Bureau will ensure the exercise of extreme caution and care while dealing with the cases which do not involve an obvious element of corruption and corrupt practices. We further expect that the Bureau will devise a mechanism to ensure that the atmosphere of fear of accountability is only for the corrupt while no one alleged to have misused authority sans corruption and corrupt practices is exposed to the rigors, hardship and humiliation of being summoned or dealt with as an accused,” the judgment said, adding, “It is an obligation of the Bureau to demonstrably show through its conduct and proceedings that it appreciates and acknowledges the distinction between misuse of authority and corruption and corrupt practices. The onus is on the Bureau to dispel any perception of fear amongst the bureaucracy and to assure that bona fide decision- making process would not expose any bureaucrat to the stigma or humiliation of proceedings under the Ordinance of 1999.” Referring to clauses (vi) and (xii) of section 9(a) and item 5 of the Schedule, the LHC said that the offence under clause (vi) of section 9(a) has two distinct categories. The first is in the context of 'misuse of authority' while the other becomes operative when a public office holder fails to exercise his or her authority.

“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) because the unambiguous language used by the legislature makes the existence of the other ingredients a precondition. The intent of misuse of authority by a public office holder must be to gain any benefit or favor 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 pre-condition for constituting an offence under section 9(a)(vi).”

It added, “Likewise, 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.”

It said that the controlling part of section 9(a) explicitly makes the offences relatable to corruption and corrupt practices. “Thus clauses (i) to (xii) of section 9 (a) cannot be interpreted independently i.e. excluding or ignoring the expression 'corruption and corrupt practices’ explicitly used in the controlling part. Clause (xii) of section 9(a) would be attracted only if the ingredients of the offences described in one of the clauses in section 9(a) are fulfilled, such as clause (vi) in the case in hand. The offence described under item 5 of the Schedule is in respect of loss caused to the entities mentioned therein. However, such loss would only become a criminal offence under the Ordinance of 1999 if it is caused due to deceit, fraud or dishonesty. Merely causing loss, regardless of its quantum, would not constitute a criminal offence.”