Flaws in the National Accountability Ordinance (Ordinance Number Xviii of 1999) – Scrutiny and Analysis
Before we dive into the intricacies of the dreaded Ordinance, we must understand its historical inception. This background knowledge is important for us to understand that this law has its basis in injustice and therefore cannot lead to anything better or even anything closer to the much idealized notions of eradicating corruption that the institution which has brought it to life claims (i.e. the National Accountability Bureau).
To set the basis of this argument, I shall, throughout this piece of writing, simply identify gaps, flawed legal concepts and the lack of understanding of basic values of natural justice in the legislative marvel that has plagued Pakistan’s public office holders or anyone who might be interested in acting as defense counsel in a NAB case. We will then be able to form our opinion about it and decide for ourselves whether or not it is indeed needed. We would also be able to understand the basic direction it might lead us to, especially if it remains unamended or not in force altogether.
The scope of this publication shall be limited to section 1 – section 14 as well as powers of arrest of the NAB Chair i.e. section 24. Since this is not meant to be a legal dissertation, it is aimed to provide a general scrutiny without offering solutions.
As stated, the main purpose of the Ordinance seems to be the eradication of corruption and corrupt practices. In what seems to be the preamble, it is stated that the purpose behind the enactment of the law is to provide effective measures for:
“…the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, 1[misuse or abuse] of power 2[or authority], misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto…”
Stress must be laid on the purpose because it seems to lay out certain foundational notions regarding the purpose of the law, however, as will be discussed later, it fails to set standards which are either procedural or theoretical and would allow it to be used effectively to curb corruption and corrupt practices without compromising on international standards of justice or justice in any shape whatsoever.
Historically, it must be stressed this law was created as a product of the coup d’état which established the military regime of General Musharraf in 1999 to target politicians and people who were against his regime. This was done rigorously and in a rather draconian way. Even though a lot of case-law is present on the matter, the preamble itself states the following:
“AND WHEREAS the National Assembly and the Senate stand suspended in pursuance of the Proclamation of the fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, as amended;
AND WHEREAS the President is satisfied that circumstances exist which 1[render] it necessary to take immediate action;
NOW THEREFORE, in pursuance of the aforesaid Proclamation and Provisional Constitutional Order as well as Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance.”
The fact that the National Assembly and Senate stood suspended on 14th October, 1999 testifies that the law was created after a violation of the constitutional government. However, the situation seems graver where it is stated that the law was created without any debate, rather based on Presidential discretion alone.
Understanding the Legislative Intent Behind the Retrospective Nature of Section 2
The foremost example of this discretional promulgation can be found within the law itself as it is deemed to have come into effect in 1985, according to section 2 which states the following:
“This Ordinance shall come into force at once and shall be deemed to have come into force from the 1st day of January 1985.”
This section makes it a retrospective law, hence against the expositions of natural justice. This was done to entangle the then recently ousted (1999) ex-Prime Minister Nawaz Sharif, who had also been made the Chief Minister of the province of Punjab in 1985. Therefore, the very inception of the law in 1999 and the making of it as a retrospective law having effect from 1985 shows ill intent behind its creation. This malicious intention has not only been aimed at the then-ousted Prime Minister but it has been, since then, applied to numerous individuals who have dared to raise even a voice of criticism to laws that are promulgated by the state regardless of the promulgator’s job description. This also leads to the inevitable curtailment of the right to free speech/expression and numerous other rights which are synonymous with the concept of a modern state, as well as other inviolable rights afforded by the state to its individuals.
Definitional Flaws in Section 5: Exclusion of Armed Forces Personnel
Along with numerous flaws in this section, the most noteworthy are those that can be found in s.5(m)(iv) which defines a “holder of public office”. Further signs of military origins can be found here as well as the section excludes the accountability of serving military officers in the following words:
“…other than a person who is the member of the armed forces of Pakistan.”
This may also reflect a targeted approach towards any civilian government (emphasis on “any” civilian government). This can lead to instability in the existing state of affairs which are already not very stable, by allowing the law to be used whenever the need arises and against anyone who does not conform. This is the wrong approach because it denies accountability across the board and targets a specific class, leading to injustice which further leads to the marginalization of particular individuals who may not even be corrupt in the first place.
To be fair, as a consolation according to s.5(m)(vi), the law does apply to retired personnel of the armed forces and those who have retired, hence retaining the meaning of “holder of public office” for them.
Decadence in the Appointment of the Chair, Deputy Chair and Prosecutor General Accountability (sections 6, 7 and 8)
The President would have to appoint the NAB Chair in consultation with Leaders of the House and the Opposition according to section 6(b)(i) “on such terms and conditions as may be determined by the President”. This procedure shows a tilt towards the old presidential system or, aptly put, the dictatorial regime, in which the dictator was the President. The effect of the dictatorial discretion, however, has been reduced (through the consultation procedure and amendment in the law), yet the ultimate discretion to decided terms and conditions lies in the hands of the President. There is no set procedural framework that lays down how consultation is to be made, which can lead to uncertainty and an unjust outcome such as appointment on the basis of political whim and favouritism rather than merit or fairness.
The same case can be made out regarding the appointment of the Deputy Chair of NAB who shall be “… appointed by the 4[President] in consultation with the NAB Chair” according to s.7(a). Needless to say, this is purely discretionary because the NAB Chair is, in accordance with the Ordinance, most likely to be discretionarily handpicked by the President, leading to more uncertainty in the appointment.
It is stressed that the same appointment setback can also be identified under s.8 regarding the appointment of the Prosecutor General Accountability who is to be appointed by “…the President of Pakistan, in consultation with the 2 NAB Chair”. A presidential, rather dictatorial discretion is clearly visible here.
Definition of Corruption and Corrupt Practices (s.9)
According to this section, a holder of public office or any other person is said to commit or to have committed the offence of corruption and corrupt practices in about 12 ways which are scrutinized below:
- Firstly, 9(a)(i), to summarize, deals with gratification other than legal remuneration which can may be obtained directly/indirectly as a motive/reward for doing/bearing to do any official act or showing/bearing to show favour or disfavour in the exercise of official functions or rendering or attempting to render any service or disservice to any person. This is practically anything on earth that would be done by a politician or a bureaucrat in the normal course of business. The underlying problem here is not that the intention behind the law is flawed, the issue is that this definition is too wide and it only applies, as defined in the Ordinance, to practically anyone in the country. It would not be an overstatement if it is said that a Member of the National Assembly or Member of the Provincial Assembly, before the enactment of this law, should have been barred from meeting anybody in their constituency if the law was promulgated to ensure justice, however, it was not and that is exactly the argument. This is an understatement because it is practically impossible to disprove that such gratification was not obtained. Litigation, rather investigation in such cases would be synonymous with the opening of floodgates since it could be used to target anyone without any cogent evidence.
- Section 9(a)(ii) criminalizes the accepting or offering of “any valuable thing” without consideration or inadequate consideration which a person “knows” to be inadequate, from “any person” who he or she knows, to anyone who is likely to be concerned in any proceeding or business transacted or about to be transacted by him or her, or having any connection with his or her official functions, or from any person he or she knows to be interested in or related to the person so concerned. This again is a very wide-ranging definition because it even extends to the relatives of a concerned person and hence might be misused against relatives who have no contact with the accused person at all. A more worthy criticism can be made of the fact that consideration in the section depends on having the “knowledge” which is very hard to prove and is usually dependent on inferences which may be mistaken and lead to injustices when the law is applied. Such logical tools may even be aimed at an honest official with the mala fide intention to malign or downplay their reputation, the purpose of which could be to pressurize the individual. This would lead to a negative consequence which could develop into much bigger issues than the one in sight. Furthermore, “any valuable thing” is not defined, leaving room for interpretation. While interpretation does give flexibility, however, it also leaves room for miscarriages of justice.
- Section 9(a)(iii) deals with dishonest or fraudulent misappropriation or conversion or use of any property entrusted to the concerned officials and under their control, or willfully allowing any other person to do so. This is again a blitz of restrictions that can be applied to anyone holding a public office because “property entrusted to them” knows no bounds. There is also no set procedure on how such an act is to be reported in the first place, which creates space for more prosecutorial, judicial and political discretion and gives rise to elements against the basic notions of justice.
- 9(a)(iv) deals with seeking to obtain for oneself – or for a spouse3 or dependents or any other person – any property, valuable thing, or pecuniary advantage, by corrupt, dishonest or illegal means. The law at the same time lays down no definition for any of the “corrupt”, “dishonest” or “illegal means”. To restate previous arguments, this is a gap which can be and has already been exploited in numerous situations.
- 9(a)(v) deals with the ownership/possession/ acquired rights or title of dependents or benamidar of any assets/power of attorney in respect of the assets/pecuniary resources which are disproportionate to the person’s known source of income, or for maintaining a standard of living beyond what is commensurate with the source of income. This section does not take into consideration any legal means of acquiring assets which are beyond the known sources of income, such as inheritance, gratuitous gifts by relatives or beneficial ownership of properties or trusts which might later be acquired. “Known source of income” has not been defined which makes room for an old nemesis of justice and equity to make way: that is discretion.
- 9(a)(vi) deals with misuse of power to gain any benefit or favour for oneself or any other person. It can be criticized in the same way as the sections above. It has no positive legal value of its own and just expands the bounds of the Ordinance to “any benefit or favour” (a phrase open to interpretation).
- 9(a)(vii) deals with the issuance of directives/policy/ SRO or any other order which grants or attempts to grant any undue concession or benefit in a taxation matter or law or otherwise, so as to benefit oneself or any relative or associate or a benamidar (or any other person). This part of the law seems to target the abuse of power, which is a good thing, however, it needs to be stressed it that it ignores any “amnesty schemes” that the government has introduced to benefit the state by widening the tax net. Instead, it only focuses on the negative aspect that such schemes might have. It does not fail to criminalize the practice of introducing such schemes to benefit one’s relatives but it does ignore the fact that such schemes or laws might be made in practicality to serve the interests of the state. Who is to decide the contrary? This part of the law seems to based on mere notions of political victimization, given that the evidentiary requirements of the section have not been defined.
- 9(viii) criminalizes willful default which is defined in s.5(r). This is probably the most sensible area of the legislation because most of the “terms” are defined. However, even in this area there is a deficit of “procedural” definitions so even a logical face of the law is very open to debate each time a case is brought up.
- Section 9, subsections (ix), (x) and (xi), all three refer to various sections of the Pakistan Penal Code 1860, therefore, it is assumed that the procedure laid out in the Criminal Procedure Code is to be followed. However, there remains uncertainty, which is synonymous with discretion for the purposes of our argument.
Gross Violation of the Right to Bail and Presumption of Innocence (s.9(b))
With reference to s.9 (b), it can be stated, firstly, that there is a spelling error: “non-boilable” should be “non-bailable”. This section makes the offences committed under the Ordinance non-bailable, taking away power even from the courts. It needs to be stated here that there is a presumption in favour of bail under international law, especially British law and a great majority of laws that are promulgated, unless the sanctity of the legal procedure is violated or if it is a case of murder or manslaughter. Even in murder and manslaughter cases, in accordance with British standards bail can be granted in “exceptional” circumstances, while European standards dictate that a “right” to bail remains even in such cases. It is beyond legal theory that such a right has been curtailed by this Ordinance. What is an individual to do if he or she has been caught and thrown in jail without any substantial evidence against him or her and merely on the basis of a suspicion that he or she might have been involved in corrupt practices/ corruption? Does an individual’s liberty have no value in this country? Is corruption a graver, more sinister crime than taking an innocent persons life? What were they thinking when this law was made? These are questions nobody is willing to answer regarding this law and any other law that is way beyond legal theory or justification, therefore such laws are deemed to be draconian, dark and blind.
Indefinite Period of Investigation – Against Natural Justice
Adding more weight to the previous arguments, s.9(c) states that after the investigation of an offence against a holder of public office or any other person, if the NAB Chair is satisfied that no “prima facie case” been made out against a person and it may be closed, the matter can then be referred by the Chair to a court for approval and for the release of the accused if in custody. This is an undue power allotted to the Chair because it sets out no time period for the investigation, hence making it indefinite and against the values of natural justice as well as a burden on resources. There is also no legal definition of a “prima facie case” in the sense of saying “for sure this is what we were not looking for”, hence it is an identifiable gap.
Punishment for Corruption and Corrupt Practice: Extortionist?
According to s.10, the maximum sentence laid out in the Ordinance for punishment of an offence committed by a holder of public office or any other person who commits the offence of corruption and corrupt practices, is 14 years in prison and a fine, along with a forfeiture of assets to the appropriate government or concerned bank or financial institution, as the case may be.
To say that the punishment set out by the Ordinance is extortionist would be an understatement. In the UK, when the maximum punishment for bribery and corruption under the UK Bribery Act 2010 was set to 10 years, it was labelled as grossly miscalculated and a very harsh punishment in comparison to similar international law compulsions imposed by the Organization for Economic Co-operation and Development (OECD) and the same Act was considered to be a far more draconian law than the United States Foreign Practices Act 1977.
Imposition of Fine – Lacks Legal Definition (s.11)
S.11 of the Ordinance deals with the imposition of fines and it can be said that it lacks wholly, a mechanism to decide how a fine is to be imposed. It just lays out the following:
“Where 4[an accused] found guilty of an offence is sentenced to pay a fine,5 the amount of the fine shall in no case be less than the gain derived by the accused or any relative or associate 6 [by the commission of the offence].”
How is it deciphered that the accused is found guilty? Will this be done by investigation alone? How can such an investigation be seen as reliable when it is initiated without any proper charges? Who is to impose such a fine? Is the Chair omnipotent? Can the Chair select anyone, put them under investigation and keep them locked up until they confess and pay the fine? Will that conviction be safe and will that fine be justified?
There are no answers to such questions and this is exactly what has downplayed the reliability of the law, made it draconian and rendered it open to legal criticism. One thing is certain: the fine or conviction itself will never be considered to be safe because it completely disregards justice, fair play and other values of due process.
Unfettered Powers Allotted to the Chair to Freeze Property for Prolonged Periods (s.12)
The use of discretion can be said to reach its pinnacle when it comes to this part of the law. According to section 12(a), the NAB Chair, or the court trying an accused, “may, at any time, if there 8 appear reasonable grounds for believing that the accused has committed such an offence, order the freezing of his property,9 or part thereof, whether in his possession or in the possession of any relative, associate or person on his behalf.”
Additionally, according to section 12(b)(i), (ii), (iii) and (iv) applicable to “a debt” or “movable property”, “If the property ordered to be frozen under sub-section (a) is a debt or other movable property, the freezing may be made: (i) by seizure; or (ii) by appointment of receiver; or (iii) by prohibiting the delivery of such property to the accused or to anyone on his behalf; or (iv) by all or any of such or other methods as the Court or the Chairman NAB as the case may be, deem fit.” Section 12 (c) is a repetition of the same clauses in case of “immovable” properties.
“At any time” is a problematic expression which has no limits because of the flexibility it exhibits in all aspects. It is an expression of arbitrariness and we cannot allow that to creep into the law if we are to maintain any sense of fairness. “Appear reasonable grounds” and “for believing” also do not seem to be appropriate yardsticks for an arrest not seizing property, which can jeopardize not only human freedoms guaranteed by the state but the right to property guaranteed by our Constitution as well, if exercised with an unjust interpretation. According to the law of England and Wales, even an arrest can be deemed to be improper if proper procedural requirements were not fulfilled. This part of the law in question does not lay down the requirements which should either be evidentiary or procedural. It does not even explain how strong or weak the reasonable suspicion ought to be in order to help the Chair make a decision. It rather lays down a very low threshold for a very big decision i.e. the seizing of property as compared to conclusive knowledge or even evidentiary proof. Sections 12 (b)(iv) and 12 (c) become unbelievably discretionary when they mention the seizing of property “by all or any methods that the NAB Chair or the court deem fit”. Does this mean they can deploy the military as well since there are there no limits? This does, however, mean one thing: it takes us back to the military origins of the Ordinance.
Section 12 (d) allows the NAB Chair or the court to sell “livestock” or “perishable” property without permission even where corruption is presupposed and not proven in a court of law.
Section 12 (f) sets out that the freezing order is to remain operative until the final disposal of the case. It needs to be stressed at this point that this shall be the case even where there is no conclusive evidence proven in a court of law that the asset was indeed obtained through corruption or corrupt practices. Adding insult to injury, the order is to remain operative for 10 days even after acquittal. One reason to do so would be that there might be an appeal against the acquittal. Regardless of such a possibility, it ignores the principle that an acquittal, even though temporary in nature, is still an acquittal.
Section 13 allows for an appeal to be entertained and adjudicated upon all claims and objections against the freezing of any property which might have been wrongly frozen or appropriated in the first place. Such an application can be dismissed like all applications and the time for making one can be extended to 14 days. Yes, there is finally some procedural definition but then again, would it even be needed if previous sections had been drafted to be inclusive of legal tests and procedures? This seems to be a vicious circle of freezing and unfreezing properties that could have been prevented from being frozen in the first place. Quite a confusing situation that could easily have been avoided.
Presumption Against the Accused for Accepting Illegal Gratification Should Be a Stoppage Point (s.14)
Section 14 (a) is primarily based on s.9 which has its own gaps as identified above. However, the point to be kept in mind is that this presumption against the accused for accepting illegal gratification in s.14 (a), (b) and (c) is based on an already made presumption without due legal procedure in s.9 (i)-(viii). This can, at the very least, be said to be against the rules of natural justice wherein there is a “presumption of innocence” and “not a presumption of guilt” which this part of the law seems to instill. This is by far the darkest part of the law. It goes to show a no-way-out situation for the person to whom these laws have been applied. The prosecution does not have to do anything, rather the accused has to prove that he or she was not corrupt. The burdens of proof, both legal and evidentiary, have been shifted to the accused, which should be enough reason to scrap this law. These burdens should rest on the shoulders of the prosecution and not the defendants. Even if they get shifted in exceptional circumstances, there should at least remain a presumption of innocence – which is not being granted to the accused as yet.
According to s.24 (a) the NAB Chair “at any stage of the [inquiry or] investigation” can direct the accused to be arrested if not already arrested. Section 24 (c) states that subsection (a) would also apply to cases that have already been referred to the court. Section (d) lays down that such a person, “as soon as may be”, shall be informed of the grounds and substance on the basis of which he or she has been arrested, shall be produced in court within 24 hours and “having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding 90 days”.
The test for “as soon as may be” is presumably based on “as soon as reasonably practicable” of UK law, which makes sense and is not that big of an issue just like being produced in court within 24 hours, however, prescribing 90 days at the investigation stage seems to be a flaw that cannot be ignored because in criminal cases in the UK, the investigation time is usually not more that 96 hours and that is the maximum in accordance with the current criminal procedure.
Keeping somebody in custody without charge is a gross violation of human rights and the freedom of movement which is supposed to be guaranteed by the state. In English law, custody can never be indefinite without charge. There is a bar on time periods of investigation because custody or detention is a curtailment of a person’s right to free movement which is also a part of the right to life. Indefinite custody is a violation of such rights and falls in the domain of “unlawful detention”, also invoking the write of habeas corpus. This seems to have been ignored by the legislators. Thus, it is unfair and unacceptable.
The analysis has not only aimed to identify easily visible cracks in the National Accountability Ordinance of 1999 but also provide critical scrutiny in order to generate the viewpoint that even though no law is perfect, laws as draconian and unfair as this Ordinance lead to miscarriages of justice, prosecutorial errors and abuse of power by way of their application.
Such laws, as long as they exist and continue to be in force, will make our already decaying justice system a breeding ground for injustice, not because we are not cognizant of the fact that we need to improve the legal system but because they have a tendency to be misused.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.