NAB Law and the Bones of Contention

NAB Law and the Bones of Contention

Background

The word anti-corruption predates the making of the country. The first law to address it, known as the Prevention of Corruption of Act 1947, was promulgated a few months before independence and was consequence of the corruption in defense contracts during and after the Second World War. The investigation agency was called the ‘Special Police Establishment’ till 1973 and the Federal Investigation Agency (FIA) after that. The investigation of anti-corruption cases in provinces is carried out by provincial anti-corruption establishments (ACEs).

The word accountability or ehtisab was first introduced in 1996 by the caretaker setup of Prime Minister, Malik Miraj Khalid when an Ehtisab Cell was established under the Ehtisab Ordinance. Later on, Prime Minister Nawaz Sharif set up an Ehitasab Bureau under the law known as the Ehtisab Act 1997. The Ehtisab Bureau mostly targeted the Opposition but the law had one distinct and useful feature: the establishment of twin offices of the Ehtisab Bureau Chair and the Chief Ehtisab Commissioner. Saif ur Rehman was well known as the Ehtisab Bureau Chair and was head of investigation while Justice (retired) Ghulam Mujaddad Mirza was the Chief Ehtisab Commissioner and the ultimate authority to sanction prosecutions.

The National Accountability Bureau (NAB) was established on 16^th November, 1999 under the law called the NAB Ordinance. The name of the law was later changed to National Accountability Ordinance (NAO). NAB law deviated fundamentally from the established principles of criminal law in the country and introduced sweeping penalties and procedural new steps. The law was altered to some extent in 2001 in a case titled Asfandyar Wali and others Vs the State but the fundamental features remained the same. There have been several bones of contention in the law identified by the legal fraternity and those affected most by it including politicians and bureaucrats. This article attempts to identify and address those contentious issues and recommend a better course of action in light of general law and accepted practices.

The Contentious Issues

1. Cognizance

NAB law provides that cognizance will rest with the NAB Chair. Cognizance is a legal concept which is fundamental to the rule of law and criminal procedures across common law systems including ours. It simply means that the first and final custodian of a case is the court and all actions which investigators take is on behalf of the court of law. This is meant to ensure fairness and avoid misuse of law since criminal matters can involve depriving citizens of their liberty. So, such matters should be subject to the scrutiny of a neutral court and not the executives, and the courts should have the final word on the disposal of such cases.

Cognizance in NAB cases is different from common practices as the NAB Chair is the sole decider of starting an investigation or sending a case to trial. The court cannot take notice and no citizen can file a complaint in the court against it. Similarly, the court cannot quash the case as is a practice otherwise. The court can only adjudicate on the basis of material provided by the NAB Chair as a ‘reference’ and cannot go beyond that. There has been constant demand that cognizance be reverted back to the trial court to ensure fairness of trial and neutrality.

2. Arrest

Criminal law in Pakistan generally allows the police and investigators to arrest any accused without a warrant. These sweeping powers owe their existence to the colonial legacy and exigency of administering an alien society. This has been the case despite the fact that in both the US and the UK, investigation agencies do not have the power to arrest on their own, except in emergency or dire circumstances, and they have to take permission from the prosecutor or court or grand jury. In Pakistan, special laws dealing with corruption have mostly tapered down these powers with the provision of inquiry as well as the designation of authority which authorizes arrest.

At the National Accountability Bureau, The NAB Chair exercises the sole authority to arrest an accused. This power is justified on the pretext that the cases are mostly high profile so the investigators cannot and should not have this power. While this logic appears to be persuasive, the situation on the ground is different. It is practically impossible for one person or office to review hundreds of cases and make decisions as to the arrest of persons. The result is that those at the operational level invariably pick and choose while deciding arrests. Bias may not exist due to personal prejudices but it does exist and varies from person to person and region to region.

Another contentious issue is that of selectivity in arrests. Dozens of cases go to trial without arrests, while in many cases persons get arrested and face trial from jail. There have also been numerous instances when an accused has been arrested and in the same cases another accused has not faced arrest. The criterion is never explained as it does not actually exist. The issue of arrest is further aggravated by the 90-day period of physical remand of the accused, which is a deviation from all other laws including the Anti-Terrorism Act. The power of arrest has thus become a sword in the hands of investigators who can slay whatever head they choose. There is a need for regulation and a system regarding arrests which must ensure that the decision to arrest is not personalized.

3. Bail

All criminal laws have a provision for bail before or after arrest except for NAB law. The option of bail is allowed because superior courts have consistently held that arrest should not amount to punishment. Penalty should start after trial and not before that. In our country, where conviction rates hover around 10 percent only, there is no compensation for those arrested and later acquitted.

NAB law says that no court has the power to grant bail. The practice has evolved indirectly though, since High Courts have original writ jurisdiction under Article 199 and they can pass any order, so bail can be obtained through that option. The trial court has no power of bail and there is a need to provide that option. Since most of the cases involve white collar crime, bail sureties can be set high and the accused’s passport can be seized pending trial to prevent flight risk.

4. No Rules for Investigation

Government organizations operate under “Rules” which are framed to complement laws. Investigation agencies are also such organizations and meant to follow such rules. The main legislation gives structure and powers but departmental rules decide the day-to-day activities of the government. NAB law says that rules will be made some day but that has not happened since two decades. This is strange for a department which prosecutes other departments for failing to act or misusing authority. Most day-to-day business of the NAB that is carried out is regarding the ever changing standards of procedure (SOPs) which have no legal cover.

5. No Permanent Investigation Record

Having a permanent record is another feature of governmental organizations. It is maintained for transparency, accountability and institutional memory. The police, tax and land revenue departments, etc. have permanent records in the form of registers to keep track of decisions and act as a check on their activities. NAB, ironically, has no records kept under the law so practically there is no way of knowing how many cases are being investigated, who has been called, or how many people have been arrested. A few years ago, Justice Jawwad Khawaja conducted a review of NAB’s performance and found that the list of cases provided by NAB at different times did not match at all. A public sector organization has to be transparent and an investigation agency should have the responsibility to keep a record of its activities, which should be accessible as public record.

6. No Difference Between Complaint, Inquiry and Investigation

NAB’s law and practice make no distinction between an inquiry and an investigation. As a result, it is up to the investigator’s discretion to transform an inquiry into investigation or even arrest people during an inquiry. The consequences of an inquiry and investigation can involve the options of voluntary return and plea bargain. The former, a lenient option, can only be availed in an inquiry. The issue of selectivity remains while giving the options of a plea bargain. Furthermore, no time period has been prescribed for an inquiry because there are no departmental rules. This has created huge variance in operations. This also means that cases are dragged on for not just years but decades. Addressing complaints is another tricky matter. The competent authority has the absolute discretion to convert any compliant into a legal process or even start a legal process without any compliant.

It is common practice in criminal procedure that the inquiry is an initial process where issues are framed, evidence is collected, wrongdoing is identified and losses are calculated. No such practice exists in NAB. Cases often go directly to investigation. Some cases languish at inquiry stage where such an inquiry gets converted into investigation even without much evidence having been collected. Then there is no process as to how cases are closed. Ordinarily in criminal cases, closure or cancellation is approved by the court but at NAB, courts are kept out of the loop. Closure of an investigation may be brought before the court but it mostly gets endorsed without reservations.

7. Misused Law, Misuse of Authority

NAB law has introduced a novel and vague concept in the form of going after misuse of authority or failure to exercise authority. This essentially means that any administrative decision can be interpreted under the ambit of corruption. A common practice across the world is that such misuse is decided on the basis of illegal benefits which a public servant receives, whether monetarily or otherwise. Furthermore, it is impossible to establish that a project or decision has been a failure or success since there can be numerous factors contributing to it.

In most countries, administrative decisions get called into question by parliamentary committees or specialist agencies, such as the Government Accountability Office (GAO) in the USA. These are not investigative or prosecutory agencies but they detect if there has been any malfeasance if and then recommend cases to the FBI, etc. for prosecution on the basis of any illegal benefits obtained by the concerned public official. Determining the misuse of authority is a flexible tool in the hands of NAB that can nail anything on any public servant. There is no set pattern of finding actual ‘losses’ to the state exchequer. Irregularities mostly get turned into illegalities, and illegalities into scams.

8. Accountability of NAB

NAB, which claims to hold others accountable, is itself not accountable to any forum. This is again an anomaly since all over the world, corruption watchdogs who have immense authority are also put under scrutiny for their actions. There is no check whatsoever over the actions and performance of NAB which is having an adverse effect in the form of the arbitrariness that is prevalent. There is no forum to question why some of the mega cases related to public money have not been concluded, audited, shelved, or closed without progress, even after years.

Conclusion

NAB was modeled around Hong Kong’s Independent Commission Against Corruption (ICAC) which was the earliest and the most successful anti-corruption agency in the world. The ICAC model is based on three pillars:

1. Awareness
2. Prevention
3. Prosecution.

Furthermore, the ICAC has two distinct features:

1. Investigators are monitored by vigilance committees for their investigations and arrests.
2. Prosecution is outside the jurisdiction of ICAC and in the hands of the Attorney General.

As is the case across the world, in Pakistan also, precedents have evolved regarding the separation of prosecution and investigation. Investigators have to collect evidence and prosecutors have to weigh evidence as per the law. At NAB, the deviation is threefold, since investigation, prosecution and even powers of the court are all vested in a single office i.e. that of the NAB Chair.

In order to transform NAB into a credible and professional investigation agency, it is imperative that it should be tasked with the collection of evidence, while legal powers of arrest, prosecution and cognizance be taken away and handled by a neutral forum other than NAB investigators. Departmental rules need to be framed and penalty for faulty investigations needs to be introduced. Like all regulators, NAB should itself be subject to horizontal accountability and scrutiny by experienced and neutral professionals. Another option can be the setting up of a commission (a common practice in the UK) for reviewing laws and proposing changes. The commission can be set up to review NAB’s performance since 1999 and  recommend changes keeping in view the twin challenges of fairness of the legal process provided under Article 10-A of the Constitution and public demand for strict accountability of those involved in the pilferage of public funds.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.