What is Wrong With the NAB Ordinance?
The National Accountability Bureau (NAB), an anti-corruption body formed to probe into matters pertaining to corruption of public office holders, has been under the public radar in contemporary political discourse. The spirit of its conception may be commendable, but the same being marred by an instinct of political vendetta puts into doubt the entire structure upon which the institution of NAB stands today. As a result, political opportunism is reflected in the sweeping legal apertures of the NAB Ordinance.
The first issue in the NAB Ordinance stems from its “intent of formation”. The institute was made under the military government of General Pervez Musharraf via an Ordinance promulgated in 1999 which served the purpose of self validation and victimization more than holding corrupt officers accountable. Hence, the ambit of the definition of public office under Section 5(m) of the NAB Ordinance does not cover serving armed forces officers. Although the Constitution does carve its language to keep military matters away from the public discourse to protect national security, the Constitution’s intent has never been to create a “supposition of purification” for any institute. This is contradictory to Article 25(1) of the Constitution of Pakistan which explicitly states that, “All citizens are equal before law and are entitled to the equal protection of law.” However, using the protection of discipline in the armed forces as a cover, the Ordinance makes an unnatural causal link of the protection of monetary corruption under the cover of national security. This connection severely violates the principles of natural justice and the basic doctrines of the Pakistani Constitution.
In addition, Section 6(b) of the NAB Ordinance explicitly states that the NAB Chair could only be a person who has retired at the top of the hierarchy of the Civil Services of Pakistan, the judiciary and the armed forces of Pakistan. Again, this injunction reaffirms the impugned hierarchy of institutions inherent in the Ordinance by establishing the supremacy of “state executive” over “political executive” in terms of accountability.
The expansive language of the NAB Ordinance is an issue in itself. Section 9(a)(5) of the NAB Ordinance allows the NAB Chair to open an investigation against a person on the mere standard of “pecuniary resources being disproportionate to the known sources of income and standard of living”. This clause is problematic as it essentially leads to a situation in which the burden of proof on the public office holder could eventually be placed on the mere yardstick of ‘disproportion’ without defining what the “standard of living” is in clear terms.
Section 9(a)(7) of the Ordinance also creates a situation which violates the principle of natural justice. The section states that, “A policy or statute which favors the public office holder or his/her relative could also be a base for probing an investigation.” However, the “incidental” aspect of such a policy in relation to favors has been ignored in this statute and it could again lead to the shifting of the burden of proof based on a very ambiguous standard of investigation.
Moreover, Section 9(c) of the NAB Ordinance allows the NAB Chair to close an investigation if it is proved prima facie that no case can be built against the person being investigated. This clause sums up the problem with whole investigation system of NAB which allows the organization to act only on an ambiguous “suspicion”. If the suspicion is correct, the burden of proof shifts. However, if the person is innocent, the investigation is closed without any damage to NAB while destroying the administrative confidence of the officer and resolve of the state machinery in governance.
The panoramic language in the Ordinance takes another hit when it uses the “reasonable cause” standard in Section 12 and Section 14(d) for freezing assets of the accused and shifting the burden of proof on the accused, respectively. It is pertinent to mention here that this standard has been consistently used. But, in a situation where there is clear exception from customs regarding the idea of burden of proof in criminal cases, a set of rules must specify the intricacies of this standard.
In addition, Section 32(b) makes it necessary for the appellate court to conclude the case within 30 days. Although the spirit of having a speedy trial is commendable and due deference must be given to this spirit at times, it should be kept flexible considering the exemption made in relation to the standards of proof in this Ordinance.
Subsequently, there is a marked possibility of violation in the “due process of law”. The lack of respect given to the individual rights and process of law in the Ordinance is further cemented when the Ordinance simply does not give any kind of safeguard to the accused regarding self-incrimination.
Furthermore, the Ordinance allows the court to infer adverse aspects from the silence of the accused who has become a witness for the prosecution, which can appear to be violating the principles of “natural justice”.
The legal dilemma in the Ordinance is best reflected through Section 2 which allows the institute to take cognizance of the offences from 1stJanuary, 1985 while itself being constituted in 1999. This section contradicts the letter and spirit of Article 12 of the Constitution which explicitly bars the state from retrospective punishment and includes prohibiting the state from giving punishment under laws promulgated after the commission of the original crime. To address this bedlam, constitutional consultation must be made in relation to this dimension of the Ordinance.
One of the most crucial aspects over which the NAB fails modern legal standards rests in the structure of the organization. The NAB Chair has been vested with unprecedented powers. Section 28 of the Ordinance allows the NAB Chair to appoint any person which he or she deems necessary for the efficient performance of the organization. The rules framed under the Civil Servants Act 1973 do not apply to appointments within the organization. With no separation of powers within the organization and no simultaneous checks and balances, the institution bases itself entirely on one person, the NAB Chair, with a possible “external and internal bias”.
Moreover, the NAB Chair can only be removed under the same parameters as that for a judge of the Supreme Court. This concentration of power with no overseeing authority can easily be manipulated as the NAB Chair’s appointment does not go through the same scrutiny and institutional separation as that of a Supreme Court judge. This is a contentious mistake within the Ordinance as the organization tends to conduct matters of a highly political nature.
National consensus does not necessarily reflect from the consensus of the Leader of the House and the Leader of the Opposition. Therefore, a standing Parliamentary Committee, with full consensus and representation of all parties involved in accountability, must be made with special powers to regularly oversee the performance of NAB and formulate a code of conduct for its Chair so that the idea of “supremacy of the legislature” embedded within the Constitution could be upheld.
While analyzing the Ordinance, the issue of coherence with constitutional framework seems quite pressing. The devolution of powers under the 18th Amendment is one of the aspects regarding which the Ordinance does not synchronize with the philosophy and intricacies of the Constitution. The appointment of the NAB Chair comes from the federal legislature under section 6(b) of the Ordinance but section 6(a) provides the NAB Chair jurisdiction over the entire country. These two sections are contradictory to the Constitution after the 18th Amendment which mentions accountability neither in the Federal Legislative List nor in the concurrent lists present in the 4th Schedule of the Constitution. Article 142(c) of the Constitution allows Provincial Assemblies to make laws on anything not present in the Federal Legislative List. These constitutional injunctions indicate that it is more desirable for provinces to handle accountability. The constitutional spirit of the devolution of power makes NAB Ordinance devoid of legitimization from the spirit of the Constitution and its basic doctrines. Thus, devolution of accountability is the need of hour to relieve NAB of intense work pressure and fulfill the desires of the Constitution.
The issue of plea bargaining within the NAB Ordinance has been widely discussed by media outlets and political narratives. Although the core philosophy of a plea bargain is controversial all over the world, the NAB Ordinance even fails to include preventive measures to counter the established harms of the policy. Section 25(b) of the NAB Ordinance allows the NAB Chair to accept a plea deal even after the authorization of investigation. However, the NAB Ordinance does not give any “terms and conditions” based on which the deal of such nature could be accepted – this decision is left to the discretion of the NAB Chair.
Moreover, the Ordinance also does not give any conditions and limitations for junior officers to show a strong rationale for advising on such a deal. It is important to mention here that considerable criticism around the world exists on the nature of a plea bargain as it resorts to the violation of established principles of justice. This negative aspect of a plea bargain has been completely ignored in the Ordinance and no section buffers this facet to reduce the crudeness of the investigation.
In view of these deficiencies, it is recommended that the quality of legislation in Parliament be improved and the NAB Ordinance be amended to include procedures which ensure transparency in NAB proceedings.
The NAB Ordinance reflects in microcosm the dilemmas of Pakistani legislation. The issues of contradiction with the Constitution’s basic doctrines, sweeping phrases and no reverence to human rights make this Ordinance belie the established principles of natural justice. Bias of the Ordinance in favor of the judiciary and military makes it more problematic and defiles the true spirit of accountability, the raison d’être of the institution of NAB. Poor quality of legislation further aggravates the problem by subverting the Ordinance in favor of the personality of the Chair rather than in the continuity of the system. It is essential that these problems be resolved through new legislation so that accountability can penetrate the roots of the system rather than circling on the vicious whims of politics.
Constitution of Islamic Republic of Pakistan, 1973, Articles 25(1), 12, 142 (C) and 4th Schedule.
National Accountability Bureau Ordinance (XVIII of 1999), Sections 5(m), 6(b), 9(a)(5), 9(a)(7), 12, 14(d), 32(b), 2, 28, 6(a) and 25(b).
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.