Political & Statutory Victimisation Of National Accountability Bureau
How can one expect the National Accountability Bureau to function fearlessly when its Chairperson is appointed by the same individuals, for whose accountability the Bureau was established? Indeed, the jurisdiction of National Accountability Bureau (NAB) under section 5 (m) of the National Accountability Ordinance, 1999 includes the Prime Minister, Leader of the Opposition and the President of Pakistan. All three form part of the process of the appointment of the NAB Chairperson. If the Prime Minister of Pakistan is accusing the Bureau of harassing people, the independence and ability of the Bureau to function properly is seriously compromised.
Recently, on 16 February, 2016, the Prime Minister of Pakistan made a public statement at Bahawalpur against NAB by alleging the latter’s involvement in harassment of people and destruction of people’s reputation with unlawful cases. During the same occasion, he threatened to take necessary action against NAB. Apparently, the Prime Minister was not pleased with the performance of NAB. The concerns of the Prime Minister to reasonably expect from NAB to function properly may not be ill-founded; however, the fact that he is himself a holder of public office and can be investigated by NAB for alleged corruption, can create a reasonable apprehension of bias against NAB. The views of the Prime Minister can very well be construed as instructions to prevent NAB from performing its statutory role of eradicating corruption to ensure transparency. These comments can compel the body to pick and choose and discriminate in exposing corruption.
In essence, NAB was established under the National Accountability Ordinance, 1999 (NAB Ordinance) “for the detection, investigation, prosecution and speedy disposal of cases involving corruption” by the holders of the public office or any other persons. According to the Hon’ble Supreme Court of Pakistan in the Progress Report of OGRA Case, 2015 SCMR 1813, “NAB has been created as a principal watchdog against corruption in Pakistan. Corruption is itself rightly perceived as eating into the very foundation and vitals of society. A corruption watchdog, which, therefore, does not function efficiently adversely affects inter alia, the fundamental rights in Articles 14, 18, 19A, 23 and 24 of the Constitution.” In simple terms, the inability of NAB to fight corruption will deprive the people of their constitutional rights to live with dignity, freedom of trade, right to information and protection of property rights.
There are serious concerns about the statutory and institutional independence of NAB. Whilst, it has made some significant recoveries, the core issues in relation to the very functioning of NAB are yet to be resolved through removal of statutory defects.
The first and foremost issue is the appointment process of the NAB Chairperson. Unlike Article 175A of the Constitution of Pakistan, 1973 which provides for an independent judicial commission for the appointment of the judges, the NAB Chairperson is appointed under section 6 of the NAB Ordinance by the President of Pakistan in consultation with the Prime Minister of Pakistan and the Leader of the Opposition in the National Assembly. The term “consultation” came under discussion in the case of Ch. Nisar Ali Khan v. FoP, PLD 2013 SC 568, where the appointment of Admiral (r) Fasih Bokhari as Chairman NAB was set aside by the Hon’ble Supreme Court for lack of proper consultation with the Leader of Opposition. It was held that “…’consultation’ has to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness or unfair play and in order to establish that a consultation was meaningful and purposive, it should manifestly be shown that a serious, sincere and genuine effort was made evolving a consensus.” No doubt, the Hon’ble Supreme Court ensured compliance with the consultation requirement provided under the statute; it was necessary but insufficient. The judgment is surely incapable of addressing the real apprehension of bias against NAB.
Imagine, the Prime Minister and Leader of Opposition engage in proper consultation in the appointment of the NAB Chairman but they also appoint an individual on the understanding that no cases will be opened against each other’s political party and party leader. In this way, they can easily manage to develop a consensus on giving immunity to each other. Rather, a warrant to engage in corrupt practices without being caught. The statement of a former Federal Minster of Pakistan People’s Party, Sardar Abdul Qayyum Jatoi, is still fresh in my memory when he blatantly claimed on Javed Chaudhry’s talk show ‘Kal Tak’ that corruption is as much their right as it is of other political parties. He went on to defend his statement by saying that only a loser would not engage in corrupt practices when everyone else who came in power did it. In a nutshell, you have a right to corruption when you come in power.
Pity the nation that surrenders their fundamental rights enshrined in the sacred document known as the Constitution to allow their politicians to fill their pockets. The entire chain of appointment is flawed as the same public office holders who can be potentially accused for engaging in corrupt practices appoint the head of a body that is to perform as the “principal watchdog” of corruption. The NAB can function fearlessly, properly and effectively if government officials and Parliamentarians have no significant involvement in the appointment process. We can surely derive some assistance from Article 175A of the Constitution to strengthen NAB as an autonomous body by assigning the appointment powers to an independent judicial commission. This will require the amendment in the section 6 of the NAB Ordinance.
NAB performs various functions under the NAB Ordinance such as investigation, prosecution and adjudication that whether the case should go to trial or not. Unless NAB is an independent body in true sense, there will always be a real apprehension of institutional bias by empowering it with such broad powers. Under section 18 of the NAB Ordinance, the exclusive power to investigate and inquire with regards to the offences under the said Ordinance lie with the NAB Chairman or his duly authorised officers. The same section as well as section 24 of the NAB Ordinance empowers the said officials to arrest anyone. Upon the completion of the inquiry by the NAB officials, they can refer the matter to a court for trial. The Court cannot proceed until the reference is filed by NAB. Similarly, under section 9(c) of the NAB Ordinance, the Chairperson of NAB has a power to determine whether any prima facie case is made out against the accused. If negative, the case is closed. During the investigation, NAB Chairperson or authorised officers are empowered under section 19 of the NAB Ordinance to call for information, place the name of accused in the exit control list (ECL) and seize materials. The same powers are also provided under section 27 of the NAB Ordinance. Under section 12 of the NAB Ordinance, the Chairperson of NAB or the trial court has the power to order the freezing of the property of the accused. The investigation powers of NAB are also set out in section 22 of the NAB Ordinance. If anyone “compromises, hampers, misleads, jeopardises or defeats” the investigation process, a committee comprising of Chairperson NAB, Deputy Chairperson NAB and Prosecutor General Accountability can sanction the trial of the same person. Under section 31-B, the Prosecutor General Accountability can withdraw from the prosecution of any accused, entitling the accused to a discharge (before the charge has been framed) or an acquittal (after the charge has been framed).
- In Mehram Ali v. FoP, PLD 1998 SC 1445, it was held that judicial powers can only be exercised by courts established under Article 175 of the Constitution or by tribunals created under the Constitution, such as the Election Tribunal [Article 225], Administrative Tribunals [Article 212], etc.
- In 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool),  3 SCR 919, the Supreme Court of Canada held that in liquor permit cancellation process, the regulatory authority (Regie) suffered from institutional bias as the common law test of “reasonable apprehension of bias” was met: Regie was vested with overlapping functions; the same officials participated in the different stages of the investigatory, prosecutorial and adjudicatory process.
- In Reference No. 2 of 2005 by the President of Pakistan, PLD 2005 SC 873 (Hisba Bill case), the Supreme Court of Pakistan held that Article 175(3) of the Constitution does not allow a Mohtasib to be an investigator, prosecutor and also exercise judicial powers.
- In Rex v. The Sussex Justices ex p McCarthy,  1 KBD 256, the conviction was quashed where the justices’ clerk had previously worked as clerk to the solicitor who had claimed against accused on the ground that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
NAB owes a fiduciary duty to the general public to prosecute the corrupt so that the life and property of general public is safe from the dirty hands of looters and pocket-fillers. Chairperson NAB is also empowered to give a clean chit to anyone. Under section 25 of the NAB Ordinance, Chairman NAB can accept the offer of voluntary return and plea bargain by the accused and refer the case to court for the approval of the accused’s release. Clearly, my understanding of the section is that one may engage in corrupt practices and if one is ever caught then may offer a voluntary return to discharge oneself from all the liabilities. This section needs to be amended in a manner that a voluntary return and plea bargain could only be a mitigating factor in the reduction of sentence rather than a release.
If the NAB Chairperson is not independent, there is a real apprehension of bias against the entire body. The Deputy Chairman of NAB is appointed under section 7 of the NAB Ordinance by the President of Pakistan in consultation with the NAB Chairperson. The Prosecutor General Accountability of NAB is appointed under section 8 of the NAB Ordinance by the President of Pakistan in consultation with the NAB Chairperson. The officers and staff of NAB are appointed under section 28 of the NAB Ordinance by the Chairperson of NAB or an officer of the NAB duly authorised by the Chairperson of NAB. If you do not have a strong and independent person at the top, there is a real likelihood that the team will also be under political pressure to function effectively. A proverb of ancient origin “a fish rots from the head down” is applicable if the office of NAB Chairperson is not strengthened; there will always be political pressure and the governments will deem it appropriate to create obstacles in the way of NAB to save themselves and their allies from accountability.
In Suo Motu Case No. 4 of 2010, PLD 2012 SC 553, Asif Saeed Khan Khosa J proposed an additional note to be added in the judgment which convicted the former Prime Minister of Pakistan, Mr. Syed Yousaf Raza Gillani for contempt of court, he stated that “Pity the nation that adopts a Constitution but allows political interests to outweigh constitutional diktat. Pity the nation that demands justice for all but is agitated when justice hurts it political loyalty. Pity the nation whose servants treat their solemn oaths as nothing more than a formality before entering upon an office….. Pity the nation that is led by those who laugh at the law little realizing that law shall have the last laugh.” With an apology to the Honourable Justice of Supreme Court of Pakistan, I would like to add that the NAB Ordinance is not capable of having the last laugh in presence of such grave statutory defects. I humbly add that Pity the nation that is not capable of keeping their government servants in strict scrutiny. Pity the nation which breathes in a pollute environment where transparency is an alien. Pity the nation where rule of law and independence of accountability bodies like NAB is still an enigma.
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