The question is not whether National Accountability Bureau (NAB) is good or bad? The concern is whether it has been effective.

Corruption and flight of capital are the biggest issues that ail governance. In a previous article, I cited that over 12 billion rupees are lost on daily basis to daylight robbery. Ever since 1999, the fanfare associated with the NAB caught the imagination of Pakistanis and opposition. The judiciary also joined hands with the military, and validated the takeover by conferring extraordinary powers to one single individual. After a brief bright spot, it has been used by the originators and successful regimes to cover tracks. It will be a pity if NAB goes.  

From 1997 to 1999, the PPP had been singled out by the Ehtesab Bureau. The drive against corruption of the ruling clan was mainly focused against their rivals in opposition. This Bureau targeted a number of political adversaries with frivolous or confusedly jumbled facts that were placed before trial court of hand-picked judges incompetent at dealing with the complexities of white-collar crime. Yet in rare cases, they did unmask some corrupt politicians and public office holders. This partisan process lost its credibility, because none from the ruling elite were investigated. It appeared that politics was the sole domain of the corrupt.

One of the basic distinctions between the previous laws on anti-corruption and the National Accountability Ordinance is an effective recovery mechanism for looted wealth. It brought within its ambit in the public or private sector, including wilful defaulters who earlier were civil liabilities. In order to enforce recovery, concepts such as voluntary return, plea bargain and reconciliation of liability were introduced. The focus was not merely on enforcement but also extended to eradicate corruption at the source through awareness and prevention.

Over 15 years, NAB too carries a similar, though less frivolous tag, than its predecessor. It has given a mixed performance. By 2005, the banks squealing under defaults were rehabilitated. Over 240 billion of nation’s looted wealth was recovered. By one estimate, preventive measures and awareness reduced corruption by over 230 billion rupees from 2010-13. Such figures are unprecedented in Pakistan’s anti-corruption drives.

However, earlier than expected, General Musharraf abandoned the road to impartiality. The fanfare of eradicating corruption, punishing corrupt individuals and bringing back Pakistani looted money gave way to political expediencies and harassment of opponents.  With political acquiescence began a process of contrition through plea bargains and write-offs to recycle waste into more waste. The high moral ground of ridding Pakistan of the evil was conceded to opportunism. This approach was detrimental to a wonderful ordinance that deprived the institution from evolving and building its capacity. Lt. General Shahid Aziz was stopped from investigating PSO. Who knows, had he been successful, Pakistan’s economy would have had a walloping at 8 to 10 percent of GDP growth?

Though NAB was a new idea, it co-opted many old actors of the Ehtesab Bureau for convenience mainly to concentrate on Zardari and his ilk. This pressure resulted in bringing both the PPP and PML-N to reconciliation first through the Charter of Democracy and later NRO. Once the NRO was struck down by the Supreme Court, these cases were revived. These cases are under investigation by NAB.

The NAB is a self-investigating and prosecuting body whose accountability courts function under the Supreme Court. The quality and quantity of prosecutors is sometimes a question.  The delay in court proceedings cannot be blamed on prosecution of NAB alone. The apex court has a role to play too.

Consequent to the Charter of Democracy, the PPP government in its fading years tabled an amendment to the law that was not passed under objections from opposition, PILDAT and shadow of an active judiciary. It was a very weak variation and proposed to delete high ranking defence officials from becoming the Chairman of National Accountability Commission. It was to retrospectively take effect from October 2002 implying that all PPP and PML-N cases before that would be quashed. The contours of the same bill are being voiced once again when NAB provided a list with details of 150 mega corruption cases before the Supreme Court of Pakistan. It also included 50 cases each of monitory irregularities, misuse of powers and land scams.

So now both PML-N and PPP have found common purpose. The government is building a perception through friendly media houses against NAB. The purpose is to reintroduce a new legislation and make anti-corruption irrelevant. With the hanging sword of Arsalan Ifthikhar and many such cases, a welcome assistance is likely to come from the apex court. Supreme Court is not happy with aspects of criminality in which Chairman NAB has powers to arrest any public office holder of Pakistan except those with constitutional immunity. The decision fatale of 31 July 2009 by the new chief justice of Pakistan will cast long shadows.

According to Section 4 of NAO, the applicability extends to all public servants and citizens. Once placed in in juxtaposition with Section 9, a combined reading leads to an irresistible conclusion that none is excluded. There is a legal opinion that the omission of Judges in no way excludes them from the ambit of this Ordinance. If the intention of the legislature was to exclude, then such exclusion ought to have been like serving persons of the Armed Forces who have criminal liability under the Army Act with far harsher punishments. The apex court has no such law wherein Judges can be made criminally liable for offences of corruption. The appellate process and Supreme Judicial Council make a judge liable for capacity and conduct, but not for criminality in corruption. ‘Accountability’ in the context of NAO is different from the word ‘accountability’ in the context of the proceedings of Supreme Judicial Council. In legal principle both civil and departmental proceedings can go on simultaneously and Judges are never an exception from criminal proceedings under the normal law. A Judge is liable under the Penal Code, Customs Law, Sales Tax Law, Anti-Narcotics Laws etc., irrespective of the proceedings of Supreme Judicial Council.

The mechanics of decision-making within an anti-corruption system in probing, enquiry, investigation and prosecution, have been consistently hampered by the repeated interference from the judiciary in Pakistan. Venomous insinuations of a hostile and politically motivated media house against NAB have created misperceptions. If criminal accountability in Pakistan has to be made effective, then there is need to ensure complete independence of anti-corruption authorities from all sorts of infringements of law through judicial overreach, political interference and selective accountability.