The audio and video clips concerning the alleged conduct of Chairman NAB, in regards to a woman who was facing investigation by NAB authorities, has taken our politico-media waves by storm. Over the past 3 days, America’s confrontation with our neighboring Iran, the election of Narender Modi in India, and stabilization in the value of PKR have all taken a backseat to the sensationalism of Chairman NAB’s alleged audio/video recordings, and its political fallout.
The facts of the actual allegation, and the nature of the audio/video recordings, are no better than a script of a postmodern drama. At its core, the alleged plot is simple: a man, in position of power, sexually harasses a woman whom he exerts some influence over. While she does not have the leverage to tell him off, she decides to expose him by recording their interaction. Later, she makes the recordings public, thereby vindicating herself and saving thousands of others from such future exploitation.
Problem? 1) the alleged offender is Chairman NAB, in the midst of perhaps the most controversial season of accountability that Pakistan has ever seen; 2) those that broadcasted these videos (News One and Malik Tahir Khan) have retracted their allegations, denied the authenticity of the recordings and (most importantly) are facing NAB investigation himself?
Since this is Pakistan, the story does not stop here. Because of Tahir Khan’s involvement, the opposition political parties (helped by sympathetic media) immediately declared that this video had been made and released at the behest of the ‘Prime Minister Office’. Conveniently, all of the opposition and most of the media drew this conclusion without any inquiry, investigation, or probe. Deepening the plot, a group of PML(N) leaders, led by Mr. Shahid Khaqqan Abbasi, held a press conference to demand that the committee of the parliament should investigate the matter. Unsurprisingly, Mr. Abbasi forgot to mention that NAB was in the final stages of filing a reference against him (concerning appointment of MD, PSO).
Next, the Hamza Shehbaz centric wing of PML(N), speaking through Mr. Malik Ahmed Khan, held a press conference to resonate his leader’s sentiment, demanding resignation or removal of Chairman, NAB. Immediately, the Maryam Safdar centric wing of PML(N), speaking through their spokesperson, Maryam Aurangzeb, issued a statement to distance themselves from the stance of Malik Ahmad Khan (read: Hamza Shehbaz).
Somewhere in this milieu, a reference got filed against the woman who accused Chairman NAB; Bilawal Zardari held a press conference to cast further doubts on the integrity of Chairman NAB; and those, ‘within Prime Minister Office’ suspected to be behind this entire fiasco have kept eerily silent.
More to the meat of the issues at hand: if there is any truth to the audio and video recordings, Chairman NAB must be held accountable. Not simply because he is Chairman NAB but because any person in position of power (especially within the State hierarchy) cannot be permitted to continue in such a position, without first clearing his or her name from allegations of harassment. We live in the age of #MeToo, and the age-old patriarchal practices must crumble at the feet of a new world order that places human dignity and equality at its heart.
The allegations of sexual harassment, in themselves, if proven, would be sufficient to warrant removal of Chairman NAB. In the instant case, the issue is deepened because of the allegation that this sexual harassment took place at a threat of initiating (or not) NAB references against the victim.
For completeness’s sake, it is also important to say that, in case these allegations are untrue, and that Chairman NAB is just being framed maliciously, that those behind this entire episode must face serious consequences as envisioned by law.
In case removal of Chairman NAB is contemplated seriously, it needs to be asked in what manner and on what grounds such removal can take place. And these are purely legal/constitutional questions.
What are the grounds for removal of Chairman NAB? This is a straightforward proposition. Specifically, Section 6 of the National Accountability Ordinance, 1999, expressly states that Chairman NAB “shall not be removed except on the grounds of removal of Judge of Supreme Court of Pakistan”. So, what are the grounds for removal of a Judge of the Supreme Court? For this purpose, Article 209(5) and 209(6) of the Constitution stipulate that a judge of the Supreme Court can be removed, by the Supreme Judicial Council, if he/she is 1) “incapable of performing duties of his office” or 2) “has been guilty of misconduct”.
The issue of “incapacity” is relatively simple and primarily relates to the physical or mental wellbeing of the person concerned. Clearly, Chairman NAB does not suffer from an incapacity to perform his functions.
Determining whether the concerned individual, in this case Chairman NAB, is “guilty of misconduct”, is much more complicated. In most cases, it requires production of evidence, recording of statements, and all the nuances of our due process of law. In any case, the honorable Supreme Court of Pakistan, in several judgments (specifically Sindh High Court Bar Association PLD 2009 SC 879), has provided guidance as to what constitutes misconduct. And per Section 6 of NAB Ordinance [supra], the same standards would have to be applied in the case of Chairman, NAB.
The real issue, however, is that of selecting a forum for adjudication of this issue. Put another way, what is the forum that will adjudicate whether or not Chairman NAB is guilty of misconduct? Must the matter be referred to the Supreme Judicial Council, as is the case of judges of the honorable Supreme Court? Or can some other forum (e.g. the High Court) remove Chairman NAB by applying the established standards of misconduct?
Interestingly, the law (NAB Ordinance) is silent, in this regard. It only specifies the “grounds” for removal of chairman NAB but does not specify ‘manner’ in which the same is to be done. In juxtaposition, other constitutional or statutory offices that have similar position (e.g. Auditor General of Pakistan under Article 168 of the Constitution and Chief Election Commissioner under Article 215 of the Constitution) expressly stipulate that the manner for removal shall also be the one specified for a judge of Supreme Court (i.e. Supreme Judicial Council).
While there is no precedent of removing Chairman NAB through this process, the only similar case is of that of removal of Akhtar Buland Rana, the then Auditor General of Pakistan, through recourse to the Supreme Judicial Council. In the circumstances, propriety would demand that proceedings for removal of Chairman NAB (if contemplated) should take place before Supreme Judicial Council. However, there is a plausible argument that such proceedings can also take place before the respective provincial High Courts.
If such a petition is filed before any of the provincial High Courts, especially by PML(N) before the honorable LHC or PPP before the honorable SHC, and if such petitions are entertained for arguments, we will have a clearer picture of this case of first instance. Carrying the argument to its logical conclusion, in case the provincial High Courts (within our tainted politico-judicial atmosphere) entertain such a case and decide to remove Chairman NAB, the same would have a chilling effect for the entire process of accountability not because this Chairman NAB deserves to continue in his existing position but simply because such an eventuality would greatly compromise the ability of NAB to prosecute elements within political parties that hold sway in the respective provincial governments and (respectfully) the corresponding High Courts.
No matter how one views the alleged video/audio recordings of Chairman NAB, there is no way to deny the fact that this episode has damaged the integrity of NAB, its chairman and its drive for accountability. There is no way to deny that in the coming weeks and months, this scandal will have an overarching shadow over all activities of NAB. It will strengthen the hand of those who wish to escape the clasp of accountability and weaken those who had hung their hopes on the promise of corruption free Pakistan.
If my voice finds resonance with those in corridor of power, it would be best for Chairman NAB to voluntarily remove himself from his current position, at least till such time that his name is cleared through an independent inquiry. This will not only be beneficial to the person and office of Chairman NAB but more importantly to the project of accountability in our land.
