The Supreme Court of Pakistan has, once again, expressed its serious concerns over various provisions of the National Accountability Ordinance (NAO), 1999. Hearing a suo motu case last week, a three-member bench of the Supreme Court, headed by CJP Justice Gulzar Ahmed, granted 90 days to the Federation to remove or amend the controversial and much-criticized Section 25 of the NAO which contains the ‘plea bargain’ and ‘voluntary return’ provisions. The SC bench restrained the anti-graft watchdog, the NAB, to exercise its powers granted under Section 25 until the parliament legislate on this matter. It also hinted at striking down such provisions if the federal government fails to do so within the stipulated time.
Section 25 of the NAO, in fact, has been quite controversial from the outset. It just empowers the chairman NAB to release, before or after the commencement of trial, any person accused of any offence under this ordinance if he returns the assets or gains acquired through corruption or corrupt practices. At times, the apex court has expressed its strong disapproval and displeasure over such provisions. Similarly, the NAO has also been dubbed a draconian law since it contains a number of provisions which violate the fundamental rights guaranteed by the Constitution of Pakistan. To begin with, it has shifted the burden of proof to an accused person in many cases. It doesn’t allow a trial court to grant a bail to the accused which is one of his recognized legal rights. Moreover, it also empowers the trial court to grant NAB officials a remand of the accused for as many as 90 days. Such extended period of remand is mostly both unnecessary and unjustifiable.
Sadly, though the NAO was introduced by an autocratic military ruler in 1999, no democratic regime, including the PTI-led incumbent government, has ever seriously endeavored to scrap its aforementioned flawed and controversial provisions due to obvious reasons. Nor has any political regime ever bothered to evolve or adopt any comprehensive anti-corruption strategy to effectively curb the menace of corruption. The federal government, however, introduced an amendment in the NAO last month whereby the business community was ‘insulated’ from the scrutiny of the NAB actions in addition to offering some relief to public servants on account of any decision made by them in ‘good faith’. The propriety or expediency of such amendment is debatable. However, by putting the businessmen and bureaucrats outside the ambit of the NAB, it has just reinforced the very perception that the NAO is nothing but a politico-specific law.
As a matter of fact, the promulgation and continuation of the NOA essentially indicate towards a two-prong political strategy which has been adhered by the successive regimes in the country. Firstly, the NOA, just like the previous anti-corruption regime in Pakistan, has been more a popular political tool than anything else. So, in the name of ‘accountability’, it has been helping those in power to pursue a typical witch-hunting exercise to victimize their political opponents in the country. We have frequently seen various leaders from the opposition political parties complaining against such political victimization for many years.
Secondly, the NAO has given rise to a so-called premier anti-graft agency, the NAB, which is focused on recovering, retrieving and repatriating the stolen or misappropriated money and assets rather than countering corruption. Therefore, the NAB has now become more an assets recovery agency than an anti-graft body. Contrary to the past anti-graft laws in Pakistan, the NAO introduced a legal modus operandi, in the form of ‘plea bargain’ and ‘voluntary return’, enabling the NAB officials to recover ill-gotten money from individuals. So, the preamble of NAO just states: “And whereas there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power or authority”. These provisions simply make a mockery of the very term ‘accountability’.
Section 25 of the NAO has somehow modified the well-known legal presumption of innocence- “innocent until proven guilty” - by giving rise to a novel presumption of innocence in favour of a person who pleads guilty. These provisions are essentially in conflict with the recognized principles of criminal jurisprudence in Pakistan. Under the law of the land, certain so-called offences against property like theft, extortion, robbery etc., are simply non-compoundable offences– the offences for which a victim or the court is not legally allowed to make a compromise with a perpetrator. Moreover, a plea of guilt always goes against the accused. This plea is generally considered strong evidence against an accused person, and often leads to his/her conviction. Ironically, a person who commits a theft of a few thousand rupees cannot escape punishment but a person who plunders the national wealth is ‘honourably’ released. Islamic jurisprudence is also best known for its strict and unequivocal stance against the monetary corruption and financial crimes.
The NAO is not strictly in conformity with the ideals of federalism. Through this Ordinance, a central anti-graft investigating body has been empowered to probe into certain matters which are essentially within the exclusive administrative domain of the provinces. The jurisdiction of NAB extends to arrest, investigate and prosecute the officials of the provincial governments. This Ordinance is apparently in conflict with the spirit of the18th Amendment passed by the Parliament in 2010. Thus, the ‘operations’ of NAB have been giving rise to a number of controversies and legal anomalies in the country.
Some two years ago, we just observed similar controversy and conflict between the Punjab government and the NAB officials over arresting and probing various employees of the provincial government. Similarly, there also emerged many legal anomalies regarding the respective jurisdiction of the central and provincial anti-graft bodies as soon as the KP government promulgated the KP Ehtseab Commission Act in 2014. Therefore, it is advisable to establish two parallel but eccentric anti-graft bodies at the federal and provincial levels to effectively and efficiently eradicate corruption in the country. This measure will not only help ease and streamline the Herculean task of accountability in Pakistan but also remove the jurisdictional anomalies associated with it.
Section 9 of the NAO says that a person is said to commit the offence of corruption and corrupt practices if he or any of his dependents owns or possesses any assets or other pecuniary resources disproportionate to his known sources of income. This is an important provision of the NAO which has been very useful and helpful to nab and convict a public office holder involved in corrupt and dishonest practices. Therefore, this provision should be an integral part of any anti-graft legislation in the country. In order to detect corruption on the basis of owning or possessing ‘assets beyond means’, Pakistan also needs to properly introduce and adopt the very system of Income and Assets Declaration (IAD). Such system essentially requires individuals to formally and precisely declare their income and assets before an appropriate legal agency of the state. The public officials from the three branches of government- executive, legislature, and judiciary- are made to duly declare the income and assets of their own, their spouses and dependent children. Moreover, there is also an independent monitoring agency to verify, scrutinize and investigate the IAD statements made by any public officials.
The United Nations Convention against Corruption (UNCAC) has also recognized the IAD system as an important legal instrument to combat corruption worldwide. At present, a large number of countries like United States, UK, Canada, Australia, Japan, Brazil, Argentina, Mexico, Chile, New Zealand, Thailand, India, Estonia, Latvia and Romania are actively following the IAD system in one way or the other to ensure public accountability. We should also duly incorporate the effective tools of IAD regime into the proposed anti-graft legislation in the country.
There are currently numerous flaws and shortcomings in the NAO. They are not only hampering the smooth and efficient functioning of the NAB but are also rendering the entire accountability drive quite controversial. Pakistan certainly needs to revisit and re-enact its anti-graft laws to effectively curb the menace of corruption. Such laws should be free of aforementioned flaws and shortcomings. The directions and guidelines issued by the superior court should also be incorporated in the proposed laws. It is certainly advisable to inflict stringent punishments on individuals involved in corrupt practices rather than letting them go scot-free through ‘subscribing’ to plea bargain and voluntary return provisions.
The NAO gives enormous administrative and legal powers to the Chairman NAB. These absolute powers certainly need to be effectively devolved in the organization. Moreover, instead of the Chairman or DGs of NAB, there should be exercised certain necessary checks on this organization through accountability courts as well as the superior courts in the country. Accountability courts should be given a pro-active role to supervise both the performance of the investigating officers and the pace of the prosecution.
The 90-day remand period should also be revisited and rationalized. At the same time, trail courts should also be empowered to grant bail to the accused persons. In fact, an accused is arrested and detained primarily to ensure his attendance before the investigating authorities. So the very tools of arrest and detention by a state agency should be used as such rather than advancing any political agenda. There should be a focused on improving the professional capacity of the anti-graft watchdog to efficiently handle the typical white-collar crimes. There should also be devised some institutional tools to make such watchdog independent and accountable simultaneously.