KARACHI: The Supreme Court has ruled that the authority of the National Accountability Bureau chairman to accept offer of voluntary return of the illegally earned money by corrupt public servants is prima facie in conflict with provisions of the Constitution.

The ruling was handed down in a detailed order in a NAB appeal against an accountability court’s decision of refusing the remand of a private citizen in a fraud case. The order was issued by the SC office on Tuesday.

The court observed that it needed to examine the vires of Section 25(a) authorising the NAB chairman to accept the offer by a person of voluntary return of the money illegally earned by him at the touchstone of the Constitution.

“This provision prima facie is in conflict with the provision of Constitution, where such power can only be exercised by a judicial forum as after payment of voluntary return, the person goes scot-free without any stigma on his career and can contest the elections and or can continue in public office, as the section does not provide any disqualification, as against the disqualification provided under Section 25(b) of the NAB Ordinance,” the court ruled.

Besides, it observed, there was no yardstick provided in the NAB Ordinance and the rules framed determining the amount of voluntary return.

The court directed its office to place the order before the Chief Justice of Pakistan for passing an appropriate order to treat the matter as a suo motu petition under Article 184(3) of the Constitution.

The court observed that prima facie, the aforesaid issues raised the question of public importance having far-reaching effect and direct bearing on the fundamental rights of citizens of Pakistan in order to lay down the principles regarding cognisance of NAB in corruption matters under Section 9 of the NAB Ordinance.

The order said the court needed to further examine whether NAB could extend its jurisdiction to take cognisance of the cases which fell within the domain of anti-corruption authorities and or the Federal Investigation Agency. It said the court had noticed that NAB had started taking cognisance of petty matters.

Referring to a list of inquiries and investigations involving embezzled amount of less than Rs100 million, the court observed that it was evident from the list that prima facie the inquiries and investigations undertaken by NAB were not of mega scandals and “apparently petty matters have been enquired into on the complaints”.

The court observed: “This is not the wisdom behind legislation of NAB Ordinance. The NAB Ordinance was primarily legislated to counter mega scandals and book the persons who are involved in mega scandals of corruption and corrupt practices.”

It also noted that once an accused, who plundered colossal sums of money, deposited a portion of the amount, that too in instalments, he stood discharged from all his liabilities in respect of the transaction and went back to join his job.

“This frequent exercise of powers of ‘voluntary return’ by the NAB chairman has in fact multiplied corruption on the one side and defeated the object of the NAB Ordinance on the other side,” the order said.

The court observed that the provisions of Section 25(a) were not meant to allow corrupt public servants to get a clean chit from NAB authorities by paying a portion of the embezzled money. “What is more shocking for us is that no departmental proceedings are initiated against any of such accused, who entered into voluntary return.”

The court observed that the option of voluntary return by a public servant fell within the ambit of misconduct and departmental proceedings needed to be initiated against him once he admitted that he had earned money by corruption. “After admitting this fact, he cannot hold any public office either in federal or provincial government or in any state-owned organisation,” it ruled.

The court directed NAB, federal and provincial governments and statutory authorities to place on record the list of the cases being investigated by the NAB authorities as well as references pending before NAB courts involving an amount of less than Rs100m. They were also directed to submit to the court the list of people and civil and public servants who had entered into the voluntary return scheme. They were asked to inform the court about the action taken against the officials whose offer of voluntary return was accepted by NAB.

Published in Dawn, September 8th, 2016