UNTIL two years ago, NAB was under fire for being an ineffective, compromised organisation. Now, the pendulum has swung the other way: all and sundry are complaining that NAB is exceeding its limits and has draconian powers. Why this swing? When Musharraf promulgated the NAB Ordinance, 1999, he was the ‘usurper’ so his action against two political parties was perceived as being motivated to prolong his rule. It is another matter that he made an extra-legal agreement with the PML-N and let them off the hook, and prosecuted Zardari half-heartedly.
Both the PPP and PML-N governments after Musharraf soft-pedalled the accountability part of governance for 10 years under the pretence of the Charter of Democracy. They chose the next NAB chairman after assessing him to be ‘safe’.
Since the incumbent chairman has taken over, things have gone contrary to the expectations of the two parties. The present outcry against NAB seems to stem from three factors: a) vested interests being hit, b) unfair provisions of the NAB law; and c) NAB’s overenthusiasm.
The Panama leaks were a God-given opportunity for a reinvigorated NAB. Support from the judiciary and army made the task doable. For the first time in the country, the accountability process was not affected by a change of government. A sitting prime minister was sent home ignominiously on specific charges by the highest court, rather than via a general order alleging corruption as in the past. In this context, the hue and cry against NAB by the affected parties is understandable.
No one realised the unfettered powers of the accountability body.
What is not understandable is that most people never realised the unfettered, immense powers of NAB and its chairman. They have powers to arrest anyone, either during the inquiry or investigation stage, through an internal approval mechanism, where the chairman’s judgement is final. The arrest is for 90 days and bail is barred by the law. These terms are harsher than for one accused of murder.
While in most cases, the arrest of a politician boosts the latter’s political standing, for a bureaucrat or an academic it is like a death sentence. His honour and standing in society are gone forever. It seems that since achieving sustainable convictions is rare, NAB resorts to arrests to demonstrate performance and instil fear.
The argument often given is that an accused in custody is more cooperative .This means that it is considered alright to arrest on hearsay and then hope to find evidence by exerting pressure on the individual in custody.
These unquestioned powers to arrest without having to go to court or an independent forum must be reviewed for the sustainability of the accountability process as well as to restore officialdom’s confidence to resume work. After all, the prosecution’s material can always be presented before court to obtain a conviction and send the individual to jail.
Section 9 (a) VI of the NAB Ordinance allows action against a person if he “misuses his authority so as to gain any benefit or favour for himself or any other person….” Note this is misuse of authority without necessarily involving money. I suspect this is the law under which the vice chancellor and other officials of the Punjab University were arrested.
Where is the need for NAB to fix all ills in society? When there is no allegation of financial corruption against a public servant, the matter should be left to the accountability forums of his department. Why should it be NAB’s worry if someone has appointed his brother-in-law or neighbour without following the procedure, for considerations other than money?
Similarly, a large portion of NAB’s time and resources are spent on investigating and prosecuting housing scams or Ponzi schemes. While that may be the need of society, some other agency should handle it rather than allowing NAB’s time to be diverted from fighting mega corruption cases in government departments.
Decisions like handcuffing academics actually evoke sympathy for the accused and make NAB look bad. Leaking photos of incarcerated persons or giving lucid descriptions of their depressed state is an unfair attempt to humiliate and punish before conviction. In the context of the proposed review of NAB laws, the arbitrary powers of arrest at any stage and for a statutory period of 90 days need to be reviewed in order not to make heroes out of crooks.
The wider mandate to catch cheaters and land scammers and those who act inappropriately in government but not for financial considerations should be struck off the NAB law to enable the accountability body to concentrate on getting convictions in mega corruption cases.
NAB prosecution should be strengthened to convict the corrupt rather than concentrate on getting back part of the loot through plea bargains. It should have an adequate budget to hire the best lawyers; their competence levels should be equal to those of lawyers hired by the accused especially in high-profile cases.
The writer is a former civil servant.
Published in Dawn, November 27th, 2018