THE time allowed by the Supreme Court to revise the National Accountability Ordinance of 1999 offers a good opportunity to transform this measure into a reasonable instrument that is in accord with due process.
The ordinance was not a good enactment from the very beginning. Extensive revisions in 2001 and 2002 did not make it a fair law. That Gen Musharraf had reservations about across-the-board accountability was confirmed when the first NAB chairman, an upright military officer, chose to resign instead of agreeing to being selective in choosing targets for inquiry and prosecution. As NAB’s actions largely depend on the feed it receives from the information monopoly, the element of selectivity cannot be eliminated.
One hopes that the government will agree to a complete overhaul of the law, because anything less will not meet even the minimum demands of a long overdue reform. That is why the amendments made to the law last month were received with jeers.
The summary for the cabinet for approval of the proposed amendments only refers to NAB having initiated a number of inquiries “against the holders of public office and government servants on account of procedural lapses where no actual corruption is involved. This has enhanced NAB’s burden and has affected working of the federal government. … Further, NAB has also assumed parallel jurisdiction and is inquiring into matters pertaining to taxation, imposition of levies etc and therefore interfering within the domain of taxation regulatory bodies…”
Thus, last month’s amendments to only two sections (4 and 9) of the ordinance only appeared to relieve (friendly) politicians and civil servants of some of their concerns. Neither party was satisfied.
Anything less will not meet even the minimum demands of a long overdue reform.
The civil servants, for instance, have suggested no less than 13 changes in the ordinance and some of them are fair and unexceptionable. The more important suggestions are: (i) the maximum period of physical remand may be reduced from 90 to 15 days; (ii) the accused may be allowed bail under section 497 of the CrPC; (iii) an oversight body be created to keep a watch over NAB’s functioning and to decide critical issues such as the arrest of an accused or approval of a reference; (iv) trial should begin after the final reference is filed, which may not be more that 75 days after arrest; (v) all appointments at NAB should be made subject to selection by the Public Service Commission; (vi) arrest should be made under properly written orders ; (vii) freezing of assets should be subject to a court order and may not exceed the illegal gain; (viii) raids should be conducted under the supervision of magistrates; and (ix) NAB prisons should regularly be visited by magistrates.
Besides, nobody involved with the review process can possibly ignore the Supreme Court’s rejection of sections of the ordinance that provide for voluntary surrender of the loot or purchase of freedom through plea bargain.
The accountability ordinance has been extremely unkind to the chairman of NAB, as it has assigned him responsibilities that should be handled by more than one person, and granted him powers that a person who cares for his health and reputation might be loathe to accept.
The chairman is a complete master of the NAB staff. He may recruit anyone he wishes at whatever terms he pleases. The deputy chairman and the prosecutor general are appointed by the president, but in consultation with the chairman. (In case of the latter, consultation with the CJP was dropped in 2002.)
The chairman doesn’t select judges of accountability courts but these courts can proceed against the accused only on a reference filed by him.
The substantial powers of the chairman include the sanctioning of inquiries against holders of public office and civil servants (serving or retired). He can order seizure of the property of the accused. The most controversial of his powers is the authority to arrest people, hold them in dungeons that are not subject to prison authorities or prison rules.
Under Section 24, an accused must be produced before a court to seek permission to being detained in NAB custody for “a period not exceeding 90 days”. This figure of 90 days entered Pakistan’s security-related laws in the post-9/11 environment, and its inclusion in the NAB law has caused unwarranted suffering to a number of people who have been held in small spaces and in extreme discomfort until they confess or agree to become approvers. This practice amounts to fortune that is prohibited under Article 14(2) of the Constitution. The courts have taken a serious view of such cases and their observations while granting bail to former MD of Pakistan State Oil Sheikh Imranul Haq and Fawad Hasan Fawad after 18 months of detention cannot be cited to the credit of the NAB.
In justification of its torture-like methods NAB often states that it has recovered around Rs1.53 billion and for this Transparency International too has praised NAB in its latest report, but the accountability watchdog is not supposed to replace the state’s tax and revenue collecting agencies.
The most fundamental flaw in the accountability ordinance is that it gives NAB sweeping powers to conduct inquiry, prepare a reference, prosecute the accused and in many cases to punish him. The concentration of so much power in the hands of a single individual is contrary to the minimum demands of justice and fair play. There is much merit in the civil servants’ suggestion that these functions may be divided amongst authorities within a commission external to NAB.
The national accountability regime has no reference to prevention of corruption while the UN Convention against Corruption has a whole chapter on it. If the accountability ordinance is not a proper vehicle for preventing corruption, NAB may be restructured as a commission and prevention may be assigned to one of its branches.
Published in Dawn, January 30th, 2020