The phenomenon of accountability instantly took centre stage in the country’s politics as soon as the Panama Papers scandal surfaced in April 2016. The opposition political parties, especially PTI, readily held “the corrupt elite” responsible for the collective failure of Pakistan as a state. In the absence of independent and vibrant accountability institutions in the country, the apex court proactively punished Nawaz Sharif for not being ‘honest and Ameen’ primarily to meet the formidable challenge of accountability. The core politics of PTI has also been centred on the issue of accountability. Aimed at “bringing accountability to the core of government”, introducing an independent accountability regime was the primary point of the PTI’s manifesto for elections 2018. So, having succeeded in coming into power, PM Imran khan readily renewed his resolve to initiate a rigorous accountability derive in Pakistan.

It is really a good thing that accountability has somehow become one of the most crucial and pressing issues in Pakistan for a year or so. During this period, we have observed a visible improvement in the performance of National Accountability Bureau (NAB), the premier anti-graft body in Pakistan. Indeed, NAB has tended to be a more active, vigilant and vibrant institution. However, at the same time, there have also surfaced a number of controversies regarding the policies and practices of this body. Many believe that the NAB has just targeted some members of Sharif family who are being investigated and prosecuted by it. Recently, Chief Justice of Pakistan has also expressed his dissatisfaction over NAB’s performance. Moreover, PM Imran Khan has hinted at introducing a new accountability regime in the country. He has also just expressed his desire to adopt a Chinese model to eradicate corruption in Pakistan.

An efficient accountability regime essentially comprises two complimentary components; a set of stringent anti-graft laws, and some independent agencies to strictly enforce these laws. Indeed, no accountability regime devoid of these components is capable of delivering anything exceptional. The word ‘accountability’ has been one of the most popular political slogans in Pakistan since its inception. But regrettably, most of the accountability drives in the country have more been the typical witch-hunting exercises to victimise the political opponents during the successive regime. Therefore, in the absence of political will and required resolution on the part of their formulators, all the accountability regimes in the country – 1949’s Public Representative Offices Disqualification Act (PRODA), 1959’s Public Offices Disqualification Order (PODO) and Elective Bodies Disqualification Order (EDBO), 1997’s Ehtesab Act, and 1999’s National Accountability Ordinance (NAO) - badly failed in evolving some vibrant accountability institutions in Pakistan.

General (r) Pervez Musharraf announced his so-called seven-point agenda soon after coming to power in 1999. Ensuring swift and across-the-board accountability in Pakistan was an essential part of this agenda. For this purpose, replacing the Ehtesab Act, 1997, he readily promulgated his much-trumpeted National Accountability Ordinance, 1999 in the country. However, this law too – like its predecessor – failed to effectively curb corruption. Political pragmatism and expediency instantly overshadowed his entire accountability drive as soon as he decided to promulgate the notorious the National Reconciliation Ordinance (NRO) in 2007. Later, his policy of ‘political reconciliation’ was also equally pursued by all succeeding political regimes in the country.

Unlike the previous anti-graft laws in Pakistan, the National Accountably Ordinance, 1999 introduced the very practice of plea bargaining – a legal mechanism enabling the NAB officials to recover ill-gotten money and assets from individuals. Paving the way for the Plea Bargain clause, the preamble of this ordinance 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.” In fact, modifying the well-known legal presumption of innocence- “innocent until proven guilty” - the Plea Bargain clause has given rise to a novel presumption of innocence in favour of a person who pleads guilty.

Section 25 of the NAO contains the ‘Plea Bargain’ and ‘Voluntary Return’ provisions. These provisions empower 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. Moreover, under section 10 of this Ordinance, a person who commits the offence of corruption can also be punished with imprisonment up to 14 years, with or without fine. However, it has been a general practice that once an accused person returns a portion of ill-gotten money through plea bargain, he is hardly punished by an Accountability Court.

The Plea Bargain clause in the NAO is in conflict with the recognised principles of criminal jurisprudence in the country. Under the law of the land, certain so-called offences against property like theft, extortion, robbery etc., are essentially non-compoundable offences– the offences for which a victim or the court is not legally allowed to make a compromise with the 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.

As a matter of fact, NAB has been more an assets recovery agency than an accountability body. A few years ago, an additional Prosecutor General of NAB submitted a report in the Supreme Court of Pakistan claiming to have recovered Rs263 billion over 15 years. NAB has also been recovering amounts from loan defaulters of financial institutions. It has also been tasked to recover outstanding dues from the electricity defaulters. It is quite unfortunate that the premier anti-graft body, which is supposed to launch a rigorous accountability drive in country, was deliberately confined to recover outstanding loans and utility dues from people.

The NAO is generally dubbed a Draconian law since it contains a number of controversial 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 does also not allow Accountability Court to grant a bail to the accused which is one of his recognized legal rights. Similarly, it empowers Accountability Court to grant NAB officials a remand of the accused for as many as 90 days. This extended period of remand is sometime both unnecessary and unjustifiable. Therefore, an ideal accountability regime should be free of aforementioned flaws and shortcomings. 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 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.

(To be continued)

 

The writer is a lawyer and columnist based in Lahore.

 mohsinraza.malik@ymail.com

@MohsinRazaMalik