Daily Times

The National Accountability Bureau (NAB) has been a controversial institution, drawing the ire of both who claim it has not done enough and those who claim it has done more than its mandate. Whether NAB has stifled good governance or not and whether the economy can excel with NAB doing its usual cannot have clear-cut answers. However, objectively speaking, there was and is lots of room for improving the system of accountability in this country. In fact, the chairman of NAB faced criticism when he said that NAB was working according to its law, and if the powers that be wish it to work in any other way they should amend the law. The government firmly adopted the advice of the chairman of NAB.

It is an open secret that bureaucrats in Pakistan have not only slowed down the system of decision making but have essentially halted taking decisions wary of NAB taking them into custody for long periods of time, and their reputations being tarnished for what, at times, were mistakes made in good faith that did not materialise as expected. One may not have to look back too far away; the suicide ofAsad Munir,in fear of his reputation being stained,elucidates NAB’s high-handedness. In a previous column I had highlighted how NAB detains first and investigates later, and sometimes, these investigations take years. The cases of Ahad Cheema, Shehbaz Sharif, Saad Rafiq, SharjeelMemon, Kamran Michael, Agha Siraj Durrani, Babar Awan, Mehmood Khan and Fawad Hassan Fawad have proved that these were cases that only generated headlines without much being proved at the trials.

While reservations about introducing reforms in the law in a dictatorial manner, one that this government is used to, without any consultation with the public and experts, and even a debate in parliament through an unconstitutional and politically incorrect use of ordinances can be squarely criticised, it cannot be stressed that the amendments in the law should be applauded.

One of the major aims of the amendment is to address the issue of cases where misuse of authority is concerned but there is no allegation of accumulation of illegal assets. This is a welcome reform in the accountability laws where a civil servant or a public representative should not be put in jeopardy for only making a wrong decision, which can, at times, be a matter of subjective reasoning. The new amendment states that where there is an allegation of misuse of authority, it would have to be shown that there was illegal gratification attached to such a decisionbefore a person could be prosecuted. There is no anomaly in that; courts in Pakistan have been interpreting the NAB ordinance along such lines.

In the Qamar-ul-Islam case (reported as 2019 PCrLJ 582), the Lahore High Court granted bail to persons accused of approving the bid for installing water filtration plants allegedly in violation of the Punjab Procurement Rules, 2014. The court noted that no allegation of receiving any kickback, commission or illegal gratification against petitioners, their relatives or friends was on record, and the only allegation against petitioners was that they misused their authority in violation of laws and rules.

The second positiveamendment made to the law is on the issue of taxation, levies and imposts. Here there were overriding jurisdictions of many different institutions. I had in a previous column commented on this precariousness in the law; when the government had introduced a new Benami law, I had noted thatthe Economic Crime Wing of the FIA was already established to investigate black money in addition to the notorious NAB that could arrest any person at willwhen according to NAB a case is made fora person owning assets beyond his known means of income or abuse of public office at the expense of the national exchequer. The inquiries and investigations have been so minute so as to include within their ambit helicopter rides. It will be a great reform in the law where NAB deals with cases of assets beyond means and misuse of authority where illegal gratification is involved rather than be entangled in matters that they are not experts at and do not understand.

Another important amendment is that the NAB law will not be applicable to any person who is not a public officer holder or has a relation with a public office holder

A clear demarcation between the jurisdictions of the regulators will definitely help the economy. Where there is no case of commonly understood financial corruption involved, NAB should stay away rather than complicate matters. However, it remains within the government’s responsibility to kick start and activate regulators such as the FBR and SECP so that violations of the law do not go unchecked. Until now, the government has not revealed any agenda on how it plans on doing that, and it seems that the ordinance was passed in haste without properly deciding where the cases taken out of NAB’s jurisdiction would fall and how they would be efficiently managed.

The ordinance also does not clearly answer the question of prospective overruling.What of those cases that have been decided or are about to be decided by the NAB courts, how are they to be transferred and or proceeded, the ordinance does not provide any structure,and the government has not reserved to itself any rule-making power. This will cause the same mischief and uncertainty that the amendment was bought to resolve.

Another important amendment is that the NAB law will not be applicable to any person who is not a public officer holder or has a relation with a public office holder. The Pakistani courts have tried to maintain a distinction between corruption offences and civil disputes, and this amendment will ultimately provide clarity on this area of the law.

In the recent case of Hashmatullah (reported as 2019 SCMR 1730), the Supreme Court held thatthe allegation against the accused was that numerous investors had invested in the accused’s business, and he kept paying profits to investors for some time, but later on stopped paying profits and refused to return the invested amount.The case appeared to be a classic case of a civil dispute based upon the alleged breach of agreements for which remedies are laid somewhere other than in a criminal court. The Supreme Court, therefore, allowed the appeal and quashed the conviction of the accused.

The amendment in relation to procedural lapses is desirable because if a rule has been violated but there is no illegal gratification involved then NAB shall not have jurisdiction. The job of the NAB is to go after corruption not after inefficiency. Action,therefore, shall not be taken against any public office holder over the rendition of any advice, opinion or report by them unless proof of corruption is present. Had this been the law back in the day, Asad Munir would not have been compelled to take his own life. In the Qamar-ul-Islam case (reported as 2019 PCrLJ 34), the Lahore High Court held that appointments without following procedure -through advertisements-isnot enough to probe allegations of misuse of authority since such appointments may only be a procedural irregularity.

The amendment that assets will be assessed on the basis of fixed criteria will ease trial of corruption offences, wherein evidence can now not be led to only prove the worth of real estate when rates set by the government have already been provided.

Overall, the amendment has done more good than bad, even though most of the amendments were mellow so that the government may escape political backlash. Someday, maybe, braver reforms will be made, such as granting trial courts the power to grant bail in NAB cases or empowering NAB to conduct corruption investigations against members of the armed forces.

The writer is a barrister, who has an interest in Pakistani current affairs, economy, constitutional developments, foreign policy and international law