Daily Times

A country is known for the quality of its public institutions. Developing sound and strong public institutions is a constitutional obligation with its foundations pillared in democracy, equality, tolerance, social, economic, and political justice. Institutional design and the configuration of its governance must be sensitive to the fundamental rights of the people and its vision aligned with the principles of policy. In Pakistan, the institution of accountability has been wrangling throughout the years. Ostensibly, there exists a political consensus to overhaul the country’s accountability laws and mechanisms. Successive parliaments and federal governments have pledged to reform NAB or replace the premier accountability institution with an empowered, autonomous and transparently functioning organisation, but no one seems interested in demanding stronger, more independent institutions.

National Accountability Bureau (NAB) is an autonomous apex body to root out corruption from the body polity of Pakistan. For its intent and purpose, the NAB ordinance was a remarkable piece of legislation in the law-making history of Pakistan. The failures have come at a cost. Untethered from the constraints of the judiciary and unaccountable in any real sense to any other institution in the dispensation of its brand of accountability. Today, NAB is riding roughshod over politicians, bureaucrats, and people from many walks of life. The law in its present form allows NAB discretion that automatically translates into selectivity in the application of these powers. Indeed, it is not surprising that opposition leaders have faced the brunt of this accountability while various people associated with the ruling alliance facing similar accusations enjoy the fruits of unfettered freedom. The hounding and arrests of many bureaucrats on such charges lead to near-paralysis in decision-making is a case in point.

The second amendment made in the National Accountability Bureau (NAB) law through a presidential ordinance is a mix of good, harsh and controversial provisions, prone to much confusion. The proposed legislation tweaks several other aspects of the National Accountability Ordinance 1999 as well. According to the ordinance, “All matters about Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer of taxation,” will be dealt with following the revenue or banking laws and will be transferred from the accountability courts to the courts of competent jurisdiction. The feature of the ordinance is the exclusion of the federal and provincial cabinets, the business community, and collective decisions of the committees or sub-committees, Council of Common Interests, National Economic Council, National Finance Commission, Executive Committee of National Economic Council, Central Development Working Party, Provincial Development Working Party, Departmental Development Working Party and State Bank of Pakistan from the ambit of NAB. By the new ordinance, NAB cannot proceed against “any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office. Procedural lapses in any public or governmental work, project, or scheme unless it is shown that a holder of public office or any other person has been conferred or has received any monetary or other material benefits from that particular public or governmental work.”

The law in its present form allows NAB discretion that automatically translates into selectivity in the application of these powers.

The exclusion of certain classes determined the jurisdiction of NAB, which is now limited to peon only. The law is discriminatory as it protects certain persons and classes, which is against the spirit of Article 25 of the Constitution.

The government also proposed to omit the word “non-extendable” from clause (i) of sub-section (b) of Section 6 National Accountability Ordinance 1999 that pertains to the extension of tenure of the NAB chairman, currently four years. It is a settled principle of interpretation that the words in a provision cannot be read and interpreted in isolation. The meaning and scope of a provision are determined by looking not at the isolated words used therein but by reading its text in context. The relevant provision of the Constitution is, therefore, to be read in its immediate context as well as in the overall scheme of the constitutional appointments. An amendment can be made by the legislature, not only to change the law but also to clarify the position. On any aspect as regards which the law is vague or silent the amending provision removing such vagueness or silence can certainly be taken as guidance for the construction of the unamended provision. Further, the rules of interpretation of amendments of a statutory rule. If the language of the statute on a literal construction is clear, unambiguous and not absurd, it is not permissible for the court to take into account any subsequent amendment in interpreting the provision. Subsequent legislation may be looked into to fix the proper interpretation to be put on the statutory provision as they stood earlier. A declaratory or explanatory amendment is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous law; if a statute is merely declaratory or curative, the retrospective operation is generally intended. The Constitution postulates that the ordinance-making power is legislative power and an ordinance shall have the same force as an act. An ordinance should be clothed with all the attributes of an act of legislature carrying with it all its incidents, immunities, and limitations under the Constitution. In a constitutional democracy founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law that is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution.

The jurisprudence regarding appointment and extension of public office holders has been elucidated by the apex courts in past through judgments. Despite that, proposing an amendment regarding the extension of tenure is unfathomable and a mystery to be solved in Pakistan. It seems that the government no longer intends to seek opposition consensus over the NAB law. It is railroading of the electoral law amendments, despite claims that it would seek opposition consent; raises the fear that it might try to bulldoze these measures, which would also have the effect of reducing NAB to a mere government department, subordinate to the whims of the government. The government’s tendency to extend tenures of high officials rather than making a fresh appointment, as in the case of the COAS at the beginning of the year, should be kept in check. The purpose of tenures is not just to provide convenience, but to provide the basis of independence to those who serve the state. They must not be converted into servants of the government. It was declared by Chief Justice Sir Edward Coke of England in the Commendam case in the year 1616 regarding the powers of King James I, “Howsoever high you may be; the law is above you.”

The writer is a legal practitioner and a columnist. He tweets @legal_bias and can be reached at shahrukhmehboob4@gmail.com.