When legislators, bureaucracy businessmen, etc, are prosecuted, they do not to try to disprove their guilt, their only defence is to direct public opinion by pointing fingers towards the two indispensable pillars of the State, the Judiciary and the Armed Forces. Recent events, in particular the disqualification of PM Nawaz Sharif for concealing facts and his amazing reaction threatening "revolution", has underscored why accountability about public office holders must take priority. Moreover, it must focus on all pillars of the State to make the anti-corruption campaign a success story. A workable legal framework must be formulated by Parliament to remove the ambiguities and bring these into the ambit to give accountability credibility and true meaning.
The widely held belief is that the NAO applies neither to serving military personnel nor to the judges of the superior courts. About military personnel it is based on the definition of 'holder of public office' in Section 5 of the NAO, which excludes serving members of the Armed Forces. It seems to overlook the fact the NAO vide its Section 4 'extends to the whole of Pakistan and shall apply to all persons in Pakistan' not merely those holding public office. As the NAB position and clarification through its Annual Report 2002 points out, military personnel are subject to a regime of military law far more strictly than any civilian law, the concept of accountability of the Army starts at the sub-unit level and goes on to unit formations, etc till it reaches the any level. Under military laws the military can continue to deal with any conduct that amounts to an offence under the NAO. To end the jurisprudence debate which is tarnishing the image of the Armed Forces and to remove all doubts and ambiguities, Section 5 must be amended suitably to end the exclusion.
Application and ambit of NAO does extend to Judiciary but this is not evident from the NAB case Khan Asfandyar Wali vs Federation PLD 2001 SC 607 that the SC was establishing or confirming any rule that the NAO does not apply to the members of the higher judiciary or they are not amenable to criminal law. Complete judiciary as well its staff falls in the definition of "Public Office holder" therefore only specific constitution provision for the sake of its independence and application of free will to justice would enable the judiciary to stay out of NAB's accountability process.
The NAO under Section 10 awards rigorous imprisonment up to fourteen years and fine equal to the illegal assets accumulated or loss that an accused has incurred to the State and forfeiture of all moveable and immovably property. Many accused from Executive and Legislature were convicted with all three of punishments and Armed Forces personnel have been punished but there have been none from the superior Judiciary, more importantly none by NAB.
By deliberate design, judiciary does not have the requisite on board skills to investigate white collar crimes committed by its members and this shortfall can be filled through an overlapping arrangement with investigation agencies without putting its independence in jeopardy. This was manifest in the success of the JIT created as a Special Purpose Vehicle (SPV) for the PanamaGate. As for holding judges accountable "complaint" cells should be established in the SC and the Provincial High Courts under the supervision of the respective Chief Justices. Public grievances having at least requisite prima facie evidence should be forwarded to the Regional NABs for verification and confirmation of contents so as to make sure they are not frivolous. False and frivolous complaints should be treated as perjury and punishment awarded commensurate to what the accused would have got if the petition had succeeded.
Every complaint having any traction must be put under scrutiny by the Chief Justice of the High Court, this can be converted into open inquiry by the NAB and a reference filed in the High Court when so required, the PanamaGate JIT would be a good precedence to emulate. If found to have any truth the High Court may appoint a special judge for prosecution as the NAB Courts Judges having status that of Session Judges are likely to feel difficulty in handling cases of their colleagues and friends. The SC could do likewise. For purpose of handling the superior judiciary, corruption cases may be referred to NAB Headquarters where a special cell under DG Operations may conduct verification followed by inquiry authorized by Chief Justice (CJ) of Pakistan. Prosecution of all categories excluding SC judges (which should be at the SC level) should be conducted at High Court level with a special Bench formed for this purpose. On basis of inquiry and fact finding by the NAB, CJs may also take action under misconduct and breach of trust of case warranting lenient treatment.
With an excellent administrational strength, power and authority, the Army should play an exemplary role by devising an effective mechanism for making cases of accountability public. This will force other institutions to willingly bow before anti-graft drive. Access to information for selected and referred cases to NAB by the Army with clear-cut demarcation must be laid down to avoid national level leakage of information. This in fact will be a favor to the accused person from the Army who is punished within no time and without availing the two appellate stages of High Court and Supreme Court to plead his innocence. The Frontier Constabulary Balochistan cases should have ideally been prosecuted by NAB with support of evidence provided by the Army.
While NAB has certainly held junior officers accountable there are at least two or three Chairman NAB who are "living far beyond their known means of income". A JIT must be formed to look into the conduct of these officials while in office and the astonishing increase in their assets. One would also look into the taxes paid over the years. One of my colleagues, Colonel Ashiq Hussain Malik (formerly in NAB), says that as soon as Munir Hafeez became Chairman he stopped dozens of enquiries which were reaching trial stage. According to him, one important enquiry about PIA was complete, had Munir Hafeez not stopped those under enquiry from being prosecuted, PIA would not be in the state it is in today. On the other hand, while Lieutenant-General Amjad was a man of great honesty and integrity, some of the persons he chose as his close aides for NAB were outright crooks. One is not surprised that the name of these "patriots" do not appear in the tax directory recently published by FBR. These errants must be prosecuted by NAB and made examples of.
The situation being readymade for malfeasance, in Pakistan today every enquiry, every investigation, every trial, every arbitration, etc reeks of rampant falsification with absolute impunity. The media is already playing a dubious role (1) criticizing the exclusion of the judiciary and the Army from NAB's ambit and (2) while mostly not highlighting all the illegalities uncovered by the PanamaGate JIT Report. Therefore it is vitally necessary that a suitable mechanism must be made by establishing an effective "judicial wing" (manned by senior judicial officers) and a "military wing" (staffed by senior military officers) in NAB to change the perception of across the board accountability. This will allow NAB to function effectively and credibly for the benefit of the State and its people.
(Concluded)
(The writer, a defence and security analyst, acknowledges with gratitude the input by Brigadier Musaddiq Abbasi (retd), former DG NAB)
Copyright Business Recorder, 2017