In a judgement, the Supreme Court held that National Accountability Bureau (NAB) must satisfy and ensure that ‘reasonable grounds’ exist for rejection of post-arrest bail. The eight-page judgement authored by Justice Mansoor Ali Shah held that, “Mere accusation of an offence would not be sufficient to disentitle an accused from being bailed out. There should be ‘reasonable grounds’ as distinguished from mere allegations or suspicion.” The three-member bench, headed by Justice Adil Bandial adjudicated that the onus of providing tangible material and evidence against the accused was on the NAB to ensure continued captivity. The view taken by the court affirmed that its utmost priority is protection of civil liberties and fundamental freedoms of the individual.
The accountability outfit, a dictatorship-era body, has come under fire from the Supreme Court before. In July 2020, the Supreme Court ruled that the National Accountability Bureau had violated the rights to fair trial and due process in the arrest of opposition leaders Khawaja Saad and Khawaja Salman. Both were detained for 15 months without reasonable grounds.
That NAB is controversial and draconian is well established by now. Only those who are unaware remain aloof, and might as well be living under a rock. The above judgement affirms faith and confidence in the judiciary as the guardian of fundamental rights.
The NAB’s credibility crisis is multi-faceted. Like with all despotic organisations, the problem starts with the top. Chairman NAB, Justice (R) Javed Iqbal has already displayed inclination for unchecked powers. He once voiced his desire to have a Saudi Arabia style system to deal with the corrupt. This is problematic, not least because he echoes the PTI’s desire to hang a ‘couple 1,000’ people to solve Pakistan’s woes. The chairman’s wish manifests in the conduct of his organisation that operates with impunity. It has mercilessly locked opposition politicians such as Khursheed Shah and Shahbaz Sharif without presenting charges for months on end.
The chairman’s populist remarks have added zero value to garner public trust and confidence, except for maybe, of those deluded enough to agree with the idea of hanging a few thousand. Javed Iqbal’s alleged sexual conduct with the wife of a NAB accused accrued further reputational damage.
The NAB’s partisanship has also passed the dinner table test. The judgement in Khawaja Saad’s case lambasted the body in the following words: ‘‘the bureau seems reluctant in proceeding against people on one side of the political divide, even in respect of financial scams of massive proportion…[but] those on the other side are being arrested and incarcerated for months and years.’’
The use of NAB as a tool to conduct political engineering does right by its architect’s objective. General Musharraf created NAB to force dissidents to switch allegiances and cobble together an abomination in the form of PML-Q. The same template has been employed by the current leadership. The NAB refuses to prosecute and pursue references on government scandals and those involving its key figures.
Examples include Employee Old Age Benefit Institution scandal worth Rs44 billion that alleges involvement of Aleem Khan and Monis Elahi.
The constitutionality of NAB Ordinance also deserves scathing critique. The NAB Ordinance renders Article 12 of the Constitution useless. Article 12 affirms no one must be punished for an act that was not an offence when they did it. Yet, the NAB Ordinance does the opposite. It creates new offences and then applies them with retrospective effect. This is exactly why Geo’s Mir Shakil Ur Rehman was jailed for an offence that predates NAB’s formation. Perhaps, the most astonishingly suspect part of NAB’s constitutionality are the discretionary powers of the chairman. These include sanctioning of inquiries against holders of public office and civil servants, ordering seizure of the property and the authority to arrest people, who can be kept in custody for 90 days without charge.
This stands in stark contrast to the Pakistan Penal Code, which only allows 14 days for investigative custody. Such discretion and concentration of power with one person are an anathema to justice and fair play. In a sense, the concentration of power is quite similar to that which rested with the president under the now discarded 58-2B. Articles 58-2B and NAB Ordinance were orchestrated by General Zia and General Musharraf, respectively. Both reveal a preference to use laws as instruments to consolidate power via unilateral action. One allowed the president to disband an elected parliament, the other allows a chairman to arrest and prosecute anybody they wish.
Furthermore, the NAB Ordinance grants immunity to military officers. While Pakistan Penal Code includes military officers in the definition of public servants, NAB ordinance purposefully excludes them. Military laws include punishments and offences which fall under the Pakistan Penal Code, but grant the option to court martial the officer. The NAB, on the other hand, fails to recognise military officers as public office holders. NAB’s commencement per the ordinance is ‘deemed to have come into force from January 1, 1985.’ The contradictions between NAB and constitution become glaring, again, because this violates the principle of equal applicability of law.
The NAB cannot investigate corruption, malpractice and misuse of public office during the majority of Zia’s era and before. Once again, it reflects the bias of its maker.
Despite cries of foul play by opposition and bureaucracy, there have only been modest changes to NAB Ordinance. The amendments to Section 4 and 9 (mainly to appease the bureaucracy) by the government barely do enough to ensure NAB’s independence and fairness. As long as NAB is used by the government to arm twist rival politicians, there seems no potential for change.