NAB Un­der Fire

While money doesn’t buy love, it puts you in a great bar­gain­ing po­si­tion.

Southasia - - CONTENTS - — Christo­pher Mar­lowe By Huza­ima Bukhari & Dr. Ikra­mul Haq

The Supreme Court of Pak­istan on Novem­ber 1, 2016 took a se­ri­ous no­tice of in­ac­tion by the Na­tional Ac­count­abil­ity Bu­reau (NAB) in coun­ter­ing ram­pant cor­rup­tion in Pak­istan. The apex court also showed se­ri­ous reser­va­tion about the way pro­vi­sions re­lat­ing to vol­un­tary pay­ments were be­ing abused. The Chair­man NAB de­fended the per­for­mance of his or­gan­i­sa­tion and le­gal­ity of pro­vi­sions re­lat­ing to plea bar­gain­ing. The moot ques­tion re­mains the ef­fec­tive­ness of NAB, which was es­tab­lished to “erad­i­cate cor­rup­tion and cor­rupt prac­tices and hold ac­count­able all those per­sons ac­cused of such prac­tices and mat­ters an­cil­lary thereto.”

In the wake of se­vere crit­i­cism of ac­cept­ing the plea bar­gain re­quest of Mush­taq Ah­mad Raisani, Balochis­tan's for­mer fi­nance sec­re­tary as well as Sohail Ma­jeed Shah, the con­trac­tor and al­leged front man of Khalid Lan­gove, the for­mer ad­viser to the chief min­is­ter of Balochis­tan for fi­nance, the Chair­man of NAB came out to de­fend his ac­tion, say­ing “such pro­vi­sions ex­ist in the laws of many

coun­tries and not only in Pak­istan.” He said the plea bar­gain­ing pro­vi­sion "helps re­cover money from loot­ers and plun­der­ers.”

While speak­ing to me­dia on De­cem­ber 21, 2016, the NAB Chair­man said that un­der sec­tion 25(b) of the Na­tional Ac­count­abil­ity Ordinance, any ac­cused can place a re­quest for plea bar­gain­ing. Any such re­quest, he said, “is thor­oughly re­viewed keep­ing the opin­ion of le­gal ex­perts on the case in mind and only then the re­quest for plea bar­gain is ac­cepted, sub­ject to ap­proval by the ac­count­abil­ity court. He claimed that there is noth­ing il­le­gal about it and that the NAB since its in­cep­tion had re­cov­ered Rs. 285 bil­lion us­ing this pro­vi­sion. He also claimed that NAB “de­posits each and ev­ery penny that is re­cov­ered through the process of plea bar­gain in the na­tional trea­sury.”

The NAB Chair­man, while de­fend­ing the pro­vi­sion of plea bar­gain­ing, ex­plained that “a per­son who con­fesses to the crime be­comes in­el­i­gi­ble to par­tic­i­pate in na­tional pol­i­tics for a pe­riod of 10 years as well as in­el­i­gi­ble to take a loan from any bank or fi­nan­cial in­sti­tu­tion and if he is a gov­ern­ment em­ployee, the ap­pli­cant stands re­moved from his job.” He cat­e­gor­i­cally re­futed re­ports that “NAB re­ceives a share once the plea bar­gain is fi­nalised.” Ac­cord­ing to him "what­so­ever amount re­ceived is de­posited in the na­tional ex­che­quer."

Ac­cord­ing to press re­ports, on Jan­uary 1, 2017, Ac­count­abil­ity Court II of Quetta re­turned with some ob­jec­tions the plea bar­gain ap­pli­ca­tion of Mush­taq Raisani, ap­proved by the Ex­ec­u­tive Board of NAB, of re­turn­ing Rs. 2 bil­lion to the na­tional ex­che­quer.

On Jan­uary 2, 2017, the Supreme Court, while hear­ing suo moto case No.17 of 2016 about the con­sti­tu­tion­al­ity of sec­tion 25(a) of the Na­tional Ac­count­abil­ity Ordinance, 1999 [“the NAB Ordinance”] di­rected the At­tor­ney Gen­eral to present the gov­ern­ment’s stance on this pro­vi­sion. On 7 Jan­uary, 2017, the gov­ern­ment de­cided to amend the NAB Ordinance through a Pres­i­den­tial Ordinance pro­vid­ing that plea bar­gain and/or vol­un­tary pay­ment would only be through com­pe­tent court and the pub­lic of­fice-holder avail­ing the same would be dis­qual­i­fied for life and pub­lic ser­vant shall deemed to be dis­missed from ser­vice.

Sec­tion 25(a) of the NAB Ordinance — com­monly called vol­un­tary re­turn — prior to amend­ment, read as un­der:

“Notwith­stand­ing any­thing con­tained in sec­tion 15 or in any other law for the time be­ing in force, where a holder of pub­lic of­fice or any other per­son, prior to the au­tho­riza­tion of in­ves­ti­ga­tion against him, vol­un­tar­ily comes for­ward and of­fers to re­turn the as­sets or gains ac­quired or made by him in the course, or as the con­se­quence, of any of­fence un­der this Ordinance, the Chair­man NAB may ac­cept such of­fer and af­ter de­ter­mi­na­tion of the amount due from such per­son and its deposit with the NAB dis­charge such per­son from all his li­a­bil­ity in re­spect of the mat­ter or trans­ac­tion in is­sue: Pro­vided that the mat­ter is not

sub ju­dice in any court of law.” Sec­tion 25(b) of the NAB Ordinance prior to amend­ment was:

Where at any time af­ter the au­tho­riza­tion of in­ves­ti­ga­tion, be­fore or af­ter the com­mence­ment of the trial or dur­ing the pen­dency of an ap­peal, the ac­cused of­fers to re­turn to the NAB the as­sets or gains ac­quired or made by him in the course, or as a con­se­quence, of any of­fence un­der this Ordinance, the Chair­man, NAB, may, in his dis­cre­tion, af­ter tak­ing into con­sid­er­a­tion the facts and cir­cum­stances of the case, ac­cept the of­fer on such terms and con­di­tions as he may con­sider nec­es­sary, and if the ac­cused agrees to re­turn to the NAB the amount de­ter­mined by the Chair­man, NAB, the Chair­man, NAB, shall re­fer the case for the ap­proval of the Court, or as the case may be, the Ap­pel­late Court and for the re­lease of the ac­cused.

The scope of sec­tion 25(a) — vol­un­tary re­turns — was quite dif­fer­ent from that of sec­tion 25(b) — plea bar­gain —as ev­i­dent from the plain read­ing of both the pro­vi­sions. Vol­un­tary re­turn was pos­si­ble only be­fore au­tho­riza­tion of in­ves­ti­ga­tion, and ac­cep­tance of of­fer of re­turn of as­sets/funds by the NAB Chair­man was barred if the mat­ter was sub ju­dice in any court of law. The pro­vi­sion re­lat­ing to plea bar­gain was separately dealt in 25(b) of the NAB Ordinance. It was not un­der ju­di­cial re­view in Suo moto Case No.17 of 2016. There was thus no bar on NAB un­der re­strain or­der of Oc­to­ber 24, 2016 in the said case to en­ter into plea bar­gain as oth­er­wise prop­a­gated widely in me­dia. The mix­ing up of two pro­vi­sions cre­ated the con­fu­sion that NAB was act­ing un­law­fully by ac­cept­ing plea bar­gains af­ter court’s or­der.

Even af­ter the amend­ment by the Pres­i­den­tial Ordinance on Jan­uary 7, the onus lies on the par­lia­ment to amend or re­draft the law to pro­vide for im­pris­on­ment.

The Supreme Court in its or­der dated 24-10-2016 in suo moto case No.17 of 2016 re­strained the NAB Chair­man, or any other of­fi­cer au­tho­rized by him in this be­half, from ac­cept­ing any of­fer of vol­un­tary re­turn in terms of sec­tion 25(a) of the NAB Ordinance. The Court also or­dered ac­tion against key of­fi­cers in NAB over vol­un­tary re­turn of con­fis­cated funds.

The Supreme Court on Septem­ber 02, 2016, dur­ing hear­ing of Civil Ap­peal No.82-K of 2015, no­ticed abuse of au­thor­ity by NAB while tak­ing cog­nizance of petty mat­ters in terms of sec­tion 9 of the NAB Ordinance. The NAB Ordinance, the court ob­served, was pri­mar­ily leg­is­lated to counter cases of mega scan­dals and ini­ti­ate pro­ceed­ings against ac­cused per­sons who were in­volved in scan­dals of mega cor­rup­tion and cor­rupt prac­tices. How­ever, the NAB au­thor­i­ties af­ter issuance of call up no­tices have been sug­gest­ing to the ac­cused that they may opt in terms of sec­tion 25(a) of the Ordinance, to come for­ward with the of­fer of vol­un­tary re­turn of the amounts that have al­legedly been ac­quired or earned il­le­gally by them.

The Court ob­served that sec­tion 25(a) of the NAB Ordinance em­pow­ers the Chair­man of NAB, to ac­cept such vol­un­tary re­turns made by the ac­cused per­sons and the amount is

de­posited with NAB in in­stal­ments at the dis­cre­tion of the Chair­man. The Court ob­served: “Alarm­ingly, on pay­ment of cer­tain por­tion of the amount, such per­son is given clean chit by the NAB to re­join his job. The fre­quent ex­er­cise of pow­ers un­der sec­tion 25(a) (ibid) by the NAB on one side has mul­ti­plied the cor­rup­tion usurp­ing the ju­ris­dic­tion of the F.I.A and Anti-Cor­rup­tion agen­cies and de­feated the ob­ject of the Ordinance on the other hand.”

The bench hear­ing Civil Ap­peal No.82-K of 2015 re­ferred the mat­ter to the Chief Jus­tice for ex­am­in­ing the vires of sec­tion 25(a) of NAB Ordinance vis-à-vis un­bri­dled pow­ers of the Chair­man NAB to ac­cept the of­fer of vol­un­tary re­turn from a per­son re­gard­less of the size of the amount by any mode adopted at his dis­cre­tion which falls within the do­main of the ju­di­ciary. The Chief Jus­tice di­rected the of­fice to fix the mat­ter treat­ing it as pub­lic in­ter­est lit­i­ga­tion un­der Ar­ti­cle 184(3) of the Con­sti­tu­tion.

The Supreme Court in its or­der men­tioned as un­der:

“Once a per­son ac­cused of cor­rup­tion or cor­rupt prac­tices vol­un­teers to of­fer to re­turn the amount he has pock­eted or gained through il­le­gal means, prima fa­cie, can­not hold any Gov­ern­ment/Pub­lic Of­fice, as the very act of his of­fer­ing the vol­un­tary re­turn falls within the def­i­ni­tion of “mis­con­duct” un­der the ser­vice law and calls for ini­ti­a­tion of dis­ci­plinary ac­tion against the ac­cused per­son(s). The re­port filed by the NAB men­tions that hun­dreds of em­ploy­ees/civil ser­vants and oth­ers who have vol­un­tar­ily re­turned the amounts in terms of Sec­tion 25(a) (ibid) are still en­joy­ing their of­fice, with­out be­ing ex­posed to any de­part­men­tal pro­ceed­ings which has fur­ther mul­ti­plied the cor­rup­tion in the coun­try”... This in­ac­tion on the part of the de­part­men­tal au­thor­i­ties to­wards the ac­cused has pa­tron­ized cor­rup­tion, by pro­vid­ing a win­dow to the NAB as well as to the em­ploy­ees, who plun­der pub­lic money and af­ter pay­ing back a por­tion of the al­leged amount of cor­rup­tion/cor­rupt prac­tice, con­tinue in their jobs”.

In Para 6 of the judge­ment, the Court fur­ther ob­served: “In the given cir­cum­stances, what has fur­ther dis­turbed us is that the amounts so col­lected by the NAB in in­stall­ments or oth­er­wise is not be­ing de­posited in its en­tirety with the con­cerned Gov­ern­ment/Depart­ment forth­with, in­stead some of the amount un­der the garb of Rules or oth­er­wise is re­tained by the NAB au­thor­i­ties for dis­tri­bu­tion to its of­fi­cials to­wards award.”

The afore-stated dis­cus­sion shows that the mat­ter which was sub ju­dice be­fore the Supreme Court re­lated to vol­un­tary ac­tion where no ap­proval of court was re­quired and not that of plea bar­gain­ing where ap­proval of ac­count­abil­ity court was a pre­req­ui­site. Even af­ter the amend­ment by the Pres­i­den­tial Ordinance on Jan­uary 7, the onus lies on the par­lia­ment to amend or re­draft the law to pro­vide for im­pris­on­ment even in cases where vol­un­tary pay­ment or plea bar­gain­ing is of­fered/ ac­cepted by the com­pe­tent court. Au­to­matic dis­qual­i­fi­ca­tion or re­moval from ser­vice on plea bar­gain­ing ac­com­pa­ny­ing the pay­ment is now pro­vided. If im­pris­on­ment is to be made manda­tory as well, amend­ment in NAB Ordinance is re­quired. It is de­bate­able whether it will be help­ful in re­cov­ery looted/em­bez­zled funds/ as­sets or not. In case of manda­tory im­pris­on­ment, the of­fend­ers may opt for jail rather than re­turn­ing the looted/em­bez­zled money. The writ­ers, lawyers and part­ners in HUZA­IMA IKRAM & IJAZ, are Ad­junct Fac­ulty at La­hore Univer­sity of Man­age­ment Sci­ences (LUMS).

Balochis­tan's for­mer fi­nance sec­re­tary, Mush­taq Ah­mad Raisani in po­lice cus­tody.

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