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