If actions are judged by intentions, then NAB stands badly exposed by the Supreme Court’s recent landmark judgment in PML-N’s Saad Rafique’s civil petition for bail in the Paragon City reference wherein the court astutely observed that it was not even clear as to what in fact brought the NAB into action in the present case thereby clearly questioning the very purpose of the NAB effort in the first place.
The court noted that the linchpin of the prosecution case, connecting the petitioners with the affairs of the company, was the purported confession statement of an accused turned approver. In complete disregard of the law, however, the approver was not informed by the recording magistrate that he would not be returned to the custody of the bureau nor was a notice of his recording the statement issued to the petitioners, depriving them of an opportunity to cross examine the approver. Further, the court held that the statement was bereft of necessary particulars and was mostly irrelevant even though this was the second attempt by NAB at procuring such a statement as it had earlier failed to do so, inculpating the petitioners from the approver despite the inducement of a pardon from the NAB chairman. Additionally, regarding the allegation that the approval for the housing scheme Paragon City was based on forged documents, no witnesses, documents or particulars were mentioned, no question was ever put to the petitioners and no public functionary was even implicated in the allegation.
Never before has the apex court been so forthright and perspicacious about the true nature and purpose of the accountability process in this country and the unfair means adopted to procure convictions at any cost. The court did not merely describe one instance of injustice but rather the endemic abuse of power under the garb of “accountability” where accountability means to persecute, not prosecute; to punish without due process of law; and to politically engineer and thereby negate the purpose of accountability itself. Such accountability is an attack on democracy and the parliamentary system and reflects a contumacious breach of the social contract between a state and its citizens, rendering it an issue of direct importance for every member of society.
The court also observed that while NAB seems reluctant to proceed against people on one side of the political divide even in respect of financial scams of massive proportion, those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause even when the law mandates investigations to be concluded expeditiously and trial to be concluded within 30 days; but nonetheless, investigations are often not concluded for months and cases remain pending for years. The Supreme Court concluded, “The present case is a classic example of trampling of fundamental rights, unlawful deprivation of freedom, and liberty and the complete disregard for human dignity as guaranteed by the Constitution…”
The judgment comprehensively shatters the accountability watchdog’s tall claims of across-the-board and impartial accountability and shows that the real intent is and has always been political engineering whereby, in the words of the Supreme Court, “pygmies” are opportunistically selected, nurtured, promoted, and brought to prominence and power. The above also implicitly brings into question the fairness of the 2018 general elections.
This alarming state of affairs necessitates that convictions already procured by NAB of political personalities be re-examined including, for example, the convictions of Nawaz Sharif and Maryam Nawaz in the Avenfield case. When viewed in light of above observations of the Supreme Court, reasonable minds will invariably enquire about electoral developments in the recent past and further especially about the speed and timing of their convictions just before the 2018 general elections whilst by contrast the trial of Asif Zardari in the fake accounts case and the Park Lane reference has yet to begun and the foreign funding case against PTI continues to linger before the Election Commission of Pakistan since November 2014. Other than compliance with extraneous requirements, what explains this difference?
The conviction of Nawaz Sharif in the Al-Azizia case has already been tainted by the proven misconduct of Accountability Court Judge Arshad Malik and this judgment adds another nail to its coffin. And in the backdrop of this judgment, it emerges that the aforementioned convictions of Nawaz Sharif and Maryam Nawaz are less likely to survive appellate scrutiny and are more likely to become further examples of the selective accountability designed to pressure political opponents into submission and compliance that the Supreme Court has warned about.
Since even the obiter dictum of the Supreme Court is binding on all courts (as held by the Supreme Court in Shahid Pervez v Ejaz Ahmad and others of 2017 SCMR 206), the burden will now be upon the judiciary to follow the lead of the apex court and to hold the accountability watchdog to the legal standards enunciated by the Supreme Court without fear or favour.
It is the integrity of the accountability process that needs to be preserved and protected including where necessary, from the excesses and abuses of the accountability watchdog itself. This burden may presently be on the judiciary but it should be shared with parliament as it is the need of the hour to have a bipartisan parliamentary committee with half its members from the opposition to supervise the activities of the National Accountability Bureau. Further, the NAB law itself needs to be amended by parliament to include the right of bail and restrict the powers of remand as well as those of the NAB chairman to unilaterally order arrest or attachment and grant pardons.
As the Supreme Court observed, the dignity of man is the only unconditional fundamental right under our Constitution. This makes the abuse of power by state functionaries worse than corruption itself as a wrongful conviction is far worse than a wrongful acquittal; and when deliberate attempts are made to subvert the spirit of the constitution, such conduct destroys public confidence in the legal system and is potentially even treasonous. Thus, the court appropriately opined, “Under no circumstances should the courts… condone highhandedness or look the other way as the State deprive citizens of their liberty in derogation of the law and the Constitution.”
It stands to reason that if those involved in the process of accountability are themselves held legally accountable they are unlikely to be illegally influenced or manipulated by extraneous factors.
Otherwise, the convictions and sentences procured by NAB against politicians will unnecessarily continue to be controversial and viewed with suspicion; and the democratic process will continue to be subverted and the rule of law will remain a mere facade. And this failure should weigh most heavily on the legacy of Imran Khan as he was the man brought into power first and foremost on the promise of accountability and now it seems that promise alone should be ‘selected’ for accountability.
The author is an Advocate of the Supreme Court of Pakistan and co-host of Agenda 360 that airs Fri and Sat | 7pm to 8pm