ISLAMABAD: The Islamabad High Court (IHC) has termed the ‘absolute’ and ‘unchecked’ exercise of powers by the National Accountability Bureau (NAB) chairman to issue arrest warrants contrary to the fundamental rights guaranteed under the Constitution and set certain guidelines to ensure judicious use of such powers.

The observation was part of a detailed judgement issued by the IHC division bench on the bail petitions of former Pakistan Telecommunication Authority (PTA) director general Abdul Samad and director Amjad Mustafa Malik in a case pertaining to the auction of fourth generation of broadband cellular network technology (4G).

The IHC bench comprising Chief Justice Athar Minallah and Justice Miangul Hassan Aurangzeb had earlier granted pre-arrest bail to the former PTA officials through a short order.

In the detailed order, the court also highlighted loopholes in the investigation by the ‘poorly’ trained officers who lacked proper skills to probe white-collar crimes.

“The power to arrest is to be exercised fairly, justly, equitably and without discrimination. There must be sufficient incriminating material to justify arresting an accused. The ‘incriminating material’ must be of the nature which, prima facie, indicates involvement of the accused in the commission of the offences under the Ordinance of 1999. The material brought on record should, prima facie, show existence of criminal intent or motive, mens rea, element of conscious knowledge and participation with the object of obtaining illegal gain or benefit,” the court order explains.

Detailed order issued on bail pleas of former PTA DG, director in 4G auction case

Otherwise the arrest of an accused would be “an abuse of the power to arrest vested under the Ordinance of 1999”, it points out.

“Mere allegations of misuse of authority would not justify depriving an accused of liberty because an irregularity or wrong decision sans criminal intent, mens rea and illegal gain or benefit does not attract the offences. The power of arrest under the Ordinance of 1999 cannot be exercised in an indiscriminate, reckless or wanton manner, because there are conflicting fundamental rights guaranteed under the Constitution which cannot be ignored,” the IHC judgement says.

It elaborates that the [NAB] power to order the arrest of an accused during inquiry or investigation can have deleterious effects, not only for the latter but also for their family members.

The petitioners seeking bail had also questioned the NAB chairman’s powers to issue arrest warrants, requesting judicial review of the executive power whereby it was intended to deprive them of the right to liberty.

Auction case

According to the anti-graft watchdog, NAB chairman on receipt of a source report ordered an investigation on Oct 16, 2018 though an inquiry had not been conducted before authorising the investigation.

The investigation pertained to the approval granted in favour of M/S Warid Telecom on Dec 4, 2014 to use 4G/LTE (1800 MHz) on its already acquired spectrum. It is alleged that by allowing the cellular company to use 4G/LTE technology on its acquired existing spectrum, the former PTA officials had extended an illegal benefit causing a purported loss of US$516 million.

The court perused the deregulation policy for the telecommunication sector that was approved by the federal cabinet on Jan 10, 2004, after the approval of mobile cellular policy on Jan 1, 2004.

The IHC in its order observes that NAB ordinance was enacted with the object and purpose of providing effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto.

NAB’s power, guideline

Citing various precedents, the IHC observes that because of excessive and indiscriminate use of power of arrests courts were inundated with petitions seeking bail against the arrest warrants issued by the NAB.

“The jurisdiction under Article 199 of the Constitution, 1973 are therefore to be exercised to prevent miscarriage of justice and abuse of NAO, 1999,” it says.

The court points out that the “power to arrest an accused cannot be exercised mechanically and deprivation of liberty or intrusions into fundamental rights guaranteed by the constitution are required to be adequately and demonstrably justified”.

In order to win public confidence, NAB needs to demonstrate across-the-board accountability and to justify why some accused persons are arrested while others are treated differently.

The court observes that “instead of depriving a person of liberty, appropriate measures are required to be taken such as placing the name of the accused on the Exit Control List, prescribing a schedule for appearance, securing the entire record at the first instance, most of which is official etc.”

The fundamental rights guaranteed under the Constitution, which are affected when an arrest is made at the inquiry or investigation stage, have also been discussed in detail in the judgement.

Suggesting the guideline, the IHC in its order says the executive power to arrest a person under the NAO cannot be exercised unnecessarily or for conducting roving inquiries.

According to the judgement, if an accused is cooperating in the inquiry or investigation and appropriate measures have been taken to ensure the latter’s attendance, then in such an eventuality restrictions on constitutional rights will be an abuse of the executive power.

IO’s competence

The court observes that white-collar crimes are committed by skilled professionals, most of whom are experts in covering up and erasing the traces when the crime is committed. It, therefore, poses enormous challenges for the investigators. The detection and investigation of offences dealt with under the Ordinance of 1999 requires highly trained professionals having expertise in forensic accounting, money laundering, data mining and data analysis etc.

According to the judgement, if the investigator of a white-collar crime is unable to conduct effective inquiry and investigation without arresting an accused, it raises serious questions regarding competence and professionalism. This important aspect cannot be ignored because of the massive human impact involving physical and psychological damage and the social stigma caused due to arrest of a person on allegations of corruption and corrupt practices.

The IHC order observes NAB chairman and investigators are vested with expansive powers under the NAO without any “oversight by an independent body”. The nature and expansiveness of executive powers vested in individuals inevitably “raises the threshold of judicial review” because constitutionally guaranteed rights are at stake, it says.

Incompetence, lack of professional expertise and proper training to deal with white-collar crime, besides jeopardizing constitutional rights, can have deleterious consequences for the governance system and cause harm to the economy, it observes. This makes it an even more onerous task for NAB chairman and investigators to take “extraordinary care while exercising executive powers” particularly that of arresting a person, who is presumed to be innocent at the inquiry or investigation stage, the court rules.

“It is alarming that the investigating officer of the NAB, without being professionally competent in this regard, has on his own interpreted the Cellular Policy and, that too, in disregard of the letter of the Federal Government, dated July 19, 2018. The representations made by the State of Pakistan to the investors in the cellular sector have been completely disregarded in the instant case. It appears to us from the facts narrated above that the FAB at the relevant time was at loggerheads with the statutory regulator i.e. PTA. The NAB chairman had ordered the investigation on the basis of some “source report” and it appears that prior inquiry was not conducted. The purported expert was an employee of the Board and his report is also regarding interpretation of statutory provisions, policies of the Federal Government and the expression “Technology Neutral”.

Interestingly, the IO claimed the purported loss of $516 million was calculated on the amount received as the highest bid for auction of 4G spectrum, but at the same time admitted that there was no auction of spectrum in the instant case, as the permission was granted for the use of the technology on the already acquired spectrum of the cellular company.

The IHC order says it is obvious that neither the IO nor the NAB has proper appreciation of the difference between auction of spectrum and allowing a licensee to use a new technology on already acquired spectrum on the basis of ‘Technology Neutrality’ under the cellular policy.

The most astonishing aspect of the case is that the entire investigation is based on the interpretation of the cellular policy of the federal government, while the latter’s opinion or stance has been completely ignored or, rather, challenged.

There is no explanation why the licence of the cellular company was allowed to be renewed in 2019 on the terms and conditions which are alleged as “misuse of authority leading to the purported loss”.

The manner in which this case has been presented before the court and the facts and circumstances narrated above undoubtedly highlights how actions taken by NAB could have serious consequences for the economy, investment policies and foreign policy interests of the state, the court observes.

Parliament to review accountability process

The court in its order says the executive powers of arrest under the NAB ordinance are required to be exercised justly, fairly, equitably and subject to the principles and law.

To meet the challenges due to the menace of corruption, across-the-board accountability in a transparent manner and free from discrimination and arbitrary exercise of powers is inevitable. Professional training, qualification and expertise of the investigators and prosecutors to deal with white-collar crimes are equally essential, it observes.

The IHC order further says: “We expect that the federal government and the Majlis-e-Shoora (Parliament) will consider to take appropriate measures in order to ensure that the accountability process is made effective, transparent and fair and that the Bureau is equipped and strengthened to meet the challenges and achieve the object for which it has been established.

“We also expect from the Bureau to be mindful of the consequences of excessive and arbitrary exercise of power of arrest relating to the constitutional rights, economy, governance system and foreign affairs interests.”

Published in Dawn, March 8th, 2020