ISLAMABAD: Highlighting paralysis of system of governance due to bureaucratic machinations, the Islamabad High Court (IHC) on Tuesday rejected the National Accountability Bureau’s (NAB) Nandipur reference against Prime Minister Imran Khan’s adviser Dr Babar Awan and former premier Raja Pervez Ashraf, terming it arbitrary.

“It is in the public interest to protect the governance system from arbitrary exercise or abuse of powers vested in the Bureau,” ruled the IHC while disposing of the petitions relating to the reference.

The petitions were filed by Mr Ashraf and former law secretary Masood Chishti seeking to quash the reference.

The reference was based on the delay by the law minister in furnishing an opinion on the Nandipur power project. The Supreme Court had constituted a commission headed by retired Justice Rehmat Hussain Jafery to investigate the matter.

Court says NAB did not conduct fair and impartial probe against accused

NAB had on March 18, 2018 filed the reference against Babar Awan, Raja Pervez Ashraf, former law secretaries retired Justice Riaz Kiani and Masood Chishti and others.

On Tuesday, an IHC division bench comprising Chief Justice Athar Minallah and Justice Aamer Farooq observed that NAB did not conduct fair and impartial investigation. “It appears from a plain reading of the report that the investigating officer was influenced by proceedings before the august Supreme Court, so much so that portions of the [Justice Jafery] Commission’s report were reproduced verbatim.

“There was no allegation, even remotely, that the accused had either gained any benefit or had extended undue favour to any person. The calculation of loss was also based on mere presumptions and mostly related to escalation of price,” the court observed.

The court noted: “The Commission’s report did not allege corruption…The report attributed the delay and loss to ‘negligence’ on the part of the Ministry of Law and Justice. The calculation of the loss was based on presumptions because reputable chartered accountant firms had shown their inability to undertake such an assignment. The Bureau was not able to place before us any order passed by the august Supreme Court directing the initiation of criminal proceedings under the [NAB] Ordinance of 1999.”

The IHC order said: “The manner in which the matter was dealt with between different ministries at the most raises questions regarding governance but, by no stretch of the imagination, can it be treated as the commission of a criminal offence under the Ordinance of 1999. It also cannot be ruled out that fear amongst the bureaucracy of being exposed to proceedings may have been the likely cause of the delay but there is nothing on record to even suggest a guilty mind or existence of mens rea [criminal intent] let alone fulfillment of the ingredients of the offences alleged to have been committed.

“Nonetheless, in case the process of accountability is not administered with caution and strictly within the parameters prescribed by the legislature, it can cause irretrievable harm to the governance system and affirm the concerns regarding paralysis of the state machinery observed by the august Supreme Court.

“The bureaucracy constitutes the permanent and professional part of the executive branch of the state. It has a pivotal role in the governance of the country and in assisting the chosen representatives in the process of policy formulation.

“Governance refers to the process of decision making and the mechanism through which the decisions are implemented. Every bureaucrat is expected to take numerous decisions and actions every day. Many decisions bona fidely taken may be contrary to law or reflect departure from known precedents and thus technically amount to misuse of authority.”

The court observed: “Bureaucrats are humans and thus they can also err in taking decisions or actions but it would not necessarily attract criminal liability. Creativity, flexible thinking and ability to take initiatives and decisions are essential attributes of a bureaucrat in order to perform functions and duties.

“However, if the accountability process fails to make a distinction between mere misuse of authority or failure of its exercise on the one hand and corruption and corrupt practices on the other then it would inevitability lead to creating a culture of fear. Such fear is definitely debilitating and has a negative effect on the governance system.

“It obviously discourages the bureaucracy from being creative and prevents individual bureaucrats from effectively performing their duties and functions which obviously is not in public interest and consequently affects the constitutionally guaranteed fundamental rights. In such an eventuality they are unable to contribute towards ensuring good governance.”

The order said the entire Nandipur reference “related to the bureaucratic decision making process and there was no involvement of corruption and corrupt practices in the context of the offences described under Section 9(a) of the Ordinance of 1999”.

Concluding the judgement, the court expressed the hope that NAB “will ensure the exercise of extreme caution and care while dealing with the cases which do not involve an obvious element of corruption and corrupt practices”.

Published in Dawn, January 13th, 2021