“A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes, will find that with small men no great thing can really be accomplished.” — John Stuart Mill

Thus begins Justice Baqar’s searing critique of how the Pakistani establishment has, for seventy years, misused accountability laws to conduct political engineering.

The Supreme Court’s judgment in Saad Rafique’s case is welcome reading for those who still retain faith in the judiciary as a guardian of fundamental rights. After castigating the prolonged incarceration of the accused despite the flimsiness of NAB’s case; it observes the NAB Ordinance is only the latest in a string of accountability laws starting from PRODA and EBDO in the early decades of Pakistan’s independence.

But, “[r]ather than doing any good to the country or our body politic or cleansing the fountain heads of justice, these laws and the manner that they were enforced, caused further degeneration and created chaos” since they were only used for “arm twisting and pressurizing political opponents” and as tools to “change political loyalties, for splintering and fracturing political parties” with the result that “[p]ygmies were selected, nurtured, promoted and brought to prominence and power… with predictable results”. The judgment ends by quoting Jalib:

Even before this public humiliation, however, NAB faced a credibility crisis due to its partisan approach to accountability. As the judgment points out, “the bureau seems reluctant in proceeding against people on one side of the political divide even in respect of financial scams of massive proportion while those on the other side are being arrested and incarcerated for months and years without providing any sufficient cause…” Selective accountability is worse than no accountability. Instead of deterring, it encourages corruption. It tells politicians their crime was not corruption– but choosing the wrong party.

Others question the integrity of NAB’s officers. The problems here start from the top. Its Chairman, Justice (R) Javed Iqbal, was caught on video engaging in sexual frolic with the wife of an accused. While he may have successfully avoided accountability – it did nothing to engender public confidence in the institution.

Even in government circles, NAB’s enthusiasm in filing (often incomprehensible) references against bureaucrats and businessmen is viewed as an obstacle to effective governance and stimulating economic investment. It has revived, amongst bureaucrats and businessmen, the popularity of that old truism – do nothing and fear nothing.

Regardless, the government and opposition are unlikely to agree upon the requisite legislative reforms to NAB. Does this latest judgment, however, portend a greater shift in the apex Court’s attitude towards NAB? Will the judiciary finally cut NAB down to size?

NAB’s constitutionality has been suspect from its very inception in 1999. Article 12 of the Constitution says no one can be punished for an act that was not an offence when they did it. Nor can anyone be awarded punishment for an offence greater than that prescribed when they did it. The NAB Ordinance does both. It creates new offences like willful loan default and cheating the public at large. It sets greater punishments for offences like corruption or misuse of public office than those prescribed under earlier laws. And it does so with retrospective effect – starting from 1985.

That’s why media mogul Mir Shakil is in jail for a “NAB offence” dating to a time when NAB did not exist!

The NAB Ordinance also violates the constitutional guarantee of equal application of laws. If NAB can look into past acts of corruption, why stop at 1985? Was there a qualitative difference between corruption during Zia’s martial law and corruption afterwards?

Why, for that matter, are military officers excluded from the definition of “holders of public office” and hence exempted from NAB’s purview? After all, the ordinary criminal law in Pakistan i.e. the Pakistan Penal Code (PPC) includes military officers within its definition of “public servants” and allows their prosecution for corruption under the PPC. Indeed, far from seeking to exempt, the relevant military laws actually incorporate all of the offences and punishments under the PPC. All they reserve is the option to try an officer in court martial instead of an ordinary criminal court. Why, only when it comes to NAB, does it become necessary to grant military officers immunity?

Perhaps the most serious argument against the constitutionality of the NAB Ordinance is that it sets up parallel law regimes.

The NAB Chairman gets to choose whether a holder of public office is prosecuted by NAB or left to the provincial authorities under ordinary corruption laws.

If the NAB Chairman opts to prosecute – the accused can be held in investigative custody for a draconian period of 90-days (against 14-days under ordinary law); be stripped of his statutory right to bail; be tried in a special court with a reversed burden of proof and awarded much sterner sentences.

Making the applicability and rigour of criminal laws dependent upon the personal discretion of an individual is anathema to the rule of law. Other laws of this nature have been declared unconstitutional by the Supreme Court in cases as far apart as Waris Meah (decided in 1957) and Mushahid Shah (decided in 2016).

The NAB Ordinance, however, survives unscathed; even though it is this very discretion available to the NAB Chairman that makes NAB such an effective tool for political manipulation. Why? History. Musharraf launched NAB a month after his coup and presented it as justification for the coup. When NAB’s constitutionality was challenged in Asfandyar Wali’s case; martial law was still in vogue. It was heard by four Supreme Court judges who had freshly taken oath under Musharraf and validated his coup in Zafar Ali Shah’s case.

Unsurprisingly, therefore, the Court upheld the constitutional validity of the NAB Ordinance whilst observing that the “de facto and de jure status of the present regime was recognized to… create corruption free atmosphere…” and “the Court took judicial notice of the fact that the people of Pakistan generally welcomed the army takeover” and this was “kept in mind while examining the validity of the impugned Ordinance.”

In a subsequent article, eminent jurist Khalid Anwer termed the Asfandyar Wali judgment as “astonishing in its naivete” and resting upon “shifting sands of political expediency”. Now that the Supreme Court has itself condemned the judgment in Zafar Ali Shah and declared Musharraf’s coup unconstitutional; surely it is time to reexamine the constitutional status of its orphan child — the NAB Ordinance?

The writer is a barrister

Published in Dawn, August 28th, 2020