Discounting Accountability

Amendments to the NAB Ordinance leave the country open to even more plunder by the powerful

By amending the NAB Ordinance 1999, Parliament has made the misuse of authority for personal gains acceptable and conviction of the accused almost impossible. All eyes are set on a three-member bench of the Supreme Court (SC) of Pakistan, which has been hearing a petition against the amended law, to see if it upholds it, or declares it in contravention to the Constitution. The SC judgement will determine whether we will see a course correction, or slide further down the road to more loot and plunder.

On October 18, Chief Justice of Pakistan Umar Ata Bandial directed the National Accountability Bureau (NAB) to preserve the record of all the references filed in the courts by the organisation, which has been closed after the recent changes made to the anti-graft law. These days, the Supreme Court (SC) is hearing a petition filed by PTI Chairman Imran Khan, who pleaded that the amended law would make the NAB ineffectual to prosecute white-collar crime by the public office-holders. In all probability, however, the record of the cases involving unexplained wealth, money-laundering and misuse of official authority against  serious top guns of the sitting government might have already been doctored or stolen, as the court passed the order after more than two months of the passage of the law.

Those responsible for demolishing the hitherto existing architecture of the accountability edifice constructed in 1999, have already achieved their objectives. According to a statement by NAB’s additional prosecutor general Mumtaz Yousuf on October 12, to date, the organisation has withdrawn 219 corruption references from the courts after the amended law came into force, and this process is continuing. He added that soon the number of withdrawn cases is expected to reach 280. At one hearing of Imran Khan’s petition, Justice Ijazul Ahsan, a member of the three-member SC bench, tauntingly asked the lawyers if there was anyone left who had not benefited from the amended NAB law.

The opponents of the original NAB Ordinance 1999 often argue that it failed to achieve its stated purpose of accountability, as the rulers who had orchestrated it had not created the NAB to be a credible, impartial anti-corruption body, but instead used it as a tool for political ends. Gen Pervez Musharraf introduced the law and used corruption cases to divide the Pakistan People’s Party (PPP) and the Pakistan Muslim League (N) to create factions that supported him. However, the same holds true for the Nawaz Sharif and Benazir Bhutto governments as both, when Prime Minister, filed corruption cases against each other and the leaders of their opponent parties.

In recent years, when the leaders of the current ruling party, the PML-N have been on the receiving end, they have made no bones about their disdain for accountability and acceptability of corruption as a normal practice. On several occasions, they have tried to justify the prevailing rampant corruption. Federal Planning Minister Ahsan Iqbal is on record saying that corruption was not the primary reason holding back the country’s economic development, claiming that there were examples of other countries that managed to progress despite similar levels of corruption. Former Prime Minister Shahid Khaqan Abbasi has repeatedly said that the NAB should be abolished, as in the presence of the NAB the country could not make economic progress. One can see a video clip in which Hamza Shehbaz, the elder son of Prime Minister Shehbaz Sharif, is talking to school students and lecturing them about how corruption is a normal practice, not to be bothered about.

In line with the expressed contempt for accountability, 39 amendments made to the NAB Ordinance of 1999 have left little room to compel public office-holders to use their authority in the public interest and not for personal gains. Under the new law, an accused individual is no longer required to account for his wealth and provide money trails for his allegedly ill-gotten wealth. Thanks to the new law, on September 29, the Islamabad High Court set aside the conviction of PML-N leader and daughter of former Prime Minister Nawaz Sharif, Maryam Nawaz, awarded by a court in the Avenfield reference in 2018, and acquitted her. During the hearing, Justice Mohsin Ahtar Kayani remarked that she and the other accused should not have to clarify their position, as it was NAB’s job to prove them guilty.

On 19 October, NAB also filed a plea in the high court to withdraw corruption cases against the exoneration of former President Asif Zardari in four corruption cases initiated 25 years earlier. The NAB took the plea that the prosecution did not have the original documents as evidence against Zardari but it did have photocopies of these. Many corruption cases against Zardari have been prolonged for so many years that in the process either the original evidentiary documents have gone ‘missing,’ or members of the investigation staff have mysteriously died.

By diluting the anti-graft provisions, the 2022 amended NAB law has almost legalised the corruption of public office-holders. It now stands in contravention of international norms of anti-corruption measures. In criminal law, the prosecution is required to prove the case against the accused beyond reasonable doubt for his/her conviction. However, civil law works on the principle of the basis of the ‘balance of probability,’  implying that the evidence weighing against the accused to the extent of 51 to 49 is sufficient for conviction. The cases involving white collar crime fall in the category of civil law where the principle of balance of probability applies. The 2022 NAB law defies this basic standard.

White-collar crime expert Shoaib Suddle says that even under the anti-corruption law introduced by the British Raj, the onus of proving one’s assets were not beyond one’s means was on the accused, and abolishing this clause is in contravention to the requirements of the Financial Action Task Force (FATF). The UK’s law of unexplained wealth also puts the onus on the accused to prove he acquired his assets with a fair means of income. Pakistan is signatory to the United Nation’s Convention Against Corruption. Article 20 of the Convention reads: “…each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”

For example, as per investigation by the NAB, more than 95 per cent of the assets owned by Suleman Shahbaz Sharif allegedly owe their existence to nearly 200 telegraphic transfers (TTs) from abroad – a method used for money-laundering. Most of these transfers were made from the UK and the UAE in the names of Suleman Shehbaz and one of his employees, Mushtaq Cheeni. During Shahbaz Sharif’s tenure as chief minister of Punjab, Suleman’s assets skyrocketed by 8,000 per cent. He cannot explain the means of his income and is currently absconding from Pakistan, but was present in recent high-profile official meetings in Turkey along with his father, Prime Minister Shahbaz Sharif. Between 2015 and 2017, when Shehbaz Sharif was chief minister of the Punjab, his assets rose by 70 per cent. He cannot explain the sudden rise in his wealth, but stands innocent under the new law. The day an accountability court was to indict him in a money-laundering case he was sworn in as chief executive of the country.

Incidentally, during the period the wealth of Shehbaz Sharif’s family exponentially escalated, some expensive power stations were built in the Punjab, among them the Sahiwal Coal Plant run on imported coal. According to NTDC official data, the Sahiwal Coal Plant produces one unit of electricity at a rate of Rs 30-32, while a plant run on local coal from Thar produces one unit of electricity for Rs 4. One can guess who benefited from this costly scheme. Shehbaz Sharif and Hamza Shahbaz were charged with unexplained wealth of Rs 16 billion that was deposited into their accounts, and they bought properties with some of this amount. In their defense, both said that they did not know who deposited the money. The logical question then would have been who withdrew the unexplained money from these accounts, but neither the prosecutor nor the judge raised the question. Both father and son were acquitted even before they were indicted. Similarly, Shehbaz Sharif’s son-in-law Ali Imran, living in self-exile in the UK for the last four years, who belonged to a lower-middle class family at the time of his marriage, is now a billionaire and owns expensive commercial properties in Lahore, made when the Sharifs were in office.

Even before the amendments were made to the NAB law, the anti-graft body and its actions against politicians were practically made ineffective by some invisible forces. The NAB was seen dragging its feet with regard to the investigations and filing of formal charge-sheets in high-profile cases of certain politicians, while the courts were allowing the accused unnecessary postponements of their cases on flimsy grounds. When several graft cases matured in 2021, the accountability judges hearing the cases were suddenly transferred to other far-flung districts. It takes plenty of time for a judge to comprehend the  nitty-gritty of white-collar crimes. As a result, the entire exercise done by the judges working on the cases for the last several years went waste, and the hearing of the cases practically started afresh with new judges on the bench.

Apart from political clout and intervention by invisible forces, it is common for rich, influential people to come out clean in corruption cases. They bribe investigation officers and the prosecution to create gaps and legal lacunas in the corruption cases against them, and their big-shot lawyers exploit these  in the courts of law and get the accused off the hook. No wonder, year after year, Pakistan features near the bottom of international indices for corruption. Pakistan has become a land of immunity from all kinds of crimes for the rich and powerful. They are free to murder, steal and go scot free. The country’s premier intelligence agency, the Intelligence Bureau (IB), runs a posh housing colony in Islamabad and has sold more plots on paper than the land it possesses, but no one can hold it accountable.

According to a fresh report by the Auditor General of Pakistan, Bahria Town and DHA City have illegally occupied 785 kanals of land owned by the Sindh government along the Karachi-Hyderabad motorway (M9). And the federal government has allocated Rs 87 billion to members of the National Assembly in the name of development schemes in their respective constituencies. The common practice is that members of the assembly not only recommend development projects, but also ensure that contracts for their execution are given to their chosen nominees, who in turn give them almost half of the allocated amount in kickbacks. This practice thrives unchecked, because no one receives or gives bribes with a receipt. It cannot be proved in a court of law through hard evidence such as in a criminal case. The corruption can only be checked by putting the onus on the accused to prove his/her assets have been made through legal means.

An outcome of reckless, unchecked corruption and plunder of state resources leaves the Pakistani economy teetering on the edge of default. Decades of widespread corruption have made the country poorer. In order to keep the economy’s wheels moving this fiscal year, the Pakistan government needs 40 billion dollars in fresh foreign loans, euphemistically called foreign financing. The country is on the verge of bankruptcy and our finance minister is running from pillar to post to get the loans rescheduled to avoid default. The main reason for this situation is, of course, the fact that a huge portion of the foreign loans (97 billion dollars) were taken by corrupt politicians and bureaucrats and transferred abroad through money-laundering. In order to pay back these loans, successive governments resort to heavy indirect taxes on items of daily use, including edible oil and petrol, and utilities such as electricity and gas. And the poor continue to pay the cost of the plunder by the ruling elite.