Age of (Un)Accountability

By hurriedly defanging the NAB through constitutional amendments, the PDM govt has exposed its foremost priority

Lahore: The January 1, 2023 sun will rise with little to celebrate. To begin with, virtually lost is the hope long nurtured in the hearts of citizens of seeing a ‘naya Pakistan’ devoid of the menace of the corruption which has plagued the country since its creation, and now pushed it to the brink of bankruptcy.

After assuming power as a result of a regime-change operation, the PML-N-led coalition government hastily amended the National Accountability Ordinance (NAO) 1999, in the process dashing all hopes of holding the political elite accountable for their many sins of commission. It is believed that over 90 per cent of the cases (1347), including high-profile ones that the National Accountability Bureau (NAB) was dealing with— whether at the inquiry, investigation or trial stage — will be closed in 2023 in favour of the powerful accused. The amendments have already started to bear fruit for those in the dock, but it is expected that in 2023 the crimes the powerful political elite are accused of, will be given blanket cover courtesy the new legislation.

Although PTI Chairman Imran Khan’s constitutional petition opposing the amendments to the NAB Ordinance is currently being heard by a three-judge special bench of the Supreme Court led by Chief Justice of Pakistan Umar Ata Bandial, there is not even a glimmer of hope that all the cases will be brought back to life, because the ruling elite has also devised other methods to tackle the situation to its advantage.

It is widely believed that even if the SC strikes down the amendments, the Federal investigation agency, which is working directly under the PML-N led government and helped Prime Minister Shehbaz Sharif and his son Hamza Shehbaz get a clean chit in the Rs.16 billion money laundering case, will do likewise for others. Besides that, after the appointment of the new chairman, the NAB had already softened its stance in regard to cases against the political leaders of the coalition government. This was evident when it did not oppose Mariam Nawaz’s plea to the Lahore High Court for the return of her passport.

In fact, a recent report submitted by the NAB to the apex court has made it clear what the future of accountability in Pakistan will now be, implicitly confirming that following the amendments, the accountability of the powerful elite will remain a myth. The NAB report pertains to the details of cases concerning public office-holders, including political leaders, which will be directly affected by the new amendments. It discloses that following the amendments, 755 cases at the inquiry stage, and 292 cases at the investigation stage and more than 300 (total 1347) at the trial stage will be affected. So far, the Accountability courts have returned only 50 cases to the bureau, and if it continues the same way in 2023, there will be few, if any, inquiries or investigations pending with the country’s top graft buster.

Of the cases likely to be dropped, 510 are those where the amount involved is less than Rs 500 million and they will be affected by an amendment in Section 5(o) of the NAO 1999 through Section 3 of the National Accountability (Second Amendment) Act 2022. The changes will be advantageous to certain senior federal ministers, but of the leaders of all the major political parties, including the Pakistan Tehreek-e-Insaf (PTI), Prime Minister Shehbaz Sharif is the major beneficiary of the modifications to the NAB laws.

Other leaders of the major parties in the federal government will also almost certainly go scot free in 2023 as a result of the amendments. These include Mian Nawaz Sharif, Asif Ali Zardari, Maulana Fazlur Rehman, Mariam Nawaz, Faryal Talpur, Ishaq Dar, Khawaja Muhammad Asif, Khawaja Saad Rafiq, Rana Sanaullah, Javed Lateef, Makhdoom Khusro Bakhtiar, Amir Mehmood Kayani, Akram Durrani, Saleem Mandivwala, Noor Alam Khan, Nawab Aslam Raisani, Dr Abdul Malik Baloch, Nawab Sanaullah Zehri, Birjees Tahir, Nawab Ali Wassan, Sharjeel Inaam Memom, Anwarul Haq Kakar, Liaqat Jatoi, Amir Maqam , Goram Bugti, Jaffer Khan Mandokhel, and G-B Governor, Syed Mehdi Shah.

While outlining the cases against Shehbaz Sharif, the NAB told the Supreme Court about the case regarding the illegal allotment of 1,400 kanals of government land near Lal Suhana National Park pending against the PM, which will now likely be dropped, as the amount involved is less than Rs. 500 million. Another matter regarding the misuse of authority against the Prime Minister and others will also be similarly affected, as the amount involved in this alleged scam too is less than Rs 500 million. The investigation against the Chaudhry Sugar Mill, owned by the Sharif family will probably come to an end, as will the inquiry against Shehbaz Sharif and others regarding the illegal use of the Prime Minister’s jet from 2014 to 2018, under Section 5 (o) of the NAB Amendment Act 2022. And a total of six cases against Nawaz Sharif now stand to be dismissed.

In addition, the investigation against Finance Minister Ishaq Dar regarding the illegal appointment of the ZTBL CEO in violation of the Nationalisation Act 1974, will now be closed, as will the investigation against Federal Minister Railways Khawaja Saad Rafique, under sections 4 (2) (b)(d)(e) and 9(a) (vi) of the NAB law.

The inquiry into the assets beyond known sources of income against PPP Co-chairman Asif Ali Zardari, and his sister Faryal Talpur will also likely be dismissed under Section 4(2) (a) of the National Accountability Act 2022. So will the inquiry against JUI-F Chief Maulana Fazlur Rehman, as the property in the case in the name of the accused person is of a relatively nominal amount and in light of the new amendments, linkage of the benamidars (ostensible owners) is very difficult. And the NAB has informed the Supreme Court that the inquiry against Public Accounts Committee Chairman Noor Alam in the assets beyond means case will also be affected as the amount in the case is less than Rs 500 million.

In compliance with the apex court order, the NAB has submitted the list of all corruption cases which will be affected under the new amendments to the NAB law. Of these, some 168 cases relate to the offence of assets beyond means under Section 9(a)(v), while around 213 cases relate to the charge of assets beyond means under Section 9(a)(vi), and 89 cases relate to cheating. All of these will now tilt in favour of the accused.

Moreover, the NAB informed the Supreme Court that the inquiry against Defence Minister Khawaja Asif on allegations that he got the Kent Housing Society approved, obtained the land of private individuals for the purpose, and cheated members of the general public by misusing his authority, will also be affected by the recent amendments. Similarly, the investigation against former MPA Abdul Aleem Khan on the charge that during years 2002 to 2018, he acquired assets, which have been found to be disproportionate to his known sources of income to the tune of Rs1.4 billion, is also likely to go in the accused’s favour.

Meanwhile, the investigation against Interior Minister Rana Sanaullah on the charge of assets beyond known sources, in the name of benamidars amounting to Rs 95 million, and illegal gains amounting to Rs 100 million, has already been closed under the new NAB law. The inquiry against Transparency International of Pakistan chairman Syed Adil Gilani will also be affected.

NAB has also informed the Supreme Court that an inquiry against PTI leader Shaukat Ali Yousafzai on charges of an alleged misuse of authority as the Khyber-Pakhtunkhwa Information Minister will be affected as the amount involved in this scam is also less than Rs 500 million. Similarly, an inquiry against PTI active member and former Health Minister Amir Kayani regarding the misuse of authority and obtaining of pecuniary advantage through dishonest and illegal means while framing the Drug Pricing Policy will be affected under Section 4(2)(a) of the National Accountability Amendment Act 2022. And, the NAB informed the court, the inquiry against former PTI federal minister Khusro Bakhtiar, Makhdoom Hasham Khan Bakht, and other family members on the offence of an accumulation of assets will also be affected under the 1st amendment in Section 4(2)(c).

Former Supreme Court Bar Association Secretary Malik Shamimur Rehman said the government had bulldozed the legislation relating to NAB through Parliament, to ‘reform’ the prevailing accountability laws. According to him, the sweeping changes have completely paralysed ongoing efforts to hold powerful wrongdoers accountable. He said it is apparent that the government was solely concerned with saving its leaders’ skins as it proceeded to gut the National Accountability Bureau and defang its governing law, the National Accountability Ordinance, without even the pretence of offering a robust alternative system to replace it. And he spoke of how the rather outrageous consequence of this self-serving ‘reform’ effort manifested itself when property magnate Malik Riaz was able to walk away ‘scot-free’ from a multibillion-rupee corruption reference related to Karachi’s Bahria Icon Tower.

When a three-year-old reference regarding the legality of this deal was brought before an accountability court judge in Karachi, he was forced to dispense with it, because he no longer has jurisdiction over the matter. The reference is now once again with the NAB, which is supposed to transmit it onward to a “competent forum.” One wonders if there is any hope of seeing further progress in this case. The PDM government is itself responsible for giving credence to those who feel it came into power to give ‘NROs’ to the corrupt, contended Malik Shamimur Rehman. He added, “ In the presence of amendments in the NAB law, I see no accountability of the elite in 2023. When Nawaz Sharif was convicted in the graft case, a ray of hope was rekindled that the powerful would be held accountable, but all hope is now gone with the wind.” However, he admitted that the NAB had served more as a tool of harrassment than accountability. He conceded that the graft buster had been used to victimise political rivals, intimidate the bureaucracy and harass the business community.

Advocate Azhar Siddqiue opposed shelving the graft buster, recommending an amendment to the NAB Ordinance to bring transparency in the trial process, and also suggested the setting up of a commission to investigate cases of NAB’s injustice and human rights violations. But, he argued, the NAB should not be abolished on the pretext of having other accountability institutions. He said the anti-corruption entities in the provinces, the Federal Investigation Agency (FIA) at the federal level, and the NAB each have a different scope, rubbishing the notion NAB is a supra accountability body. He favoured the retention of the NAB as an institution and asked for a holistic review of the accountability laws to amend them in line with the fundamental rights guaranteed in the Constitution.

He added that the anti-graft body had been working efficiently since 1999, evidenced by the fact that conviction was awarded by the trial courts in 905 cases.