Saad Rasool |
Over the past few weeks, the National Accountability Bureau (NAB) has become a focus of controversy and intrigue (even more so than it has been during its chequered history of two decades). Some fraction of the controversy is unavoidable – after all, NAB is functioning within the fold of a divisive political landscape. But, in equal measure, the controversy surrounding NAB emanates from the shoddy manner in which it has investigated and (more importantly) prosecuted the alleged offenders.
Let us investigate this claim, in light of two recent incidents that raise critical questions about the functioning of NAB: 1) the recent bail/suspension of sentence granted to Nawaz Sharif, Maryam Safdar and Capt (R) Safdar, by the honorable Islamabad High Court; and 2) arrest of Shehbaz Sharif, in connection with Ashiyana Housing scandal. In regards to Nawaz Sharif’s bail, the erudite reasoning of the IHC, authored by honorable Justice Athar Minallah, sheds light on debilitating infirmities within the investigative and prosecutorial functioning of NAB, throughout the Avenfield Reference.
Political and financial accountability, in Pakistan, is now a national imperative; with or without NAB. And the incompetence of NAB cannot be allowed to stall or undermine this otherwise noble endeavour.
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Specifically, a reading of the IHC judgment lays bare a deplorable fact: that NAB barely made any efforts to investigate the allegations concerning Avenfield Apartments, and instead predicated their entire case on the report of the JIT. Consequently, as evident in the IHC judgment, NAB did not refer to the “exact income” of Sharif family, nor any “sources” for such income, “or the details of resources” which could then “set up against the value of the Avenfield Apartments for alleging that he had acquired them disproportionate to his known sources of income.”
In fact, the honorable IHC has observed that NAB could not produce “any document tendered in evidence” that showed the value of the Avenfield Apartments, when they were acquired. Whatever possibility of a strong conviction remained (in light of such perfunctory investigation) was then extinguished by cavalier prosecution by NAB’s legal team. In fact, NAB tried to adopt a novel interpretation of section 14 of the NAB Ordinance (which reverses the burden of proof on the accused), by simply claiming that ‘since the Sharif family had admitted to ownership of the Avenfield Apartments, it is their responsibility to prove the requisite sources of income’.
The honorable IHC, pointing out the fallacy of this argument, points out that the honorable Supreme Court, in the case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607), has already held that “the prosecution has to establish the preliminary facts and, after that, the onus shifts and the defence is then required to disprove the presumption.” Specifically, citing the case of Hakim Ali Zardari v. State (2007 MLD 910), the IHC judgment points out how the honorable Supreme Court has set out detailed conditions that must (first) be fulfilled before the burden of proof can be reversed: “it was held that the prosecution is required to prove four basic ingredients; first, it must establish that the accused was the holder of a public office; second, the nature and extent of the pecuniary resources of property which were found in his possession; third, it must be proved as to what were the known sources income of the accused i.e. known to the prosecution after thorough investigations and, lastly, it must prove, quite objectively, that such resources were disproportionate to the known sources of income.”
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In regards to Nawaz Sharif’s bail, the erudite reasoning of the IHC, authored by honorable Justice Athar Minallah, sheds light on debilitating infirmities within the investigative and prosecutorial functioning of NAB, throughout the Avenfield Reference.
Sadly, NAB did not follow any part of this precedent, and instead tried arguing that these principles “were not attracted” in the instance case – a contention that the court was “not able to fathom”. Perhaps most surprisingly, the detailed judgment of the IHC points out that, despite that fact that “the Petitioners were acquitted in the case of the offence under section 9(a)(iv)” (concerning acquisition of Avenfield Apartments “by corrupt, dishonest or illegal means”), NAB’s prosecution team chose not to file any appeal against the same. Consequently, this factum (that no corrupt, dishonest or illegal means were used in the purchase the Avenfield Apartment) has now attained finality, and can no longer be reopened at the appellate stage.
In simpler words, NAB’s deplorable prosecution has ‘admitted’ (through their conduct of not filing an appeal) that the Sharif family did not partake in corrupt, dishonest or illegal practices, for purchase of Avenfield Apartments. Now this NAB – which did not have the sense to investigate Avenfield reference properly, failed to file an appeal against acquittal on charges of corruption, and capitulated in arguing the Supreme precedents concerning burden of proof – has taken on the onerous task of justifying their arrest of Shehbaz Sharif and proving their allegations against the former Chief Minister of Punjab.
Initial reports indicate that Shehbaz Sharif’s arrest has resulted because of his (illegal) orders to shift the housing scheme to LDA from Punjab Land Development (PLDC); to shift it back to PLDC, after award of contract to Paragon; putting the scheme in Public Private Partnership mode, despite reservations from PLDC officials; and ordering the cancellation earlier (2013) contract awarded to Lateef Sons. In this regard, as reported, it is alleged that the government has suffered a loss of Rs. 25 crore on account of feasibility study; another Rs. 40 crore in regards to liquidated damages (to be paid to the contractor); Rs. 4 billion in cost escalation; and another Rs. 14 billion in terms of benefit to Bismillah construction (Paragon).
NAB’s prosecution team chose not to file any appeal against the same. Consequently, this factum (that no corrupt, dishonest or illegal means were used in the purchase the Avenfield Apartment) has now attained finality, and can no longer be reopened at the appellate stage.
These allegations seem marginal, for now. It is unclear what proof NAB has in regards to each of these claims. It is also unclear who the witnesses are, and what documentary evidence is on record for these allegations. It has not yet been confirmed whether individuals such as Fawad Hasan Fawad are willing to testify against their former boss, Shehbaz Sharif. And perhaps most importantly, there is little reason to place our faith in NAB’s prosecutorial ability to successfully argue and prove these allegations before a court of competent jurisdiction.
The one thing that we know for sure, at this moment, is that NAB is itself in the docket with regards to the ongoing high-profile cases (especially against the Sharif family). Whether these cases are (eventually) decided in favor of Sharif family, or against them, will be of transient political importance. Far more important, and lasting, will be the impact of these cases on the functioning of NAB, and the resulting confidence (or lack thereof) that the people of Pakistan place in the ability of accountability mechanism.
It is great to profess the substance and slogan of accountability. It is, perhaps, momentarily satisfying to see entrenched symbols of a wealthy status quo being dragged through the ostensible process of accountability. But all of it will be counterproductive, at best, if NAB does not focus on ensuring rigour in its investigative and prosecutorial functioning. This is not to say that every reference must result in conviction – that would render the process a sham.
But that the sort of glaring infirmities – nay, incompetence – by NAB, which was at display before the honorable IHC, during the Avenfield Reference, must be taken to task. Political and financial accountability, in Pakistan, is now a national imperative; with or without NAB. And the incompetence of NAB cannot be allowed to stall or undermine this otherwise noble endeavour.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at: [email protected], or Twitter: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission.