Damned before trial

Why has NAB consistently failed to prosecute those accused of corruption, and seek convictions against them and help curb corruption? Because those goals don’t drive NAB’s actions.

NAB continues to use law as a tool to create political consequences. The punishment for those who fall on the wrong side of the state is not prison terms post conviction, but harassment at the hands of NAB, incarceration till the courts exonerate them and loss of dignity and reputation while being on the hook as NAB orchestrates a media trial against them.

The chief justice has warned NAB against threatening and humiliating those it investigates. But the practice continues. The arrest of Shahbaz Sharif, its timing and manner are a reminder of the arbitrary powers vested in the chairman of NAB – and their abuse. Until Sharif’s arrest we had forgotten about Ahad Cheema who remained in NAB custody for the maximum period of 90 days; likewise, former principal secretary to PM, Fawad Hassan Fawad, also remained in NAB custody for 89 days. Both career bureaucrats are now in jail.

The issue here is not to pre-judge whether Cheema, Fawad and Sharif have been involved in abuse of power or corruption. If they are, they must be punished in accordance with the law. The issue is what rights are afforded to those who are suspected of or charged with corruption pending trial and decision by a court of competent jurisdiction. If corruption is the key challenge we face as a polity, does that mean by extension that the fundamental rights of a suspect stand suspended and s/he is to be deemed guilty until such time that s/he can prove his innocence?

There are three foundational rights guaranteed by our constitution, upon which rest all other ancillary rights: the right to life and liberty, the right to dignity and the right to equality. Let’s consider how NAB has dealt with Cheema’s rights. When he was arrested, his photo behind bars in a NAB jail was released to the media and widely shared. When his wife came to visit, images of the meeting were also released to the media and public. He was held by NAB for investigation and finally charged for abuse of authority in relation to the Ashiana project.

In a judgment authored by Justice Asif Khosa, a full bench of the Lahore High Court in the case of Khizer Hayat (PLD 2005 Lahore 470) ruled on how the power of arrest is to be exercised. Recently in the case of Sughran Bibi (PLD 2018 SC 595) a seven-member bench of the SC headed by Justice Khosa reaffirmed the dicta in Khizer Hayat on how a citizen’s right to liberty must be upheld while the state exercises police powers to arrest a suspect.

“All the statutory provisions and the precedent cases mentioned above manifestly point towards the intention of the law that a suspect is not to be arrested straightaway upon registration of an FIR or as a matter of course and that, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigation officer regarding correctness of the allegations…”

“It must always be remembered that delaying arrest till formation of an opinion regarding prima facie correctness of the allegations against a suspect goes a long way in deterring false, frivolous and motivated complaints and also there may not be adequate recompense or reparation for an unjustified arrest. It would be preposterous and a mockery of justice if a person may be deprived of his liberty first and later on the allegations against him may be found by the arresting agency itself to be bogus, trumped up or false.”

Now if NAB had sufficient material against Cheema or Fawad, supporting a prima facie case against them, why did it need to hold them in physical custody for 90-days for investigation? Why did both civil servants, who are in the state’s employment, need to be arrested to be investigated? What kind of personal examination of a suspect is required in white-collar crimes where the charge against a suspect is of abuse of authority and there exists documentary record of exercise of authority (already in state custody)?

A myth has found feet in Pakistan that it is impossible to prove white-collar crimes. When we say this do we mean that whenever anyone is charged with corruption, assumption of truth will attach to the charge and unless the accused can prove his innocence he will be guilty? Or are we saying that NAB is lazy and incompetent and can’t get the job done and so we must bend the rules of justice in NAB matters? True, no one issues a receipt for a bribe. But what purpose does the existence of NAB serve if it can’t dig out basic facts?

Leaving legalese aside, the basis of a corruption charge is that someone accepted gratification to do an illegal act. But just because someone who has power to decide a matter decides it one way and not another is not in itself a basis for a corruption charge, unless there is evidence of acceptance of illegal gratification.

And there lies the problem. The sum total of our accountability drive is that you second-guess administrative decisions of one who is on the system’s wrong side, you dream up fictional losses and without evidence of illegal gratification you condemn him for being corrupt. When the fiction is tested in a trial, which needs evidence, the accused is exonerated. Meanwhile witch-hunts and media trials continue and the rent seeking that citizens face in getting state services on an everyday basis also stay alive and well.

In Cheema’s case, NAB, on behest of the state, took away his liberty even before making up its own mind that there was a case against him. That breached his Article 9 rights. The 90-day custody period isn’t required for collecting evidence. It is required to inflict pain on a suspect and his family. (For example Cheema’s family was repeatedly summoned and interrogated by NAB). This is done to break a man’s spirit, confront him with prisoner’s dilemma and encourage him to become an approver in furtherance of the political purpose that drives

the case.

NAB denigrated Cheema and deliberately released his images behind bars to hurt his reputation and lower him in the eyes of right thinking people in society. This breached Article 14 that holds that the dignity of man shall be inviolable. His dignity must have been further obliterated when told of how his family will be ridiculed and harassed if he didn’t ‘cooperate’. Even if Cheema is eventually exonerated by court, his four-year old will have the image of his father behind bars etched into his memory (and easily jogged by anyone who runs a Google search).

And what of his right to equality under Article 25? Under Section 24 of the NAB Ordinance, the chairman of NAB has wide and unguided power to order the arrest of anyone at the stage of inquiry or investigation. As NAB can initiate an inquiry of its own accord, the NAB chairman can essentially order anyone’s arrest at any time. There is no explanation for why some under inquiry are arrested and many against whom charges are framed aren’t. This makes NAB’s actions arbitrary and in breach of suspects’ right to equality and equal protection of law.

NAB is broken beyond repair. If we want a functional bureaucracy, we can’t persecute those serving in key positions merely to collect dirt on out-of-favour politicos. If we want a sensible anti-corruption regime, we must distinguish between decisions deemed wrong and decisions involving criminality and stop this nonsense of marketing scandals involving ‘billions’ when the actual loss to the exchequer doesn’t add up.

And if we want a credible accountability drive, we need a non-partisan institution to manage it that has the ability and integrity to investigate facts and run prosecutions on the basis of evidence and not fiction.

Clarification: In the column published on Sep 29, titled ‘Judging entitlement’, I had quoted a judgment of the Islamabad High Court that reproduced a Lahore High Court judgment, wherein allotment of plots to two senior lawyers, Mr Sharif-ud-Din Pirzada and Mr Aziz A Munshi had been approved. Mr Waqar Rana, a friend of Mr Pirzada’s family has advised me that Mr Pirzada neither applied for the said plot nor received it after it was voluntarily allotted by the LHC. Mr Mushi has issued a similar clarification and also stated that he sought to have LHC’s record corrected. It is unfortunate that law reporters still carry the version of LHC judgment that includes the names of the two lawyers. I apologise for any distress that might have inadvertently been caused to them or their families.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu