Legitimate accountability

If recent events are anything to go by, NAB has displayed that it is its own worst enemy. Its actions have undermined its own claims of independence and bolstered accusations of it being a political tool for the ruling government. Before the accusations pour in that I am being sympathetic towards the corrupt, let me just clarify that it goes without saying that corruption is one of the most debilitating problems that Pakistan is facing. But it is especially when our system is under strain that we must check our base instincts at the door and adhere to the safeguards of the Constitution. The corrupt must be held accountable, but accountability must be fair, transparent, and in accordance with law. NAB is failing at this task.

Claims of politicisation should worry NAB and the current government. Government institutions, especially judicial institutions, depend on public trust in their impartiality in order to guarantee legitimacy. If an institution is seen as too deeply politicised, or compromised, there may come a time when it exercises its power and the people refuse to accept it. Such scenarios can result in a constitutional crisis — when an institution of government loses all legitimacy and is pitted against another institution, in this case the people.

To be fair, NAB’s legitimacy was flimsy since its inception. Conceived during a time of military dictatorship as a tool to tackle those troublesome politicians, its first chairman would resign because of General Musharraf’s predilection for selective accountability. Corruption cases would appear against politicians only to magically disappear when they joined the PML-Q and allied with the dictator. But that was 1999, surely NAB could discard the yolk of its politicised past and redeem itself as a fair adjudicator of the corrupt? Not quite it seems. In this year alone, it has taken actions whose timing is questionable and does it no favours: The announcement of the conviction against Nawaz Sharif before the general elections; the arrest of Shehbaz Sharif before the by-elections has fuelled the rhetoric against it as an independent adjudicator. The arrest of the leader of the opposition is perhaps the most glaring instance of NAB’s failure to foresee the long-term repercussions of its actions. Shehbaz Sharif, by all accounts, was cooperating with the authorities and there seemed to be no concrete evidence against him, yet days before the October by-elections he was detained. One can hardly fault the opposition and the government’s detractors for crying foul.

However, it is perhaps NAB’s blatant disregard for due process that hurts its legitimacy the most. It arrests people on the basis of suspicion, without concrete proof, and creates a media spectacle out of it. When it paraded several university professors in handcuffs before the media, it robbed them of their dignity and reputation before a trial had even begun. Nothing can bring their reputation back if no case is made out against them, and I assure you it didn’t help NAB’s case. NAB needs to try and respect a person’s presumption of innocence and that isn’t achieved currently with the way they treat an accused. Before a formal charge is framed, NAB should refrain from populist tactics and resist the impulse to feed our society’s thirst for accountability.

There are many other aspects of the NAB Ordinance that bludgeon due process to a pulp. Currently NAB has the ability to detain an accused — without charge I may add — for 90 days. That is three months in jail, while NAB figures out whether it has a case against you. This tactic is actually a means of coercing a confession out of an accused. Senior lawyer Azam Nazeer Tarar, talking to a prominent newspaper, said that some of his clients who had been detained by NAB for 90 days had been kept in solitary confinement in basements that measured a mere eight by eight feet. Through such tactics NAB gets its confession without having to build a proper case against someone.

If such draconian measures were not enough to make our constitution’s right to fair trial moan in pain, the NAB Ordinance does not allow an accused to get bail through the ordinary court process. The only way to do so is through filing a constitutional petition before High Court that can be a lengthy procedure. In one case where my firm was representing an accused, it took nine months for the Islamabad High Court to decide and grant bail to our client. NAB also has the ability — as was on display in the Avenfield verdict — to reverse the burden of proof and discard an accused’s presumption of innocence.

With such an institution, wielding such draconian powers, can it ever dream of being considered legitimate? People believe in court decisions if they are seen as the outcome of a fair process. They lose that faith when the process is so rigged in favour of one side that the outcome is a foregone conclusion. NAB is structured in a way that undermines due process, it is acting in a way that gives the impression of selective accountability, and it is paving the way for a constitutional crisis. A substantial overhaul of our law on accountability is needed if we wish to avoid this outcome. We need a law that respects due process, the dignity of every person, and ensures that it is according to the rule of law that people are arrested and detained, not because of current populist sentiment.

From 1999 till today, almost every political party has felt the scourge of NAB being used as a political tool to settle vendettas. It is therefore time, as John Rawls would say, for an ‘overlapping consensus’ towards upholding due process, resulting in a new legal framework for accountability. One that has more legitimacy than what we currently have.

Published in The Express Tribune, October 23^rd, 2018.

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