Principles of accountability

There is no arguing with the fact that accountability is important in a democratic society. Not only is it a bulwark of the rule of law, it is also necessary for fostering trust amongst people towards public officials.

Precisely because of this importance, any mechanism of accountability must be fair, just, and reasonable.

We could spend countless hours pontificating over what we mean by these loaded and imprecise terms, but the Constitution spares us this exercise. A process of accountability is ‘just’ if it guarantees respect for human dignity; ‘fair’ if it abides by the principles of due process; ‘reasonable’ if it is not the result of arbitrary discrimination.

The National Accountability Bureau functions in violation of all three of these principles according to a recent judgment of the Supreme Court authored by Justice Baqar.

A searing indictment of Pakistan’s accountability framework, Justice Baqar invokes John Locke, Ronald Dworkin, John Stuart Mill, and Antonio Gramsci to allow us to bear witness to the panoply of constitutional abuse being undertaken by NAB.

From the day it was created, NAB was a tool of political victimisation. Conceived during a military dictatorship to bludgeon political dissent into line, its first chairman resigned because of General Musharraf’s fondness for selective accountability. Corruption allegations would vanish as soon as someone joined the PML-Q and raised a toast to the dictatorship.

Over the years, NAB has functioned in extremes. It has either been dormant, muzzled and shackled by the ruling government, or been used as a hammer to crack every nut shaped like a political opponent. There has been no period of actual, legitimate accountability.

The NAB Ordinance is facially incapable of respecting the three pillars of legitimate accountability. NAB has the ability to detain an accused — without charge — for 90 days. An extreme denial of liberty which can take place even when NAB has no concrete evidence against an accused. This detention period is often used as a means of coercing a confession. Senior lawyer, Azam Nazeer Tarar, once described that some of his clients detained by NAB for 90 days had been kept in solitary confinement in basements measuring a mere eight by eight feet.

Neither does the Ordinance allow an accused to get bail through the ordinary court process. The only way to get bail is to file a constitutional petition before a High Court, which can take months to be resolved. And let’s not forget that NAB also has the ability to reverse the burden of proof and discard an accused’s presumption of innocence.

Apart from these facially unconstitutional measures, NAB often deliberately violates constitutional principles in practice as Justice Baqar’s judgment, concerning the Paragon housing scheme, shows.

First, the judgment focuses on due process. The key piece of evidence the prosecution had against the accused was a statement by a co-accused who had turned witness against them. However, this statement was recorded without giving any notice to the main accused, or allowing them the opportunity to cross-examine the witness. A violation of the right to a fair trial, violating multiple Supreme Court judgments including NAB v. Hudaibya Paper Mills.

Second, NAB arrested the accused and kept them detained for 15 months without having any concrete evidence against them that would amount to an offence under the NAB Ordinance. Justice Baqar’s frustration with NAB’s disregard of the constitutional principles of fairness was palpable when he wrote that a person’s right to liberty and dignity could not be so arbitrarily denied. This is particularly telling since under the NAB Ordinance only a ‘reasonable’ belief of a crime being committed is enough to justify an investigation. This requirement is often treated as a low threshold, yet, NAB didn’t even have evidence to satisfy this criteria. No wonder Justice Baqar concluded: “NAB’s conduct throughout this case is a clear manifestation of their utter disregard for law, fair play, equity, and propriety.”

But it was NAB’s politically motivated actions that brought forward Justice Baqar’s ire the most. In one paragraph, he highlighted that NAB was pursuing a mechanism of selective accountability, pursuing cases against members of the opposition while excusing the conduct of those allied with the government.

This paragraph shows the failure of Pakistan’s current accountability framework. Yes, the NAB Ordinance is blatantly unconstitutional for its violations of the right to a fair trial, but even a shiny new accountability law that addresses all constitutional concerns will fail unless it can function above political vendettas.

The PTI claims that the PPP and PML-N governments before it were corrupt in every aspect. However, the majority of PTI’s senior members are politicians who were previously part of those governments. Why then are only members of the opposition being tried by NAB?

Government institutions depend on public trust in their impartiality in order to exercise power legitimately. 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.

Legitimacy depends on fairness. People believe in court decisions if they are seen as the outcome of a fair process. That faith is lost when the process appears rigged in favour of one side so that outcomes become foregone conclusions. NAB’s powers are both structured, and exercised, in a way that gives the impression of selective accountability. The NAB Ordinance must be repealed, and a new system, one that respects due process, the dignity of every person, and the rule of law, needs to be enacted.

If today the opposition and members of the press feel they are being victimised by the government, there will come a time when these roles are reversed. It will be the PTI in opposition, and then they will be on the receiving end of this political tool. The cycle will continue, and democracy will continue to crumble.

Published in The Express Tribune, September 8^th, 2020.

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