Who will mind the minders?
Dr. Ikramul Haq & Abdul Rauf Shakoori
A fair and effective accountability mechanism is essential for ensuring progress and stability, serving as the foundation for any governance system. Such mechanisms are vital for rooting out corruption, fostering transparency, and building trust in public institutions. However, in Pakistan, the accountability system is mostly compromised, failing to deliver its intended objectives. Unlike other state institutions designed to aid in governance and service delivery, the National Accountability Bureau (NAB) was established with an agenda that deviated from these principles. Instead of focusing solely on promoting accountability and integrity, NAB is perceived as a tool for political gerrymandering, and victimization of public office holders. This has undermined its credibility and effectiveness.
Addressing corruption is important for the country’s progress as it directly impacts economic growth, social equity, and public trust. Effective accountability not only deters corrupt practices but also ensures that resources are used efficiently and for the public good. For Pakistan to achieve sustainable development, it is imperative to reform accountability mechanisms to be unbiased, transparent, and focused on genuine anti-corruption efforts. Only then can the nation move towards a future where governance is truly effective and serves interests of all its citizens.
NAB was formed by late General Pervez Musharraf, a military dictator and usurper who was convicted for high treason under Article 6 of the Constitution of Islamic Republic of Pakistan [“the Constitution”]. The National Accountability Ordinance of 1999 [NAO, 1999], made effective retrospectively from Janaury 1, 1985, was in violation of Article 12 of the Constitution.
Following the October 12, 1999 military coup and seizure of power by General Pervez Musharraf, NAB was handed over to a retired general, Lt General Mohammad Amjad. From 1999 to 2007, the institution was dominated by retired army personnel who manipulated the so-called accountability bureau as a tool for political victimization and advancing their own agenda. Those who aligned with General Musharraf’s political designs were shielded from NAB’s scrutiny, while those who refused to cooperate faced severe repercussions.
This abuse of NAB not only compromised its credibility but also undermined the very essence of accountability and justice. For Pakistan to move forward, it is critical to reform NAB and similar institutions to ensure they operate transparently and impartially. Reformation of these institutions is essential for restoring public trust and ensuring that justice is served uniformly and fairly. This will pave the way for sustainable development and true democracy in Pakistan. An accountable and transparent system is necessary for eradicating corruption and promoting national progress, highlighting the importance of robust action and unwavering commitment to justice and integrity.
The institution’s capability has never been sufficient to achieve the objectives of accountability and combat corruption. This is evident from the fact that the heads of these institutions have consistently been retired generals or judges with no expertise or experience in financial crimes investigation and even the department’s key position holder’s qualification is compromised with the Supreme Court of Pakistan inquisitive about their appointments although it is not their field.
NAO 1999 grants NAB unbridled, unjust and arbitrary powers, allowing them to initiate inquiries and arrest politicians and bureaucrats based on anonymous applications, even in the absence of evidence to substantiate such accusations. People were detained during inquiry stage and jailed for prolonged periods without sufficient evidence to prove their case. These detentions extended beyond regular public officials; even the former prime ministers were convicted on false charges, which were later overturned by High Courts and Supreme Court of Pakistan. Recently, a former prime minister who endured incarceration faced cases of fake corruption charges until recently when NAB withdrew the case against him.
On the other hand, courts have also thoughtlessly disregarded fundamental breaches of human rights. Politicians were unjustly denied bail, with their cases not even being listed for months while they remained in jail in the name of investigation. Many cases were ultimately dismissed in higher courts due to inadequate investigation and lack of evidence, yet NAB failed to rectify its approach, instead continuing onto aligning with the specific agenda. It is disappointing that our military establishment and judiciary are eager to hold politicians and bureaucrats “accountable,” yet when it comes to their own peers, they rely on internal “self-accountability” mechanisms.
The case in point is of a judge of Islamabad High Court (IHC) allegedly holding American Green Card that has drawn significant attention. Upon this revelation, criticisms were leveled against the judge, particularly through social media channels. In response to public scrutiny, the hounourable judge issued clarification that he had disclosed this fact to the Chief Justice of IHC prior to his elevation to the bench. However, significant concerns arise from the absence of any written reference in the release, specifying the Chief Justice of High Court as the competent authority for such declarations or submissions.
Controversy surrounding judges allegedly having a green card has ignited a debate regarding the ethical conduct of judges of higher judiciary. Many believe this campaign in social media took place after exposure of certain agencies of meddling in judicial affairs. The case is presently before the Supreme Court in the wake of a letter by six judges of the IHC written to Supreme Judicial Council.
Under normal circumstances, foreign affiliations of a judge, would certainly raise serious questions about adherence to moral standards, but in the prevailing circumstances it appears part of a nefarious campaign to undermine the higher judiciary. While dual citizenship poses no obstacle under the law for a judge’s selection, transparency and public disclosure are essential criteria for holding such a prestigious position.
This incident also highlights the judiciary’s handling of conflicts of interest and the disclosure of such matters, emphasizing the necessity for clear legal guidelines to govern these situations. Moreover, it highlights the pressing need for enhanced transparency and accountability within the judiciary to uphold public confidence in the judicial system. In the recent past the same judiciary, handled a highly publicised case where the sitting prime minister had to face disqualification solely due to his failure to declare affiliation in a foreign company and non-declaration of receivable salary. Discrepancy in the application of law illustrates double standards wherein judges and politicians are treated with different legal standards.
The fact that a judge deemed it adequate to merely inform a colleague about the matter, without further repercussions, is concerning. Ideally, the court should have elaborated on why it did not allow the former prime minister or any of his fellow parliamentarians to rectify and to include it in their nomination papers. This situation emphasizes the need for greater transparency and consistency in application of legal principles, ensuring fairness and accountability across all levels of governance and the judiciary.
The age-old maxim quis custodiet ipsos custodes (who will guard the guardians themselves?) remains persistent Concern arises as to whether the custodians of justice will continue to function without public disclosures of their assets and liabilities and dual citizenships. When it comes to accountability, it appears that fellow judges convene to determine the fate of each other. Even within the Supreme Judicial Council, instances have occurred where no further action was taken, particularly when a judge opted for resignation. This approach seems even more lenient than the “plea bargain” model employed by NAB, wherein an accused individual must surrender certain financial proceeds before the case is closed.
Accountability stands as one of the most crucial pillars of governance. However, its effectiveness is compromised unless it is applied fairly and uniformly across the board. No individual should be considered untouchable or exempt from the law’s reach, regardless of their position or authority. Thus, ensuring accountability within the judiciary requires a comprehensive and impartial approach that holds all accountable, and without exception.
Surprisingly, the present NAB Chairman has begun personally apologizing to people wronged by the Bureau, including politicians, bureaucrats, and businessmen, acknowledging past mistreatment in the name of accountability. Lt Gen (R) Nazir Butt’s initiative involves visiting victims and their families to offer apologies, aiming to redress the wounds inflicted by NAB’s actions.
Additionally, the media reported that NAB’s standard operating procedures (SOPs) regarding the arrest and interrogation of parliamentarians indicate a significant change in protocol. It is reported that under the new procedures, any complaints against a member of parliament will prompt notification to the Speaker National Assembly and Chairman Senate. Particularly, parliamentarians will not be detained during inquiries based solely on allegations. Violations of these SOPs by officials may result in imprisonment for up to one year and a fine of one million rupees. NAB has requested the Speaker National Assembly’s assistance in enacting these revised SOPs, reflecting a collaborative effort towards procedural reform.
This proactive step is truly commendable. It is necessary for the NAB to revise its SOPs ensuring strict confidentiality regarding all corruption-related inquiries until a case is officially filed in court. Furthermore, arrests should only occur after a court’s verdict, affirming the individual’s guilt. This approach not only safeguards the institution’s integrity and shields it from undue political interference but also preserves fundamental rights like privacy, liberty, and fair trial.
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Dr. Ikramul Haq, Advocate Supreme Court, specializes in constitutional, corporate, media, and cyber laws, ML/CFT, IT, intellectual property, arbitration, and international taxation. He holds an LLD in tax laws with a specialization in transfer pricing. He was a full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He served Civil Services of Pakistan from 1984 to 1996. He established Huzaima & Ikram in 1996 and is presently its chief partner. He studied journalism, English literature, and law. He is Chief Editor of Taxation. He is the country editor and correspondent of the International Bureau of Fiscal Documentation (IBFD) and a member of the International Fiscal Association (IFA). He is a Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and a Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
He has coauthored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
He is author of Commentary on Avoidance of Double Taxation Agreements, Pakistan: From Hash to Heroin, its sequel Pakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. Two books of poetry are Phull Kikkaran De (Punjabi 2023) and Nai Ufaq (Urdu 1979 with Siraj Munir and Shahid Jamal). He regularly writes columns for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.
X (formerly Twitter): DrIkramulHaq
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Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, Investment companies, Money Service Businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).
Over his career he has demonstrated excellent leadership, communication, analytical, and problem-solving skills and have also developed and delivered training courses in the areas of AML/CFT, Compliance, Fraud & Financial Crime Risk Management, Bank Secrecy, Cyber Crimes & Internet Threats against Banks, E–Channels Fraud Prevention, Security and Investigation of Financial Crimes. The courses have been delivered as practical workshops with case study driven scenarios and exams to insure knowledge transfer.
His notable publications are: Rauf’s Compilation of Corporate Laws of Pakistan, Rauf’s Company Law and Practice of Pakistan and Rauf’s Research on Labour Laws and Income Tax and others.
His articles include: Revenue collection: Contemporary targets vs. orthodox approach, It is time to say goodbye to our past, US double standards, Was Due Process Flouted While Convicting Nawaz Sharif?, FATF and unjustly grey listed Pakistan, Corruption is no excuse for Incompetence, Next step for Pakistan, Pakistan’s compliance with FATF mandates, a work in progress, Pakistan’s strategy to address FATF Mandates was Inadequate, Pakistan’s Evolving FATF Compliance, Transparency Curtails Corruption, Pakistan’s Long Road towards FATF Compliance, Pakistan’s Archaic Approach to Addressing FATF Mandates, FATF: Challenges for June deadline, Pakistan: Combating the illicit flow of money, Regulating Crypto: An uphill task for Pakistan. Pakistan’s economy – Chicanery of numbers. Pakistan: Reclaiming its space on FATF whitelist. Sacred Games: Kulbhushan Jadhav Case. National FATF secretariat and Financial Monitoring Unit. The FATF challenge. Pakistan: Crucial FATF hearing. Pakistan: Dissecting FATF Failure, Environmental crimes: An emerging challenge, Countering corrupt practices .
X (formerly Twitter): Abdul Rauf Shakoori
The recent publication, coauthored with Huzaima Bukhari, is.
Pakistan Tackling FATF: Challenges & Solutions
available at: https://www.amazon.com/dp/B08RXH8W46
https://aacp.com.pk/
