EDITORIAL: The Supreme Court's detailed judgment announcement on Monday of its March 17 order granting post-arrest bail to PML-N leaders Khwaja Saad Rafique and his brother Khwaja Salman Rafique in the Paragon housing society scandal case is a damning indictment of the National Accountability Bureau (NAB). The verdict written by head of a two-member bench, Justice Maqbool Baqir, observed that "the object, purpose and reason behind the purported inquiry and investigation and the arrest of the accused and keeping them incarcerated for a long period of fifteen months, prima facie, do not appear to be in consonance with or in conformity with the NAO [national Accountability Ordinance]." And lending voice to a common complaint the honourable justice noted that the law mandated investigation to be concluded within 30 days, but investigation is often not concluded for months, and cases remain pending for years. "It is because of lack of professionalism, expertise, and sincerity of cause that the conviction rate in NAB cases is abysmally low," he wrote.
The exhaustive 87-page judgment deals with various systemic wrongs, digressing at times into legal and political arenas not so relevant to the present case. Indeed, no one can quarrel with its assertion that "the concept of presumption of innocence is imperative, not only to protect an accused on trial, but to secure and maintain public confidence in the fairness, impartiality, integrity and security of the criminal justice system." The problem with white collar crimes, however, is that they are difficult, if not impossible, to prove. As a respected public figure, the late Ardeshir Cowasjee famously said in a TV discussion about such cases, "chor sala raseed chod kay jaiga? [Will the thief leave behind a receipt?]". Which is why in assets beyond means cases, the law places the onus on the accused to prove his or her innocence. But the honourable justice is right on where he says that arresting an accused and leveling allegations against him gives rise to a vicious campaign of whispers and mummers subjecting him/her and family to unnecessary humiliation and embarrassment since people often do not differentiate between arrest before conviction and after conviction. In fact, there is a deeply disturbing example of that. In March of last year, after NAB approved filing of a corruption reference against him noted security analyst Brig Asad Munir (retd) committed suicide, accusing NAB of harassing him for six years. He purportedly left behind a note saying he was taking his life to avoid the humiliation of getting handcuffed and paraded in front of media.
There are no two opinions on that the NAO, introduced by the Musharraf regime to browbeat the opposition, is deeply flawed. Yet neither the PPP nor the PML-N, which alternated in power post 2008, made any effort to right that bad law. It remained unchanged even though, as the court has noted, it was frequently alleged that NAB was being flagrantly used for political engineering, and its discriminatory approach was also affecting its image in the public eye. The present government, with its high flown claims of upholding justice and fairness has done little to address this issue. It did make some noises about amending the NAO, only to shift the blame to the opposition parties for non-cooperation. Hearing a suo motu notice about delays in NAB cases before the accountability courts, a three member bench of the Supreme Court has suggested that till the completion of investigations and filing of references before the accountability court the NAB should not arrest suspects. NAB is not likely to do this unless this observation is made an order of the court. Considering that no other functioning democracy has an anti-graft organisation like NAB, a better solution would be to do away with it and let the other relevant agencies, such as the FIA, grapple with issues of corruption.
Copyright Business Recorder, 2020
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