Asad Munir’s Death Makes It Clear. NAB Law Must Be Repealed
Tariq Bashir, a lawyer by profession, argues how NAB law directly contradicts the fundamental principle of ‘innocent unless proven guilty’ granted under Pakistan’s constitution. The law formulated by a military dictator, argues Bashir, is basically a tool for coercion with unbridled powers vested in the chairman, who’s also now investigating into the case against NAB’s highhandedness that Asad Munir’s suicide note had laid bare.
It was a mind numbing and truly heart wrenching news; a retired military man who had served his force with distinction, especially in the field of intelligence, had killed himself. Brigadier Asad Munir was known to the public at large as a knowledgeable, balanced and cerebral TV commentator on defence and security matters. Ethnically a Pakhtun himself, he was known and widely respected for being a living encyclopaedia on tribal areas, Balochistan and Afghanistan amongst his peers on account of his extensive involvement in the above regions while being an intelligence operative especially at the peak of the war on terror.
But for over a year, Asad Munir was being hounded and humiliated on charges, which he believed were frivolous, with a ruthless ferocity that one can easily associate with the NAB investigators. Being handcuffed and paraded before TV cameras is one humiliating part of the vicious media trial which attracts everlasting public odium that every right thinking and dignified person wishes to avoid. Asad Munir was no exception.
The alleged suicide note which the deceased wrote to the Chief Justice of Pakistan illustrates how a citizen turns into the worst villain overnight once the rude and untrained investigators, who can also be described as–amongst other appropriate epithets–wholly unsuitable and unfit for their jobs, decide to prejudge that a citizen is guilty, often without fulfilling the legal requirements prescribed in the National Accountability Ordinance 1999 (NAO) in general and the Constitution in particular with regards to the citizen’s right to a fair trial.
Although a flawed piece of legislation itself, NAO even in its present unfair and unconstitutional form and substance (to which we will turn to later) is not considered sufficiently empowering to an average NAB operative/investigator as far as the conferment of draconian powers to investigate is concerned.
White collar crime which the NAO purports to eradicate is a complex and intricate field and can easily lead a simple mind into assuming a literalist approach unjustly painting administrative discretion as corruption which is and should always be available to an official.
NAB officials’ favourite tool, which has become institutionalized, has been to sniff for any innocuous deviation from practice or rules or an irregularity, which might not necessarily result in financial gain, and conveniently term it as corruption and, while you are at it, arrest all the persons so accused, irrespective of the nature of their alleged role, hoping to fish out the relevant and most suitable incriminating evidence from the accused themselves in order to secure a conviction. In other words, as it has happened in scores of cases over the years, extracting a confession unlawfully while the accused is in custody has been the most favoured investigation technique in NAB cases. But let us first focus briefly on the suicide note left by Asad Munir.
Having himself served as a high ranking NAB officer in the past, it is quite clear from his suicide note that the late Asad Munir had always been opposed to the heavy-handed antics of the trigger-happy, unprofessional and boorish NAB investigators who, in his own words, happen to be in an overwhelming majority within the department.
This brings to mind a similar example of a rookie investigator trying to extract such evidence from a client who was in custody for charges of wilful bank default. As the story goes, the investigating officer after having asked questions on bank loans in general which reflected badly on his meagre and dangerously inadequate knowledge on the subject, “confessed” his shortcomings to his accused regarding matters relating to finance and banking.
Driven by faux national duty:
Having said that, the fact remains that despite the induction of people having banking and financial background/expertise in the NAB in the recent past, the culture that has become prevalent in the department has a lot to do with the flawed legal principles (or should we say the lack of such principles) upon which the whole edifice of the NAB legislation stands.
The rot starts form the top, the Chairman whose appointment and the nature of his sweeping, unaccountable powers to initiate the processes of inquiry and investigation are questionable. And there is more. The Chairman has, some people would argue, unfettered powers of hiring and firing his staff whom he can control and, potentially, coerce while deciding on whom to let loose his beasts of war, mostly driven by political considerations of the day.
The investigator and the prosecutor, already driven by and imbued with a misplaced–albeit well-meaning and self-righteous, at the same time–national duty to eradicate corruption come hell or high water, get busy on creating a “watertight” case after the dear Chairman’s nod.
It has to be said that express bar on consulting the Federal Public Service Commission (FPSC) on postings, recruitment and qualifications under TCS 14.06 [NAB Employees Terms and Conditions (TCS) 2002] is quite unnecessary and, in the final analysis, counterproductive, as it vests the Chairman with excessive powers which ought to be the domain of an independent body like the FPSC in order to minimise possible abuse.
Another out of several such examples is the Chairman’s absolute discretion to appoint advisors and consultants under 14.04 TCS 2002 which makes the NAB legislation unfair right from the beginning. It goes without saying that the above power should vest in the FPSC.
Training of NAB officials
False complaints made to NAB are rare. Most complaints are truthful and accurate and appeal to an unbiased mind as genuine against which the NAB authorities must act but the catch lies in the training to collect the evidence in a fair and lawful way which may be considered adequate for conviction or the lack thereof. This lop-sided approach comes in handy for NAB where the individuals are probed for political or other unlawful motives upon allegations that are either false or wild exaggerations of the truth or, as submitted above, upon acts which may just be described as mere irregularities in legal terms but which NAB officials treat as acts constituting corruption or corrupt practices under NAO 1999.
Although the Chairman is empowered to make rules for carrying out the purposes of NAO, no rules relating to prescribed modes of investigation have been made and the use of Police Rules which are very general and basic in their purpose and effect and, in white collar crimes investigation, leave a lot be desired.
One suspects that adoption of Police Rules, which are so general and woefully inadequate especially for the purposes of investigation in cases of white collar crimes, has been done deliberately in order to give the investigators an open field as far as uncalled for, unlawful, coercive and intimidating conduct of the investigators is concerned.
Punjab Anti Corruption Anti Establishment Rules 2014
Since we are discussing NAB in the context of Asad Munir’s role being investigated as a former civil servant, it will be worthwhile taking a look at the mode of investigation prescribed under the Punjab Anti-Corruption Rules 2014. Rule 3 suggests three possible courses of action to choose from for an ex officio deputy director and director who is conducting an inquiry: a) to recommend to the Director General (DG) for the registration of a case against the accused public servant, b) to drop the charges after having come to such a conclusion after thorough inquiry or c) to forward the case to the appointing authority if there are reasonable grounds to start disciplinary proceedings under the relevant law but not enough grounds to register a criminal case. In case he recommends a) the DG still has the discretion to either order registration of a case for corruption or order further inquiry.
It is submitted that the above procedure may be adopted in the proposed Mode of Investigation Rules in NAB for the process to become fairer and less prone to abuse.
Reverse burden of proof:
The presumption of innocence before being proven guilty is a fundamental principle of law that most constitutional democracies hold sacrosanct and apply the same to its letter and spirit in their respective criminal justice systems. On the other hand, there have been deviations from the above principle in some societies, i.e., reverse burden of proof, on grounds of extraordinary, emergency situations faced by a country.
Let us first look at the historical background of the NAO 1999 which was promulgated after a military coup by General Musharraf with eradication of corruption at the top of his ‘to do list’.
Like the horror we are currently facing collectively as a nation on the denial of fundamental rights to those accused of terrorism in military courts, a similar well-meaning albeit simplistic mind-set was at work when it came to legislation on corruption in 1999.
Section 14 of the NAO envisaged a presumption of guilt by the court if someone was found to be in possession of property for which the accused could not satisfactorily account for, for instance. The above provision set the tone for the future conduct of investigation and trial and became the raison d’etre of NAO presuming quite ala Alice in Wonderland that the Chairman NAB will be a ruthless but honest surgeon urgently required by the ailing nation, metaphorically speaking, never mind fulfilling the legal and constitutional requirements for a fair trial.
Such a benevolent surgeon came along in 1999 when General Amjad Hussain took it upon himself in more than one ways to tackle corruption.
After terrorising and lecturing leading businessmen of the day on how their business dealings should look clean as a whistle like the people from the armed forces, General Amjad, the then Chairman was quietly relieved of his post by Musharraf when the former’s approach started backfiring with the business community sapping investor confidence, apart from other economy destroying symptoms that it induced.
It goes without saying that the tone set by General Amjad still echoes and reverberates in NAB as far as the collective institutional approach is concerned. Although a proviso at the end of Section 14 was inserted in the year 2001 to the effect that the prosecution shall first make out a reasonable case before the burden of proof shifted to the accused, but the damage had already been done. General Amjad’s diktat, although diluted and rejected via the above proviso and subsequent judicial pronouncements by the Supreme Court in PLD 2001 SC 607 (Khan Asfandyar Wali v Federation of Pakistan), PLD 2008 SC 166 (Admiral Mansoor-ul-Haq v Govt., of Pakistan) & 2009 SCMR 790 (Syed Qasim Shah v State) etc, the fact remains that the General’s ghost still haunts lawyers and jurists frequently whenever the application of NAO is discussed and debated both inside and outside the courts.
The imprint of his approach is so difficult to be washed away that it has become imperative to repeal NAO 1999 and replace it with a law with inbuilt legal and constitutional safeguards without compromising its effectiveness with added emphasis on investigating techniques like collection of evidence, forensic expertise relating to white collar crimes and generally on specialized training of the NAB personnel.
Above all, there is a dire need to radically change the mind-set that has become the hallmark of the department for all the wrong reasons.
National emergency (R v Webster  EWCA Crim 2819)
In the UK a case involving an obscure law which placed the onus of proof on the accused to discharge the burden that he/she had not received a gift “corruptly’ gives us insight into how countries with highly developed legal systems view such a deviation from a settled principle of law, i.e., presumption of innocence before proven guilty.
Section 2 of the Prevention of Corruption Act 1916 created a presumption that a gift made by any person holding or seeking to obtain a contract with a public body was corrupt. The Court of Appeal quashed the conviction and ruled that the said provision was against the right of fair trial conferred on a citizen under Art 6 of the European Convention of Human Rights 1950 even though Article 6 did not expressly bar reverse burden of proof, it only conferred a right to fair trial. It maybe noteworthy that the 1916 Act was passed to deal with wartime corruption in relation to a number of large government contracts.
Laura Madhloom in her essay Corruption and a reverse burden of proof which appeared in the Journal of Criminal Law [J. Crim. L. 2011, 75(2)] argues that the court in R v Webster concluded that the imposition of the reverse burden of proof was necessary, reasonable and proportionate response to the circumstances in which it was introduced, i.e., to counter a serious and growing problem involving suspected corruption of public servants in a time of national emergency. Furthermore, the court considered that it was understandable that in the legal landscape of 1916 it was believed that the prosecution would face in many cases almost insuperable difficulties in proving a corrupt motive for a gift.
Similarities with NAB:
If we change the year and geographical location for a moment the above consideration before the UK parliament which passed the 1916 Act sounds like the most powerful and potent argument of a NAB investigator/prosecutor while dealing with alleged corruption by a civil servant. Laura Madhloom further argues that since in 1916 the reverse burden of proof was a critical tool (exactly like NAB ever since its inception) in the armoury of the prosecution in enforcing the law of bribery, and given that it was passed as an emergency measure at that time demonstrates how seriously this type of corruption was viewed.
However, it appears from a historical perspective that Section 2 of the 1916 Act was designed for a specific set of circumstances and that it is possible to deal with this area without the use of reverse burden of proof which violates the right to a fair trial under the provisions of Human Rights Act. 1998.
Article 10-A of the Constitution
The similarities do not end on the need and background to have a law which places a burden of proof on the accused in a specific set of circumstances. The way the court invoked Article 6 and the Human Rights Act 1998 with respect to the right to a fair trial is an eye opener and paves the way for Pakistan to follow suit especially in the light of Article 10-A and move towards reading down or outrightly declaring certain provisions of the NAO as unconstitutional such as those relating to presumption of innocence and denial of the basic fundamental right to bail in order to make the law conform to the Articles relating to such rights in the Constitution.
Specific set of circumstances
Eradication of corruption has been a convenient argument for those who have justified quick fixes by supporting military takeovers in Pakistan which includes measures necessitating abrogation of the Constitution on a few occasions resulting in laws in violation of settled principles of law.
The British Parliament passing a law which reversed the burden of proof on account of a specific set of circumstances during the First World War necessitating such a reversal and the peace time NAB law which is supposed to be on the statute books forever are examples which show two different approaches to corruption.
The former demonstrates confidence in the system especially in the inbuilt safeguards provided in the form of basic fundamental rights: the latter, on the other hand, sounds confused, not at ease at building institutions on sound footings by reposing confidence in laws which are based upon the belief in the dignity of man as given by the Constitution and the laws of the land.
No former judge or army general should be the Chairman
The fact that Asad Munir’s death is being investigated by NAB itself is a stark example of institutional hubris and self-righteousness which was precisely the cause of his death conveniently and arrogantly ignoring the old legal maxim nemo judex in sua casa (no one should be a judge in his own case); equally disappointing to note is the blissful oblivion to the above maxim shown by the current chairman who is a former judge of the Supreme Court.
Time has come for NAO 1999 to be amended to make it Constitution-compliant especially in terms of the right to a fair trial with the right of bail also being afforded to an accused just like under ordinary laws. In addition to the suggestions for reform of the law given supra and in order to end an unhealthy culture of hounding all and sundry without doing much homework under the current scheme, Chairman NAB should be a serving or retired civil servant (appointed by the FPSC through a transparent process) denuded of any judicial powers like plea bargain etc.
Asad Munir’s death must not go in vain.
Tariq Bashir is a Lahore based lawyer. Follow him on twitter @Tariq_Bashir