THE subject of accountability has always been emotive, deeply divisive and highly controversial in Pakistan. To an extent, this is natural and understandable because accountability challenges the status quo and most of the time tends to hurt powerful people and groups who then react with a vengeance, using all their might. This results in intense controversy.
It is, however, not always the individuals subjected to accountability who are responsible for generating controversies. The accountability system, which includes laws governing accountability, institutions investigating and prosecuting, courts adjudicating, and more importantly, people managing and overseeing the accountability processes, is also responsible for raising doubts and complaints about the credibility of the process.
The history of accountability in Pakistan, since right after independence, is replete with controversies. Almost all accountability efforts made by several governments since 1949 have been blamed for being political-victimisation projects. Starting with the Public and Representative Office (Disqualification) Act of 1949 to the current National Accountability Ordinance, 1999, there is a long list of accountability laws which either stand discredited or are on the verge of being so.
The history of accountability in Pakistan since independence is full of controversies.
The Supreme Court’s detailed order of March 2020, on Khawaja Saad Rafique’s bail application, has narrated the history of accountability enterprises in Pakistan and how these failed the very objective for which they were created. Interestingly, the court order began with a quotation which alludes to the real intention behind most accountability efforts in Pakistan. Justice Maqbool Baqar wrote quoting John Stuart Mill: “A state which dwarfs its men, in order they may be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished.”
A number of court orders, observations by judges during court proceedings and at least one speech by justice Asif Saeed Khosa, then chief justice of Pakistan in September 2019 have raised serious questions about the quality of the ongoing accountability process. Some recent amendments introduced in the National Accountability Ordinance, 1999, by the current government have further eroded the credibility of the accountability process. Sadly, these amendments are not enacted through acts of parliament after debate in the Senate and National Assembly and deliberations within the concerned standing committees, as is expected in a democratic dispensation. These amendments, to the contrary, have been brought about by presidential ordinances. Neither was the original law, the National Accountability Ordinance, 1999, passed by parliament because none existed at that time after the military takeover of Gen Pervez Musharraf.
Ordinarily, ordinances lapse after 120 days unless parliament passes them as acts of parliament but this particular ordinance along with many others was accepted as an equivalent of an act of parliament while striking a deal on the transfer of power with Gen Musharraf. Since then, a number of amendments have been introduced in the original law by several governments but most were issued through ordinances, despite the fact that parliament was functioning when these amendments were introduced.
The main reason why these amendments were not debated in parliament was that there was no consensus on the subject among the key parties represented in parliament. The party in power, instead of engaging with the opposition to develop consensus, found it expedient to resort to ordinances, which, despite being an obviously undemocratic provision, continues to exist in our Constitution as a colonial legacy.
The National Accountability (Second Amendment) Ordinance, 2021, and the National Accountability (Third Amendment) Ordinance are the two most recent amendments which have been introduced by the present government in October this year.
The most controversial aspect of the second amendment is making the term of the chairman of the National Accountability Bureau extendable, contrary to the earlier provision of the law which provided for a fixed four-year non-extendable term. The amendment provides for the outgoing chairman to indefinitely continue in office with all powers until the new chairman assumes the position. In addition, the ordinance also provides for the reappointment of the incumbent chairman for another term.
This particular amendment runs contrary to the spirit of the previous provision in which the chairman could not expect the favour of extension in his term or reappointment for another term. The new provision may create an incentive for an incumbent, perhaps compromising his expected position of neutrality and independence. This amendment has been brought at a particularly sensitive time when some federal ministers have openly proclaimed that they expected NAB to pursue the cases of some top opposition leaders in such a way that they be disqualified from contesting the next general election in 2023.
When the government sets such a heavily partisan agenda for a top state institution charged with the responsibility of carrying out accountability as a politically neutral and independent entity, it is not surprising that the credibility of the institution is drastically compromised through such amendments.
The third and the most recent amendment may prove to be the proverbial last straw that broke the camel’s back. Two aspects of this amendment are of particular significance. A number of categories of cases pending with NAB were transferred to various other authorities, departments and courts under laws related to the Second Amendment. Under the third amendment, this provision has been altered to the disadvantage of past governments while giving the benefit of this provision to the incumbent officials.
In addition, the independence of the NAB chairman was earlier guaranteed by providing for security of his tenure so that he could be removed only through the same procedure as is provided for the removal of a judge of the superior court by sending a reference to the Supreme Judicial Council. Under the new provision contained in the third amendment, the chairman may be removed by the president, completely undermining the independence of NAB and effectively making it equivalent to a ministry under the executive.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.