The Hour of Reckoning?

By Amir Zia

December 2018

Monthly Newsline

The battle to rid Pakistan of corruption will prove as murky and controversial as the corruption it is riddled with until the PTI government ensures that the process of accountability is accepted as transparent by the country and the world.

When the disqualified former premier Nawaz Sharif, his daughter Maryam and son-in-law Mohammed Safdar filed applications in the Islamabad High Court (IHC) for the suspension of their sentences in the Avenfield Case, senior officials of the National Accountability Bureau (NAB) and some hawks in the legal fraternity believed that they had little chance of walking out of prison anytime soon.  

But once the hearing, with the two-member IHC bench – comprising Justice Athar Minallah and Justice Miangul Hasan Aurangzeb – proceeded, the judges’ remarks about the accountability court’s line of questioning and judgement clearly indicated what the outcome of the case would be – well before their decision was formally announced.

The NAB’s prosecution team members, led by Akram Qureshi, also made the defence lawyers’ task easier by their apparently non-serious attitude and lack of preparation. At times, the prosecution failed to respond to simple queries made by the honourable judges, such as the price of the Avenfield properties, asking the court to obtain this information from Google.

As a result, Sharif, Maryam and Safdar – awarded jail terms on July 6, of 10, seven years and one year respectively, on July 6 –– walked out of prison on Sept 19, after spending barely 69 days behind bars.

The 41-page IHC verdict, which stated that the accountability court judgment “may not be ultimately sustainable,” came as a blow for NAB. The verdict read, “The petitioners were alleged to have acquired Avenfield Apartments by corrupt, dishonest or illegal means… but the prosecution has not brought evidence in respect of [section 9 (a) (iv) NAO, 1999] [4]. So the accused are acquitted under that section of law.” The IHC judgment added that the bureau did not challenge the said acquittal. 

Raja Aamir Abbas, a leading lawyer and NAB’s former deputy prosecutor general, blamed poor case management for the suspension of the Sharif family’s jail term. “There were simple queries. Every piece of evidence was available in the NAB record and the JIT (joint investigation team) report… it was the bad handling by prosecutors, who did not bother to check the record and assist the court,” he contended.

Shah Khawar, a former judge of the Lahore High Court, too, maintained that the Avenfield case was wrecked by the NAB prosecutors. According to him, the defence lawyers team was strong and included an adequate number of researchers and experts. “Compared to the defence team, the overworked and underpaid NAB team lacked the necessary support – from logistics to research,” he said.

NAB critics say that going by the agency’s ongoing dismal performance, all the high-profile politicians, accused and even convicted of corruption by the lower courts, are likely to get acquittals from the superior courts, just as has been the case scores of times in the past.

Another blow for NAB came in the much-publicised Hudaibiya Paper Mills scam of 1.2 billion rupees, in which the Sharif family also got a clean chit from the Supreme Court. On October 9, the three-judge special Supreme Court bench, headed by Justice Mushir Alam, threw out the NAB petition against the rejection of the plea to reopen this 18-year-old case.  

These two back-to-back judgments favouring Nawaz Sharif and his family members came as a relief to the besieged ousted premier, who after facing seemingly bleak prospects, seemed to have got a chance to regain some lost ground. NAB’s inability to secure convictions from the superior courts of these major political players, despite what appeared to be watertight cases against them, is also a setback to Prime Minister Imran Khan’s dream of a “Naya Pakistan,” of which the accountability of the corrupt was a cornerstone. 

However, NAB – Pakistan’s top anti-graft body – is in a double bind. On one hand it is being criticised for poor investigations and prosecution in mega-scams – such as those involving Sharif and his family – and on the other, it is being accused by the opposition of spearheading a “victimisation campaign” against those who have fallen out of the favour of the powers-that-be.

The attacks on NAB are understandable: it has been assigned the most perilous task of bringing to justice the country’s most powerful citizens – the politically-connected super-rich who are involved in white collar crime. These influential individuals have deep pockets and are able to hire teams of the most expensive lawyers, by means fair or foul and also manage and manipulate the media.  

In an ironic twist of perception, if NAB was accused of inaction during the days of its former chairman, Chaudhry Qamar-uz-Zaman, especially against those in the high echelons of power, it is now being accused of conducting a political witch-hunt after actively pursuing cases against the corrupt. 

According to official sources, the hue and cry against NAB has intensified because many politicians belonging to various opposition and ruling parties are on its radar. A document available with Newsline reveals there is a list of at least 80 influential people, including some senior bureaucrats, against whom references have either been filed, or cases are at the investigation or inquiry stages. 

The list of those under the NAB microscope includes former prime ministers Shaukat Aziz, Raja Pervez Ashraf, Syed Yousuf Raza Gilani and former chief ministers of Balochistan, Sindh, KP and Punjab, including Aslam Khan Raisani, Syed Murad Ali Shah, Pervez Khattak and Shehbaz Sharif, respectively. The names of former finance ministers, Shaukat Tareen and Ishaq Dar, former defence minister, Khawaja Asif, former advisor to the PM, Ameer Muqam, former law minister, Babar Awan, Karachi Mayor Waseem Akhtar, and former petroleum minister, Dr Asim Hussain, also feature in this list. 

And it is not just NAB that is conducting enquiries. The Federal Investigation Agency (FIA) too is handling some high profile corruption cases, including the one involving former president Asif Ali Zardari and his sister Faryal Talpur. The siblings are being investigated by a Joint Investigation Team (JIT) in a case relating to operating fake accounts and making fictitious bank transactions worth Rs 35 billion in connivance with the CEOs of major banks. Pakistan Stock Exchange chairman Hussain Lawai, widely believed to be close to Zardari, has also been arrested in this case.  

No wonder all the opposition parties are closing ranks to blunt the accountability process and are particularly targeting NAB, which is acting as the vanguard in the drive against corruption.

Yet, it is also a fact that Pakistani investigation institutions have capacity issues, which stem mainly from the financial constraints they face in hiring top lawyers and experts (see box: An Underfed Watchdog). However, the opposition leaders portray NAB as a flawed institution, which they “criminally neglected” to fix when they were in power. 

“NAB’s biggest flaw is that it is not above board,” said Dr Musaddik Malik, a Senator belonging to the Pakistan Muslim League-Nawaz (PML-N). “Justice must be seen – practically, factually and empirically – but the perception about NAB is that it is witch-hunting,” he contended.

Responding to the criticism, a senior NAB official, upon request of anonymity, said that his organisation’s work remains “100 percent transparent,” and that there is a computerised monitoring and evaluation system to ensure check-and-balances at every step. “NAB is not a political tool,” insisted the NAB official. “NAB is the target of a smear campaign because it is taking on the corrupt politicians and their operators, who have strong allies in every section of society – from the media to the administrative and political power structure.”  

As NAB pursues some mega scandals worth billions of rupees from Karachi to Khyber and tightens the noose around some political bigwigs, including the Pakistan Peoples’ Party (PPP) president, Zardari and several of his aides, the attacks against the agency have become more ferocious. 

As regards the Avenfield case, NAB sources say that its prosecution team contested the case on merit before the IHC, but the court gave an unprecedentedly and inexplicably long verdict in what was a simple bail case which required a judgement of just a paragraph or two.

“Overall our conviction rate is 77 per cent – the highest compared to any other investigation agency,” he said, adding, “But what can we do if cases keep dragging on in the courts. Currently we have more than 1,200 cases pending before 26 accountability courts, which have been going on for the last four to five years.”

In granting bail to the accused in the Avenfield case, NAB prosecutors maintain, the IHC went beyond its mandate. The agency, in fact, also challenged the IHC verdict before a Supreme Court three-member special bench headed by Chief Justice Saqib Nisar. At the case hearing, NAB prosecutors submitted that the IHC prejudiced the prosecution’s case by holding that the trial court’s judgment suffered from glaring defects and so the sentences given to the accused should not be sustained.

The NAB petition read, “Whether the Honourable Division Bench of the Islamabad High Court has not fallen in error by passing certain observations…which have caused serious prejudice to the cause of the Petitioner-Bureau and may have a very adverse effect while arguing the main Appeal No. 221/2018 pending before the Honourable Islamabad High Court, Islamabad.” 

Former High Court judge, Shah Khawar admits that the IHC’s 41-page order in this case was extraordinary, and perhaps the longest in judicial history in a bail petition. And senior lawyers say that it is rare for a convict to get bail if awarded a 10-year jail term, as was the situation in Sharif’s case. 

NAB sources and independent lawyers meanwhile, maintain that Avenfield was an open and shut case. According to them, there is ample evidence to corroborate that the Sharifs owned flats in Avenfield since 1993, not 2006 as claimed by them, but the accused just proved lucky. 

There is no disputing that the two offshore companies – Nielsen Enterprises Ltd and Nescoll Ltd, linked to the Sharif family – own four luxury flats in Avenfield House, London, numbering 16, 16-A, 17 and 17-A, all situated on one floor and converted into one big house. However, what is under dispute, is the time frame of these purchases.

Included in the list of 80…

1) Syed Murad Ali Shah (CM Sindh) Misuse of authority in STEVTA case.

2) Agha Siraj Durrani (Speaker, Sindh Assembly) Inquiry into illegal assets and illegal appointments.

3) Pir Sibghatullah Rashdi (former minister) Inquiry in illegal allotment of plots.

4) Jam Khan Shoro (former minister) Inquiry in corruption and illegal allotment of plots.

5) Liaquat Jatoi (former minister) Inquiry in assets case.

6) Babar Ghori (former minister for ports and shipping) Investigation in illegal appointments in KPT.

7) Ghulam Haider Jamali (former IG Sindh) Investigation in corruption and corrupt practices.

8) Manzoor Qadir (DG SBCA) Reference filed in corruption.

9) Manzoor Wassan (former minister) Assets beyond known sources of income.

10) Akram Durrani (former CM, KP) Inquiry in misuse of authority.

11) Sardar Sanaullah Zehri (former CM, Balochistan) Inquiry in assets beyond known sources of income.

12) Mushtaq Raisani (former secretary finance) Caught red-handed and recovered Rs. 67 crore of

corruption money.

13) Shaukat Aziz (former PM) Inquiry in assets beyond known sources of income.

14) Syed Yousaf Raza Gilani (former PM) Reference: OGRA corruption scandal.

15) Chaudhry Shujaat Hussain (former PM) Inquiry in assets beyond known sources of income.

16) Chaudhary Pervaiz Ilahi (former CM, Punjab) Inquiry in assets beyond known sources of income.

17) Zulfiqar Bukhari (Special Assistant to the PM) Inquiry in offshore company case.

18) Babar Awan (former minister for law) Reference filed in delay in Nandipur project.

19) Lt General (R) Saeed-uz-Zafar (former Reference filed in Royal Palm Case.

chairman, Pakistan Railways)

20) Major General (R) Hamid Hassan Butt Reference filed in Royal Palm Case.

             (former general manager, Pakistan Railways)

The Sharifs first bought flat no. 17 through Nescoll Limited in June 1993, followed by the purchase of flats 16 and 16-A on July 31, 1995. Flat 17-A was the last to be bought on July 23, 1996. The Sharif family also owns flat 12-A in Avenfield House, but it was bought through Flagship Investment Limited – a firm registered in the United Kingdom, with Hasan Nawaz Sharif as one of its directors.

NAB sources contend that while formulating their judgement, the IHC overlooked the attested letter from the British Virgin Islands authorities, which declared Maryam as beneficiary owner of these properties. In 2013, in his declaration before the Election Commission, Nawaz Sharif had shown Maryam as his dependent. Then how, ask NAB officials, could she be a beneficiary owner of these apartments way back in the 1990s? They maintain that the burden of proof remains on the Sharif family. Where did they get the money to buy these properties, what was the money trail, etc?  NAB officials also contend that the IHC overlooked the Calibri font saga and the fact that Maryam had herself declared that she does not own these properties.

According to Raja Aamir Abbas, given such solid evidence, questions must be raised about the prosecutors’ performance before the IHC bench. Some lawyers suggest that the Prosecutor General, NAB, should be held accountable because of his poor selection of lawyers.

“It seems that NAB has become a club of retired judges,” said one lawyer, who asked not to be named. He added that the NAB chairman must find out whether any nepotism was done in the selection of lawyers by the special prosecutor.

Owing in part to the legal wrangling and media hype on the merits and demerits of the Avenfied case, and on account of other high- profile cases it is pursuing involving the country’s rich, famous and powerful, NAB is itself now also under the microscope.

A sense of unease and nervousness prevails among the first tier leaders of the major parties, which have intensified following statements by Prime Minister Imran Khan that he will not spare any of the corrupt, while his Information Minister Fawad Chaudhry has repeatedly said in his brazen statements about the opposition, that at least 50 politicians will soon be in jail.

With accountability increasingly a thorny political issue, a group of high-powered politicians want this process to come to a halt and the country to move on. Imran Khan and his followers, meanwhile, are focused on increasing the heat on the corrupt. This will inevitably sharpen the political divide and create further polarisation in an already unstable and fragile democratic system. Prime Minister Imran Khan has repeatedly asserted that the cases currently being pursued are all old and that the PTI government has yet to file a case against the corrupt.

With corruption now a buzzword in politics, a halt in the accountability process, or the system’s inability to attain the convictions of those seen as corrupt, will only shake the confidence of the masses with regard to the democratic dispensation. And so, the heavy burden of keeping the accountability process on course remains with NAB to bear.

According to NAB’s official record, it has arrested 503 people from October 11, 2017 to September 30, 2018, under its current Chairman, Justice (Retd.) Javed Iqbal. During this period, the record shows, the agency deposited more than Rs 2,580 million in the national exchequer after recovering this money from corrupt individuals and groups. “These figures speak volumes about NAB’s performance,” said the official.

That notwithstanding, NAB critics say that the accountability process remains lopsided and that only political opponents are targeted, particularly PML-N and PPP leaders.

NAB’s image took another hit when it presented Dr Mujahid Kamran, a former vice chancellor of the Punjab University, and four other former colleagues of his, in handcuffs in the court in a corruption case. This episode was condemned by civil society, and prompted the Supreme Court to take suo-moto action against NAB.   

Dr Musaddik Malik of the PML-N says he believes NAB’s accountability is selective. “PML-N chief Shehbaz Sharif was arrested at the investigation stage of the (Aashiana) housing scheme case, but there has hardly been any development vis-a-vis other scams, such as the multiple million rupee National Insurance Company Ltd (NICL) and the Employees Old-age Benefit Institution (EOBI) ones. He continued, asking, “And why has Babar Awan not been arrested even after the filing of a reference against him?”

Meanwhile, both PML-N and PPP leaders now say that they erred by failing to reform NAB and introducing some oversight to its operations.

Former information minister and key PPP leader, Qamar Zaman Kaira said that his party’s position was clear on NAB from day one: i.e. that it was created to victimise opponents and to force politicians to change their loyalties.  

Dr Malik added that NAB laws are draconian since there is no recourse available once the agency initiates an accountability process against an individual, putting the burden of proving his/her innocence on the accused.

NAB, established by former military ruler General Pervez Musharraf in November 1999 – a month after his bloodless coup – replaced the infamous Ehtesab Commission led by former senator Saif-ur Rehman, Sharif’s close aide.

NAB, initially led by Syed Mohammed Amjad, a serving military general, won accolades when it began the accountability process, but within a short span of time, the military-led government fell into the trap of pragmatic politics. The result was selective accountability, in which many politicians were given a clean chit once they switched camps.

Even Nawaz Sharif, Musharraf’s chief nemesis, was granted relief from NAB as it was not allowed to pursue cases against him, including the one about the Hudaibiya scandal, which was eventually quashed by the Lahore High Court in 2014. To add to its waning efficiency and efficacy, it took 1295 days for NAB to move an appeal against the LHC judgment, raising many questions about its independence and autonomy.   

Kaira acknowledged that NAB has done well in regard to loan recoveries, but its role remains controversial when it comes to the accountability of politicians. He stated, “When the PPP was in power, we wanted to improve and empower NAB, but the PML-N did not support us. The PPP wants NAB to refrain from selective accountability. And we are not the only one saying this. Other parties, as well as the Supreme Court, have also raised questions about NAB.” The PML-N’s Dr Malik admits that a lack of trust between the two major parties prevented them from cooperating on NAB, which, he concedes, was a big mistake. 

NAB officials, meanwhile, reject the charges levelled by the mainstream parties that only the PML-N and the PPP are being targeted, and emphatically maintain their operation remains unbiased and even-handed.

Explaining why many publicly touted cases seem to have gone off the radar, a NAB official disclosed, “Now we cannot share the findings of our inquiries and investigations because the Supreme Court has barred us from doing so as it often results in a media trial.” However, he added that cases against all the individuals involved in financial irregularities are at different stages and they are all being aggressively followed.

NAB officials say that compared to the past, when the executive authority tried to create obstacles in their investigations, the PTI government is helpful. The prime minister has indicated that there will be no interference in NAB operations, because it is an independent body. And, they cite the case of Babar Awan, a key PTI leader, who was asked to resign as soon as NAB moved a reference against him. This, they say, is a good omen.

However, some NAB officials admitted that the issue of capacity vis-a-vis the NAB’s investigation and prosecution operations are a challenge. Said one source, “The powerful accused hire the best lawyers, paying millions of rupees in fees, but NAB is unable to hire any top experts and lawyers because of financial constraints.”   

For example, the maximum gross salary of a NAB prosecutor is no higher than 120,000 rupees. Some special prosecutors do get higher ruminations in a few cases, but even their fee remains peanuts compared to what the powerful corrupt elite can offer their lawyers – ranging from 20 to 40 million rupees, and sometimes even higher per case.

NAB officials say that their institution has strict standard operating procedures, which fix a time-frame of 10 months to verify each complaint, conduct an inquiry, carry out an investigation and file a reference.

NAB officers are given two months for complaint verification, during which only the complainant is called and his affidavit taken. Over the next four months, an inquiry is conducted during which both, the complainant and the accused, are called. And then, if the inquiry warrants a proper investigation, another four months are allocated for this process. 

Asked about the arrest of Shehbaz Sharif at the inquiry stage, which raised many eyebrows, NAB sources claimed that while the former Punjab chief minister appeared before the NAB authorities when summoned, he remained uncooperative with investigators. “If the question was about apples, he would talk about oranges,” said a senior NAB official. “The NAB chairman had the power to have him arrested,” he added.

However, another NAB official admitted that restraint could perhaps have been shown in this particular case since Shehbaz was willing to appear before the investigators. “The PML-N has gained because of Shehbaz’s arrest, while the credibility of NAB is being questioned,” he said.

Indeed, it appears, in high-profile political cases, the optics are important. A former NAB official, who also spoke on the condition of anonymity, added that there have been cases when flaws in the investigation and prosecution have deliberately been left, which benefit the accused once the case reaches the superior courts. “This is often done by design, and sometimes by default,” he disclosed.

While some major political parties want to do away with NAB altogether, or curtail its powers by introducing parliamentary oversight, and to continue the bipartisan appointment of the NAB chairman – done jointly by the leaders of the house and opposition —  there are suggestions from independent quarters that this institution should be brought under the umbrella of the judiciary. There are also talks underway between the PTI and the opposition parties to introduce reforms in NAB. 

“How can the leader of the house and the leader of the opposition appoint anyone to such a key position if they are themselves under investigation, or in fear of it in the days to come, as is the case for both, Nawaz and Shehbaz Sharif,” said Raja Aamir Abbas. He added that the PTI government must think of ways of making NAB more independent and autonomous if it is sincere about holding the corrupt accountable, and remove the procedural flaw in the appointment of the NAB chairman. He suggested that the appointment should be left to the judiciary.  Abbas referred to Qamar Zaman Chaudhry, the predecessor of the current NAB chairman, who was known for his inaction against the Sharifs and their federal and provincial governments, in this regard, reiterating that such anomalies must be removed.

 There is also a need to restructure NAB, maintained Abbas, and to provide it with the financial resources to hire the best human resources to pursue major cases. Raja Aamir Abbas underlined the need to appoint people on merit and of doing away with the system of plea bargains.

However, NAB officials defend the plea-bargain system, saying that it is as good as conviction without keeping convicts in prison. They contend that government officials who are found culpable in cases, will be barred from holding any office for at least a period of 10 years. Private citizens, meanwhile, will not be eligible to acquire bank loans.   

NAB officials also argue against the proposal that a suspect should only be arrested after approval from court. They say the proposal is flawed because it allows the accused the space to manipulate and misuse the judicial system to evade arrest and accountability.

In a nutshell, if Imran Khan is committed to holding the corrupt accountable, his government will have to give NAB more bite, powers, and independence, while simultaneously introducing judicial reforms to ensure speedy trials. 

The question is, will the PTI be able to do the needful for its much-vaunted “Naya Pakistan,” given the fact that its legal team comprises tried and tested old faces – from the borrowed law minister, Farogh Naseem of the MQM, to the Attorney General, Anwar Mansoor Khan, who served in the same position after he was was selected by Asif Ali Zardari during the PPP’s tenure.

The battle to rid Pakistan of corruption will prove as murky and controversial as the corruption it is riddled with until the PTI government ensures that the process of accountability is accepted as transparent by the country and the world.

Ends