The Supreme Court of Pakistan on November 1, 2016 took a serious notice of inaction of National Accountability Bureau (NAB) regarding disclosures in Panama Leaks, showing names of offspring of Prime Minister, public officeholders and many others doing clandestine/suspicious businesses or hiding untaxed and/or dirty money in notorious tax havens. This has once again proved the ineffectiveness of NAB, established to "eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto".
It is shocking that NAB, Federal Board of Revenue (FBR), State Bank of Pakistan (SBP) and Federal Investigating Agency (FIA) have miserably failed to check/counter corruption, tax evasion and illegal flight of capital. The assets stashed abroad in tax havens usually represent funds generated through illegal activities (drug trade, prostitution, gambling, human trafficking, smuggling and other criminal activities), tax evasion (it includes aggressive tax planning), plundering of national (through corruption) by politicians, public office-holders and State functionaries. The NAB, FIA, SBP and FBR never thought of establishing a joint force to counter these menaces.
On February 16, 2016, the National Accountability Bureau (NAB) set March 31, 2016 as new deadline to decide the fate of corruption investigations against Prime Minister Mian Muhammad, Nawaz Sharif, and Punjab Chief Minister, Mian Shahbaz Sharif, according to a report published in an English newspaper. Till to date no further update is given by NAB. Earlier, the NAB deadline of December 31, 2015 for deciding the fate of these cases was not met and the Director General concerned sought more time ie till March 31, 2016.
Like many others, Prime Minister Nawaz Sharif has reportedly been upset that these cases are pending with NAB for over a decade now. These have neither been closed nor has a formal reference been made against him. The consistent view of Nawaz Sharif and his supporters is that these cases are politically-motivated. The official view of NAB is that "present strategy of Chairman NAB is to decide the fate of all those cases which are pending since long after a thorough investigation so that no one is blackmailed or unnecessarily vilified". Under this strategy, according to NAB, a large number of inquiries/investigations have either been dropped or turned into references. Two separate investigations are under progress against the Prime Minister. In one of the cases, Nawaz Sharif, Shahbaz Sharif and others are alleged of misusing the authority in the construction of a road from Jati Umra near Raiwind to Shamim Farms, palatial residence of the Sharifs. The case is pending with NAB since 2000, and involves the alleged misappropriation of Rs 125 million. In other cases, the incumbent Prime Minister is accused of making illegal appointments in the Federal Investigation Agency (FIA). This inquiry is pending against him since 1999.
These cases against the Sharifs were included by the NAB among "150 mega corruption", the list of which was presented by the Bureau before the Supreme Court of Pakistan on July 6, 2015. Among the rulers, besides the Sharifs, a case against Finance Minister Ishaq Dar was also shown in the list of mega corruption cases. Dar's case was to be concluded by December 15, 2015 but the NAB further extended the deadline to February 29, 2016. Investigation against Dar was pending with NAB since 2000. Dar was accused of misusing authority and having assets beyond known means (reportedly in July 2016 NAB cleared him of all charges). Following the reflection of these names in the list produced before the apex court by NAB, the PML-N government strongly reacted and Prime Minister personally criticised the Bureau.
It is pertinent to mention that National Accountability Ordinance, 1999 ["the Ordinance"] is applicable from January 1, 1985, meaning by that any offence mentioned in section 9 since the said date can be taken cognisance of any time. Section 9(a)(vii) of the Ordinance treats issuance of "any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or attempts to grant any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person" as corrupt practice.
The Chairman NAB was/is duty bound to take action for issuance of such notification mentioned in Para 50 of Messrs Pak Ocean and Others v Government of Pakistan through Secretary, Ministry of Finance, Central Secretariat, Islamabad and others 2002 PTD 2850 in the following words:
"Mr. Khalid Anwar, has mainly placed reliance on the judgement in the case of Ittefaq Foundry v. Federation of Pakistan, PLD 1990 Lahore 121. In the cited case it was contended that the petitioner was producer of billets and that there were other producers, producing ingots, the end-product whereof was same. In order to economically ruin the petitioner in the cited case, duty structure was changed in the year 1989 without reasonable justification and the change in the duty structure was against the rights guaranteed in Articles 4, 18 and 25 of the Constitution. The contention of the petitioner was accepted and the relief was allowed. However, with the change in fortunes, the persons were feeling the pinch of oppression in the case of Ittefaq Foundry v. Federation of Pakistan, became the rulers and thereafter, they very easily and conveniently managed to forge the treatment given to them and got the duty structure changed through notification assailed in these petitions, thereby deriving huge undue benefit at the cost of total destruction of the small importers and traders of the scrap in loose form".
The fact of issuance of SRO for "huge undue benefit" was never contested in the Supreme Court by the beneficiaries. The Chairman NAB was
therefore duty bound under the Ordinance to take action which he never took. The second glaring example of inaction on the part of Chairman NAB are the large cases of loan defaults by holders of public office-details are available in 'Loans and 'dirty' politics', The News, November 28, 2014. The names include members of many political parties, including PML(N) and PTI that are presently engaged in bitter legal battles against each other.
In a recent judgement in JDW Sugar Mills Ltd etc. Versus Province of Punjab etc , the Lahore High Court has mentioned in Para 40 and 42:
"In this case, the relocation policy has not benefited or protected the national interest but is aimed to facilitate certain sugar mills, which happen to be owned by the families of the Chief Minister, Punjab and the Prime Minister of Pakistan.
The matter does not end here. The Government not only designed a policy to cater to a few sugar mills but it also failed to take action against the Respondent sugar mills for establishing new sugar mills without any permission whatsoever required under the law. The Respondent sugar mills have failed to comply with the requirements of the environmental laws of the Province and have admittedly not taken the required permissions".
In the end in Para 45, the Lahore High Court has directed that the Government to take "necessary legal action against the Respondent sugar mills pursuant to the show cause notices issued to the Respondent sugar mills on account of their establishing new sugar mills without seeking the prior permission from the competent authority required under the law". This case must be investigated by NAB in the light of above findings of the Lahore High Court.
The Chairman NAB has wide powers under the Ordinance that include seeking assistance from local/foreign governments/agencies for investigation and even freezing of assets at home or abroad, created from corruption/corrupt practices. Interestingly, in Panama Leaks, certain offshore companies in British Virgin Islands (BVI) are admittedly owned by the sons of Prime Minister with their sister as "beneficial owner". The matter has not been investigated by NAB though powers are available to Chairman under section 21 of the Ordinance. The same is the case of such companies in the name of two leading figures of PTI, namely, Jahangir Tareen and Aleem Khan, and many others. Thus Supreme Court on November 1, 2016 aptly took NAB to task for such wilful lapse.
On October 20, 2016, the Supreme Court of Pakistan issued notices to the Prime Minister and others in petitions filed by Imran Khan (PTI), Siraj-ul-Haq (Jammat-e-Islami), Sheikh Rasheed (AML) and others. According to a news report, the Chief Justice of Pakistan made it clear that apex court "will not indulge in any political wrangling and will only interfere where the executive failed to fulfil its responsibilities". This was a wake-up call for the Chairman NAB as he did not fulfil his responsibilities in pending cases against the rulers, besides not taking any action against holders of public office mentioned in the Panama Leaks.
On November 1, 2016, the Apex Court asked the Pakistan Muslim League(N) and Pakistan Tehreek-e-Insaaf to submit their Terms of Reference (ToRs) for the formation of a commission to probe the Panama Papers leaks. The Court is determined to settle the issue of Panama Leaks vis-a-vis allegation on the Prime Minister and his family. The Supreme Court made it clear that in case of no agreement on ToRs between the parties, it would decide the same at its own. It must be remembered that the power of the Supreme Court under Article 184(3) of the Constitution for enforcement of fundamental right is not confined to the extent of issue of prerogative writ and also is not necessarily circumscribed by the conditions to limit the exercise of power rather this Article is wide enough to consider the question of public importance relating to the violation of fundamental rights (PLD 2009 Supreme Court 549). (To be continued) (The writers, lawyers and partners in HUZAIMA IKRAM & IJAZ, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).