That the National Accountability Bureau (NAB) is increasingly viewed as ruthless but also discriminatory in its role as the country's premier anti-corruption authority is a fact that has found its best expression from a detailed judgement of Islamabad High Court that it handed down while accepting the bail pleas of two officials of Pakistan Telecommunication Authority. The court has touched upon various sections of the National Accountability Ordinance (NAO). The judgement also exhaustively deals with the powers of arrest of NAB chairman, lays down parameters for exercise of this authority and spells out safeguards against excessive and arbitrary exercise of power to detain a person. Authored by Chief Justice Athar Minallah, as head of a two-judge bench, including Justice Miangul Hassan Aurangzeb, the judgement hopes the Federal Government and Parliament "will consider to take appropriate measures in order to ensure that accountability process is made effective, transparent and fair and that NAB is equipped and strengthened to meet the challenges and achieve the objective for which it has been established." It says the corrupt must fear NAB while the innocent and honest remain confident that they would not be wronged. Point-wise, the judgement spells out how the NAO provisions militate against an individual's fundamental rights to protection, presumption of innocence, protection against unlawful imprisonment, equality before law, negative publicity, inviolability of human dignity and corruption-ridden plea bargaining. The judgement also takes exception to NAB press releases and "any irresponsible reporting in print or electronic media (that) could ruin lives, including those who at the end of a fair trial are declared innocent".
Insofar as presumption of innocence before conviction is concerned, the judgement refers to the Supreme Court judgement of 2001; according to which, the prosecution has to establish the preliminary facts and after that the onus shifts and the defence is then required to be called upon to disprove the presumption. And as for the bureaucrats, the judgement offers them the much-needed nerve. It says material brought against the accused "should, prima facie, show existence of criminal intent or motive, mens rea, element of conscious knowledge and participation with the objective of obtaining illegal gain or benefit. In the absence of these crucial elements, arrest of an accused would amount to an abuse of power to arrest vested under the NAO. Mere allegations of misuse of authority would not justify depriving an accused of liberty because an irregularity or wrong decision sans criminal intent, mens rea and illegal gain or benefit does not attract the offences under the NAO". The court has sought intervention by parliament and we hope that the PTI government will take the initiative and introduce a suitable legislation in parliament to give effect to the court's observations and findings.