ISLAMABAD: The Islamabad High Court (IHC) on Tuesday dismissed the referral by the National Accountability Bureau (NAB) Nandipur to Prime Minister Imran Khan’s advisor Dr Babar Awan and former Prime Minister Raja Pervez Ashraf, calling it unconstitutional, highlighting the paralysis of the governance system owing to bureaucratic machinations.
‘The protection of the governance system from the unreasonable exercise or misuse of the powers bestowed on the Bureau is in the public interest,’ the IHC ruled when the petitions relating to the relation were being disposed of.
Mr Ashraf and former law secretary Masood Chishti have filed petitions seeking to quash the reference.
The reference was based on the delay in getting an opinion on the Nandipur power project by the law minister. A commission led by retired Justice Rehmat Hussain Jafery to investigate the matter was formed by the Supreme Court.
Court says NAB did not conduct fair and impartial probe against accused
On March 18, 2018, NAB filed a reference against Babar Awan, Raja Pervez Ashraf, retired Justice Riaz Kiani and Masood Chishti and other former law secretaries.
An IHC division bench including Chief Justice Athar Minallah and Justice Aamer Farooq noted on Tuesday that there was no fair and unbiased inquiry by NAB. ‘It is evident from a clear reading of the report that the investigation officer was affected by the trials before the Supreme Court of August in such a way that parts of the report of the [Justice Jafery] Commission were repeated verbatim.
There was no allegation, however remotely, that the appellant had ever obtained some advantage or applied to any citizen undue favour. The loss estimate was often based on mere presumptions and was mostly tied to price escalation, the court stated.
The court noted: “The report by the Commission did not allege corruption… The report attributed the delay and loss on the part of the Ministry of Law and Justice to ‘negligence.'” The loss calculation was based on assumptions that reputable chartered accountant firms had demonstrated their failure to undertake such an assignment. The Bureau could not put before us any order issued by the August Supreme Court ordering the launching of criminal proceedings pursuant to the 1999 [NAB] Ordinance.
“The IHC order stated: “The manner in which the matter was dealt with at most between various ministries poses concerns about governance, but it can be regarded as the commission of a criminal offence under the 1999 Ordinance by no stretch of the imagination. It should also not be ruled out that fear of being subjected to proceedings among the bureaucracy may have been the probable cause of the delay, but there is nothing on record to even show a guilty mind or presence of mens rea [criminal intent], let alone fulfilment of the ingredients of the alleged crimes.
Nevertheless, if the accountability mechanism is not administered with care and solely within the guidelines specified by the legislature, it may inflict irretrievable damage to the governance structure and validate the questions posed by the August Supreme Court about paralysis of the state machinery.’
“Bureaucracy is the enduring and competent component of the state’s executive branch. It plays a crucial role in the country’s governance and in supporting the selected leaders in the policy formulation process.
Governance refers to the decision-making process and the method by which policies are enforced. It is assumed that any bureaucrat will take multiple decisions and actions every day. Some bona fidelity judgments can be contrary to the law or represent divergence from established precedents and thus legally constitute abuse of authority.
The court noted: “Bureaucrats are people and can therefore err in making decisions or actions as well, but it would not necessarily attract criminal responsibility.” In order to execute roles and responsibilities, innovation, flexible thinking and the ability to take actions and decisions are necessary qualities of a bureaucrat.
However, if the oversight mechanism would not differentiate between, on the one hand, simple abuse of power or inability to exercise it, and, on the other hand, corruption and unethical practises, it will ultimately lead to the development of a system of terror. This fear is certainly crippling and has a negative influence on the structure of government.
Obviously, it discourages the bureaucracy from being innovative and prohibits particular bureaucrats from conducting their roles and duties effectively, which is obviously not in the general interest and thus affects the basic rights protected by the constitution. They are unlikely to contribute to maintaining democratic governance in such a situation.
“The order stated that the entire reference to Nandipur was “linked to the bureaucratic decision-making process and there was no presence of corruption and unethical practises in the light of the offences mentioned in Section 9(a) of the 1999 Ordinance.
In conclusion, the court expressed the expectation that NAB “will ensure that extreme caution and care are exercised when dealing with cases that do not involve an obvious element of corruption and corrupt practises.”