Pandora’s Box

By Muhammad Waqar Rana | March 2021

The Broadsheet case is the latest national embarrassment for Pakistan - a continuing tale of woes and vulnerabilities at international forums. It is a consequence of the casualness with which far-reaching decisions are made by the persons in authority; it is another form of abuse of power. Any system of government that has no built-in mechanism to guard against corruption and mal-functions is bound to fail. Therefore, all modern constitutions have checks and balances. A society that accepts the corrupt and spares the mighty and powerful, is destined to fail. Where thugs and criminals rule and rejoice while the wheel of law tramples on the poor and helpless, nothing can avoid the fall of that state as it is against God’s eternal laws.

Abuse of authority is as old as public institutions. During the last days of the British rule in India, the Prevention of Corruption Act, 1947 was enacted. Earlier, Clive and Warren Hastings, who had further solidified East India Company’s rule in India, were impeached for corruption by the British Parliament. After partition, from 1949-1999, several laws were enacted in Pakistan to ‘punish’ public office holders for corruption but the graph of corruption never came down. The latest report of Transparency International is a further indictment of the crumbling system in Pakistan.

The National Accountability Bureau (NAB) came into being on 16 November 1999 and replaced the Ehtasab Bureau created under the Ehtasab Act, 1997. In the aftermath of the 12th October 1999 military coup, corruption was the ground on which the Supreme Court granted conditional validity to the constitutional deviation of General Musharraf in Zafar Ali Shah’s case. NAB was meant to create awe and fear as admitted by General Musharraf years later while making political fixes. NAB’s authority was purportedly used for a witch-hunt of politicians and the bureaucracy. In Asfandar Yar Wali’s case (2001), wherein the vires of the NAB Ordinance were challenged, it created an exception for judges and army personnel, for they were not public office holders according to the law and judgement. It is said that the judgement violated the basic principle of rule of law viz. equality before law and ripped it of its moral authority.

In this background, the Asset Recovery Agreement was executed on 20 June 2000 between Broadsheet LLP, a company incorporated in the Isle of Man, UK and the then NAB Chairman to trace assets of persons listed by NAB. It seems to have started well, which is apparent from the judgment of the High Court of Justice, London, dated 12 July 2019. NAB, however, rescinded that agreement with Broadsheet. Arbitral proceedings were commenced by Broadsheet between 2009 and 2011. The liability phase proceedings started in January 2016. The award was given in August 2016. The biggest part of the claim was the discount on the assets belonging to the Sharif family as per the judgement based on the award. It seems that street-smart Broadsheet partners outwitted novices at home.

The story is simple. Prior to the agreement, no due diligence was made. After the agreement, when information was shared, compromises were made for political purposes without realizing the consequences. Later, for whom Broadsheet LLP was hired came into power one after another. Broadsheet obtained an award of USD 100 million claim for the unrecovered money. From 2016 to January 2020, there was complete silence about these proceedings. The rest is now in public domain. A commission has been constituted to investigate the bungle up. The history of commissions in Pakistan is not very promising, though.

Broadsheet has exposed chronic defects in Pakistan’s legal and political system which has affected the accountability process and ultimately its development. Causes which led to the Broadsheet debacle are not uncommon, with the ones attributable to the failures of other institutions and public sector enterprises. Pakistan today stands at a crossroads because there is always a square in a hole. No operational independence is given and no performanceor ethical audit of state institutions is conducted. Merit is always violated and competence is lacking everywhere.

NAB’s performance and credibility can improve by bringing in a civilian oversight. It is a federal agency and a part of the Federal Government under Article 98 of the Constitution. It needs to be answerable to the people of Pakistan through their representatives in Parliament. Authority in Pakistan can be exercised only through the chosen representatives. There has to be a civilian oversight of every agency including NAB, as is the case in other countries, to quell fears, exclude arbitrariness and check misuse of power.

It is argued that some inherent defects in the NAB Ordinance hamper its efficiency, performance and impartiality. It needs to be suitably amended in view of some recent critical observations by the Supreme Court. The NAB Chairman’s functions do not necessarily correspond with his eligibility. No justification is given why a retired judge, a general or grade 22 officer should head this institution as their second job. This was done at the behest of the Supreme Court judgement in the Asfandyar Wali case. The appointment of Chairman in NAB is made in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly after an amendment. There is no reason why there cannot be an oversight of Parliament over NAB’s functions and performance.

The Broadsheet case offers an opportunity for introspection and review. International agreements require due diligence and competence and not merely integrity. Broadsheet is a stark example of lack of competence in negotiating international agreements and conducting international arbitrations. It is high time that these matters are handled by professionals selected on merit. Power comes with responsibility. Accountability is a form of responsibility.

The writer is an advocate of the Supreme Court and former Additional Attorney General of Pakistan. He holds an LL.M. degree from Harvard Law School and is the co-author of a book ‘Comparative Constitutional Law.’ He can be reached at mwaqarrana@yahoo.com

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