Daily Times Editorial Jan 30, 2013

NAB Chairman on the SC Chairman NAB Admiral (retd) Fasih Bokhari, in a letter to President Asif Ali Zardari, has pointed the finger of accusation at the Supreme Court (SC) for unnecessarily pressurising NAB investigating officials in high profile cases, especially the Rental Power Projects (RPPs) case. If these concerns are not addressed expeditiously, the Admiral wrote, it will not be possible for him to fulfil his responsibilities and has hinted at resigning. The Admiral has pointed out that the country is poised at a critical juncture in its history when fair and free elections are anticipated. At this juncture, the people, political forces and the military are on the same page and determined not to allow non-state actors to derail the democratic transition. The Admiral has made a distinction between the legitimate role of the SC in monitoring NAB investigations to the limited extent of ensuring fair investigation, but criticised the growing tendency of the court to itself get involved in guiding investigation in a direction desired and perhaps pre-conceived. Contempt notices (of which the Admiral too has received one), verbal orders that differ from written ones, insufficient time to prepare numerous progress reports are all placing extreme pressure on NAB officials, running the risk of NAB personnel losing their independence and being rendered unable to conduct their investigations in a proper manner. Admiral Bokhari referred to the matter of investigation of very senior members of the government, in which orders even to arrest them had been issued on the basis of regional investigators’ reports, which had yet to be put up to and decided upon by the Executive Board of NAB headed by the Chairman, the only authority so empowered. He refers to the National Accountability Ordinance, which mandates that no reference can be filed unless the chairman has been allowed to exercise his mind on the matter before him and decide whether a clear case of criminality had been made out. In a memorable quote to reiterate that he is under a statutory obligation to uphold the law, the Admiral says, “…there can be no sacred cows, nor raging bulls”. Turning his attention to the media, the Chairman states that there is a clear revolt within NAB, abetted by a certain section of the media that has used the death of NAB investigator Kamran Faisal to vilify the Chairman and some senior NAB officials. “This section of the media appears to be acting as an intelligence unit influencing the public, and possibly influencing certain members of the judiciary. Long-standing ‘stay’ on taxes to be paid by this media house appears to be relevant also,” the Admiral writes. This campaign he argues, in which the role of the SC is evident, is placing great pressure on him to please the court, which could be construed as pre-poll rigging (since by implication it is aimed only at the government). He asks the relevant state institutions to look carefully at the possible role of members of the judiciary and a section of the media in undermining state institutions and the confidence of the people in the state itself. The letter in question has reached the media and been fully reported without any explanation how such a sensitive communication between the chairman NAB and his boss, the president, has become public property. This mystery aside, the contents of the letter constitute a damning indictment and devastating critique of the apex court and sections of the media. The sum total of the NAB Chairman’s charges against the SC revolve around overstepping its juridical powers as the supreme appellate court, interfering in and pressurising investigations in what appears to be a pre-determined direction, and consciously or inadvertently producing an impression of bias against the government. These are very serious charges, and invite questions about the conduct of the court. There is no denying that disquiet has been growing about the manner and direction in which the SC appears to be moving. Some legal minds are even of the opinion that the court is veering towards judicial tyranny. Be that as it may, we have been arguing in this space for a long time that the SC must not only do justice (without the heavens necessarily falling), but also be seen to be doing justice. An overbearing posture or intervention in areas beyond the purview of the court has the unintended effect of bringing the court under a cloud of suspicion and controversy, something undesirable for the judiciary. That is precisely why we have been advising the court to exercise the time-honoured principle of judicial restraint, to avoid precisely these kinds of allegations and accusations. We hope His Lordships will take account of this advice, without flinching from doing what is right and just, but ensuring that no damage accrues to their respect and dignity.