NationalVOLUME 17 ISSUE # 5

New NAB ordinance

The government has promulgated the National Accountability Bureau (Amendment) Ordinance, 2021, which allows the current NAB chairman to continue in office until a consensus is reached on the appointment of his successor. In this way, the government has not only avoided consultation with the leader of the opposition but also paved the way for a possible four-year extension to the anti-graft body chief.

The government has also amended the NAB ordinance to meet the long-standing demand of bureaucrats and technocrats, who become cabinet members in every government, to take them out of the NAB purview. Fearing the NAB, bureaucrats have been reluctant to implement the orders of the executive which costs the country millions of dollars every year. Under the ordinance, the government has also drastically cut the powers of the anti-graft body and it will no longer be able to act against the decisions of the federal and provincial governments, Council of Common Interests, National Finance Commission, Executive Committee of the National Economic Council, central, provincial and departmental development working parties and the State Bank of Pakistan.

The ordinance enables the President to reappoint the current NAB chairman or extend his tenure, while sharply curtailing the jurisdiction of the anti-graft watchdog. The tenure of the NAB chairman can now be extended which was earlier “non-extendable.” However, it has retained the proviso that makes consultation between the opposition leader and the leader of the house in the National Assembly on the appointment of the NAB chairman, but states that the President would consult both of them. In this way, the role of the opposition and parliamentary oversight has been enhanced as it provides a forum of a 12-member parliamentary committee in case the consultation between the Prime Minister and the opposition leader remains inconclusive.

According to the ordinance, “all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation” will be dealt with in accordance with the revenue or banking laws and would be transferred from the accountability courts to the courts of competent jurisdiction. Moreover, the NAB cannot proceed against “any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office…procedural lapses in any public or governmental work, project or scheme, unless it is shown that a holder of public office or any other person has been conferred or has received any monetary or other material benefit from that particular public or governmental work”. The authority of the NAB prosecutor general has been enhanced, empowering him to play a crucial role in advising the chairman to file or withdraw any reference from courts. It also allows the accountability courts to grant bail to accused. Earlier, there was no provision of granting bail to the accused as an under custody suspect could only apply for bail after the expiry of his 90-day remand and that too under the extraordinary jurisdiction of the high court under the Article 199 of the Constitution that empowers the high courts to enforce fundamental rights. The ordinance allows the appointment of retired judges of high courts as accountability court judges. In addition, it provides that a district and sessions judge and an additional district and sessions judge may also be designated as the judges of accountability courts with the consent of the chief justice of the high court concerned.

The government claims the amendments have been made in the light of court judgments and longstanding demands of the bureaucracy, while the opposition believes the changes aim at saving cabinet ministers from possible NAB action for their alleged corruption. Apparently, the government has promulgated the ordinance to stop the NAB from becoming nonfunctional after the retirement of the current NAB chairman. Under the law, the new NAB chairman can only be appointed through consultation between the Prime Minister and the opposition leader in the National Assembly. Prime Minister Imran Khan had refused to consult opposition leader Shehbaz Sharif, as the latter is facing many corruption cases. However, if the Prime Minister can consult the opposition leader on the appointment of members of the Election Commission of Pakistan (ECP), he should also have consulted him on the appointment of the NAB chief.

However, even if Prime Minister Imran Khan had contacted opposition leader Shehbaz Sharif, they would not have reached a consensus on the issue. In any case, the issue could not have been resolved amicably and the government would have to bring an ordinance to allow the NAB and its chief to continue working. It is a fact that the opposition, whose leaders are facing serious corruption cases, wants to defang the NAB. They have tried their best to malign the accountability process. They will not spare the new NAB chief either. On the other hand, Prime Minister Imran Khan has never been satisfied with the NAB performance. The common people also believe it has failed to recover looted wealth in all high-profile cases.

The NAB and its chief are often criticised by courts and the opposition over their plea bargain and arrest powers. A plea bargain cannot be made without the approval of the court. The government has also curtailed the powers of the NAB chief to arrest the accused. Earlier, it was his discretion to arrest an accused or not during an investigation, which created an impression of bias and foul play. Accountability courts can also accept bail pleas of the accused, which was not allowed under the old NAB law. One thinks the government has removed all lacunae from the accountability law, which were identified by courts and the bureaucracy and even the opposition, though it should have adopted the right way of tabling a bill in the National Assembly and the Senate.