FeaturedNationalVOLUME 15 ISSUE # 07

The “C” class NAB amendment

The government has made a cosmetic change in the National Accountability Bureau (NAB) law, under which people facing charges of corruption worth Rs50 million or more would only be entitled to be detained in “C” class jails. The only amendment not only ignores the earlier commitment of the government to remove flaws in the law but also observations of the Supreme Court of Pakistan to make the accountability process more effective and fair.
The new development is shocking because the government had promised to reform the NAB law in lengthy deliberation with the opposition after the Supreme Court of Pakistan pointed out flaws in the legislation. Altering the NAB law, at least four fundamental amendments proposed by the Supreme Court of Pakistan have been ignored.
The NAB has always faced criticism for discretionary powers of its chairman to arrest an accused. It is his discretion whether he arrests an accused during interrogations or not. Some accused are arrested when a probe starts against them. Others are not arrested till the completion of investigations. The opposition believes the NAB is using the flaw in the law to target its members. The government should have removed the discrepancy to make the accountability process fairer.
The NAB law on voluntary return has also been a butt of criticism by superior courts. A three-judge Supreme Court bench, while hearing a case for interpretation of the Section 25-A of the NAB law, which empowers the NAB chairman to accept voluntary return from an accused, who is even allowed to continue his job without departmental proceedings, had ruled that if an appropriate amendment was not made, the apex court would give its ruling and it had jurisdiction to strike down any law, violating the Constitution. The court observed that a crime could not end through an administrative order and an offence could not be abolished on approval of voluntary return. Sometime back, a bill proposing amendments to the NAB law was also introduced in the Senate by former Law Minister Farooq H Naek, which recommended that plea bargain and voluntary return be made in line with modern jurisprudence of the superior courts.
Bail in NAB cases has also been an issue. In a judgment, Pakistan Chief Justice Asif Saeed Khosa recommended that the legislature should consider amending the NAB law appropriately so as to enable an accused person to apply for bail before the relevant accountability court in the first instance. Obviously, the accused have to approach a High Court and subsequently the Supreme Court. He observed that the intention behind the introduction of the Section 9(b) of the National Accountability Ordinance (NAO), which ousted the jurisdiction of the superior courts regarding grant of bail, already stood neutralised due to opening of the door for bail through exercise of constitutional jurisdiction of a High Court. Resultantly, the top judge noted, the entire burden was being shouldered by the High Courts, which was an unnecessary drain on their precious time. He said that the High Courts and the Supreme Court had always felt difficulty in adjusting the requirements of “without lawful authority” and “of no legal effect” relevant to a writ of certiorari (Article 199(1)(a)(ii) of the Constitution) with the requirements of bail provided in Section 497 of the Criminal Procedure Code. Justice Khosa also recommended a revision of the unrealistic timeframe (thirty days) for the conclusion of a trial by an accountability court as specified in the Section 16(a). It has never happened that an accountability court decided a reference within thirty days.
In the amended NAB Ordinance, the government has reneged on it promises to empower trial accountability courts to grant pre- and post-arrest bail. The law minister had promised that an accused would be released on bail if an inquiry under the NAB law was not concluded within three months. Another change pertained to plea bargain and voluntary return. He said that plea bargain and voluntary return would lead to disqualification of a public office holder to hold office or employment for a period of 10 years or any other period. Other amendments included in the official draft were: private citizens or entities, which are directly and indirectly unconnected with a public office holder, will be excluded from the purview of the NAB law; civil servants’ lapses will not be categorised as offences and the NAB would not take cognizance of offences based on procedural slips unless there is evidence corroborating that the officer has materially benefited from such a decision or lapse; an underlying criminal intent and action resulting in an illegal or unjustifiable increase in the assets of a government servant will be cognizable; and a bureaucrat’s assets will not be frozen solely on account of a belief that he committed an offence and his property would be frozen once the officer has been convicted by the court etc.
The sole amendment, which provides for “C” class in jail to the accused, facing corruption charges worth Rs50 million or more, will hit mainly opposition politicians. Under the new change, the accused would be lodged in C class jail even during an inquiry and investigation by the NAB, and judicial trial. The selective amendment to the law, while many controversial clauses remain in place, has raised concern that the government is only interested in amendments that affect its political opponents. The only change will not make the accountability law more effective in any way. The government should include superior court judgments and proposals by the opposition in the new law to ensure fair and across-the-board accountability in the country. It will also improve its image among the public.