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Tuesday March 19, 2024

Justice Khosa recommends bail facility in NAB law

By Tariq Butt
January 15, 2019

ISLAMABAD: Justice Asif Saeed Khosa, who will be sworn in as the chief justice of Pakistan on January 18, has underlined for the second time in two months incorporation in the National Accountability Ordinance (NAO) of bail facility to the accused persons, arraigned by the anti-graft watchdog. “The concept of bail should be introduced in NAO so that we [superior courts] should not have to use their constitutional powers [to deal with such bail matters],” Justice Khosa remarked on Monday while being part of a five-member bench headed by Chief Justice Mian Saqib Nisar.

The panel heard and dismissed the appeal of the National Accountability Bureau (NAB), seeking cancellation of the bails of ousted prime minister Nawaz Sharif and his daughter Maryam granted by the Islamabad High Court (IHC) against the judgment of an accountability court of Islamabad in the London apartments’ reference. Justice Khosa’s observation may infuse a sense of urgency in the government to amend the NAO without further delay so that the NAB accused persons can apply for bail to the accountability courts instead of approaching high courts.

In mid-November last year, Justice Khosa, who had authored the judgment of the three-member bench led by the chief justice, had suggested that in the changed scenario, the legislature may, if so advised, consider amending the NAO appropriately so as to enable an accused person to apply for bail before the relevant accountability court in the first instance.

He also wrote that the intention behind introduction of Section 9(b) of the NAO, which ousts 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 judge noted, the entire burden is being shouldered by the high courts, which is 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. Another amendment recommended by Justice Khosa in the same verdict related to revision of the unrealistic timeframe [thirty days] for conclusion of a trial as specified in Section 16(a). It has never happened that an accountability court decided a reference within thirty days.

Another three-judge bench, headed by Justice Sheikh Azmat Saeed, has stated that if the appropriate amendment [to change the voluntary return (VR) clause] is not done by February this year, the court will give its ruling and it has jurisdiction to strike down any law, violating the Constitution. The panel heard a case for interpretation of Section 25-A of the NAO, which empowers the NAB chairman to accept VR from an accused, who is even permitted to continue his job without departmental proceedings.

Justice Azmat Saeed said a crime cannot end through an administrative order and cannot be abolished on approval of VR. He said that the NAB writes letters to the accused persons regarding VRs after initiating inquiries.

During its talks with the opposition parties, the government has shown keenness to make the three amendments in the NAO relating to the provision of bail facility to the accused, revision of the unreasonable time period of trial by an accountability court and VR. The other side has agreed to these changes but wants more amendments like drastic reduction in the physical remand period, separation of the prosecutor general’s office from that of the NAB chairman, dilution of the powers of the NAB chief by forming a three-member committee also including the directors general of law and finance etc. However, the government is hesitant to provide to the opposition a package of amendments.

Legal experts say the Parliament and government have no option but to enact the amendments suggested by the Supreme Court. “Such recommendations and suggestions can’t be taken lightly,” said one of them. A number of rounds of talks have been held between the senior representatives of the government and opposition to reach an agreement on the amendments in the NAO and other laws, but a consensus is still not in sight. “We are still waiting for the complete package,” former Speaker Sardar Ayaz Sadiq, who is a key negotiator of the opposition, told The News.