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Lonely amendment to NAB law: SC recommended changes, official proposals missing from presidential ordinance

November 07, 2019

ISLAMABAD: An ordinance, signed by President Dr Arif Alvi, which amends the National Accountability Bureau (NAB) law, has disregarded almost the entire package of changes that Federal Law Minister Dr Farogh Naseem had publicly floated in August, announcing that it would be enacted through a presidential decree.

The sole amendment, which provides for “C” class in jail to the accused, facing corruption charges worth Rs50 million or more, will hit the anti-government politicians, among others. Under the new change, such accused persons would be lodged in C-class even during inquiry and investigation by the NAB, and judicial trial.

“No plausible justification has been given for introducing the solitary amendment that will hardly have any impact on curbing corruption,” prominent lawyer Barrister Omar Sajjad told The News.

The law minister belied the impression that the ordinance was persons-specific and had been introduced only to directly target the top leaders of the two opposition parties who were facing charges framed by the NAB.

When contacted prominent Pakistan Tehreek-e-Insaf (PTI) leader and one of the official spokesmen Sadaqat Abbasi told The News that the amendment now introduced changes at least eight different laws to implement it. He said other amendments to the NAB law may be made at a later stage.

While altering the NAB law, at least four amendments proposed by the Supreme Court have also not been opted for. Justice Asif Saeed Khosa had recommended in a judgment in mid-November last that in the changed scenario, the legislature may, if so advised, 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 will go to the high court and subsequently to the Supreme Court, if he remains aggrieved in this connection.

He wrote that the intention behind introduction of Section 9(b) of the NAO, which ousted the jurisdiction of the superior courts regarding grant of bail, already stands 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 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.

Justice Khosa had also recommended revision of the unrealistic timeframe [thirty days] for conclusion of a trial by an accountability court as specified in Section 16(a). It has never happened that an accountability court decided a reference within thirty days.

A three-judge bench, while hearing a case for interpretation of Section 25-A of the NAB law, which empowers the NAB chairman to accept voluntary return (VR) from an accused, who is even allowed to continue his job without departmental proceedings, had ruled that if the appropriate amendment is not done, the apex court will give its ruling and it has jurisdiction to strike down any law, violating the Constitution. One of the judges had said a crime cannot end through an administrative order and an offence cannot be abolished on approval of VR. He had noted that the NAB writes letter to the accused persons regarding VR after initiating inquiries.

Omar Sajjad said when a superior court makes a recommendation to amend a certain law, it is binding on the government as well as Parliament to implement it.

Apart from paying no attention to the suggestions of the Supreme Court and the law minister’s own package of amendments, none of the changes proposed by the opposition parties during the talks, abandoned since long, with a government team, has been made now.

One of the amendments to the package publicly released by the law minister provided to empower trial accountability courts to grant pre- and post-arrest bail. It said an accused will be released on bail if an inquiry under the NAB law is not concluded within three months.

Another change pertained to plea bargain (PB) and VR. It said that the PB and VR will lead to disqualification of 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 will 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 will be frozen once the officer has been convicted by the court etc.

Sometime back, a bill proposing amendments to the NAB law was also introduced in the Senate by former law minister Farooq H Naek. It recommended that the concept of PB and VR be made in line with modern jurisprudence of the superior courts. It will be carried out through court and a person availing it would not contest election but would not be jailed. It also said that powers of arrest will be taken away from the NAB chairman/officials, who will not be authorised to order detention at all, let alone for 90 days. There is no need of custodial investigation as the probe can be carried out and a person can be questioned in the NAB office without being detained overnight. Custodial investigation is against freedom and right of life of a person.

The bill further said that people will be presumed innocent until proved guilty in cases of illegal gratification which is the cardinal principle of criminal jurisdiction and doctrine that a person is innocent until proved guilty; and only those public office holders will be prosecuted who have assets which are the outcome of corruption and corrupt practices and not otherwise.

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