Draft ordinance deletes draconian powers from NAB law

ISLAMABAD: A draft ordinance, which the government disowned after it was partially aired by TV channels, takes away draconian powers of the National Accountability Bureau (NAB), its chairman and other officials,writes Tariq Butt.

Regardless of the government’s stand, a reading of the paper leaves no doubt that it has been prepared by a professional draftsman, who knows the National Accountability Ordinance (NAO) and how laws are written. Last year also, a draft ordinance, drastically changing the NAO, was publicly released precisely in the same manner. The government had discarded it as well.

“We have no knowledge of what has been broadcast by TV channels. The government has not so far discussed any such thing with us,” former National Assembly Speaker and senior Pakistan Muslim League-Nawaz (PML-N) leader Sardar Ayaz Sadiq remarked to The News when contacted.

However, a cabinet member told him on Wednesday in a meeting of a parliamentary panel that the government will first discuss the new NAB ordinance with its allies and then share it with the opposition parties next week.

“We will shortly give the drafts of different laws to the opposition for their input,” the cabinet member was quoted as saying. Adviser to the Prime Minister on Parliamentary Affairs Babar Awan is keen to get the fate of 39 government bills pending disposal in Parliament decided without any delay. He wants to discuss these pieces of legislation with the opposition so that they sail through Parliament.

A glance at the instant draft that amends the NAO, 1999 throws up a number of widely-demanded provisions that are meant to make the NAB law a normal and rational piece of legislation instead of an unprecedentedly cruel statute. It contains the provisions of a lapsed ordinance relating to certain immunity provided to bureaucrats, businessmen and public officeholders and taxation matters.

The new draft says all other matters and proceedings under or arising from the NAO pending on the date of the present ordinance shall be dealt with in accordance with the NAO provisions as now amended. However, any person may file a complaint or bring a suit against any NAB officer for physical torture or harassment.

No NAB official, in any capacity, shall make any statement in public or to the media regarding persons involved in any inquiry or investigation conducted by NAB until a reference has been filed against them. Whoever contravenes this provision shall be punished with imprisonment for a term which may extend to one year but shall not be less than one month in any case and a fine of Rs100,000.

The draft says benamidar means any person who holds property for the immediate or future benefit, direct or indirect, of another person who has provided the consideration except when the property is held by a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, agent or legal adviser and any person who is the spouse, child, brother, sister or lineal ascendant or descendent or an individual appearing as joint owner of property of the person who has provided the consideration.

Dependent means a person who receives support from another person for assets and expenditure.

Where a person committing an offence in a company or other body corporate, every person who, at the time the offence was committed, was responsible for such an offence shall be guilty of it and liable to be proceeded against and be punished accordingly. Provided that nothing contained in this section shall render any such person liable to punishment if he proves that the offence took place without his knowledge or that he exercised all due diligence to prevent it.

An accused shall be prosecuted for an offence under the NAO in the accountability court and the case shall be heard and disposed of within thirty days. Provided that trial shall commence immediately after filing of the reference by NAB, which shall be not later than two weeks after finalisation of the investigation.

The NAB shall file only one reference, which shall be treated as final, and no supplementary reference shall be submitted thereafter.

A public officeholder shall be tried by a court in a province from which he was elected and a person in the service of Pakistan or any statutory body or organisation shall be tried in a province where his place of duty is or was located at the time of commission of the offence: Provided that if two or more persons of any category are jointly accused in a case, the trial shall be held in a province from where the public officeholder was elected.

The NAB will not file any reference or conduct any inquiry or investigation into past and closed transactions after lapse of 5 years from the date of the transaction.

The NAB shall not initiate action on allegations contained in a complaint, which is anonymous or pseudonymous; or which do not involve public money; or in which the amount involved is less than Rs400 million; or which, under the provisions of any law for the time being in force, cannot be investigated due to lapse of time or relate to a period for which records need not be maintained by the holder of public office; or which relate to the business of government-controlled companies for which regulatory provisions exist in their parent statutes or any other law for the time being in force, including the Securities and Exchange Commission of Pakistan Act, 1997; or which relate to decisions of a duly notified official committee at the ministerial level on matters falling within its purview.

If a person under investigation for an offence is called to provide information, he shall be informed that he is an accused person, and such person shall, if he so wishes, be entitled to have an advocate present during any interrogation conducted by NAB. However, the accused person shall be informed of the allegations against him, and any officer of NAB shall only ask for such information from the accused that pertains to the allegations.

While the power to arrest has been taken back by the new ordinance, the court to which a reference has been sent for trial may issue summons or a warrant for arrest, as it deems fit, for causing the accused to be brought or to appear at a certain time before such court, which may require him to execute a bond, with or without sureties for his appearance in such court and in case the accused who has executed a bond does not so appear before such court, the officer presiding such court may issue warrant directing that such person be arrested and produced before him.

Where, at any time, during enquiry or after the authorisation of investigation, before or after the commencement of the trial or during the pendency of an appeal, the public officeholder or any other person offers to return to the NAB the assets or gains acquired or made by him in the course, or as a consequence, of any offence under NAO, the NAB chairman, may, in his discretion, after taking into consideration the facts and circumstances of the case, accept the offer on such terms and conditions as he may consider necessary, and if the public officeholder or any other person agrees to return to the NAB the amount determined by the chairman, who shall then refer the case for the approval of the court, or as the case may be, the appellate court and for the release of the public officeholder or any other person.

Where a public officeholder or any other person, during enquiry voluntarily comes forward and offers to return the assets or gain acquired or made by him in the course, or as a consequence of any offence under NAO, such a person shall cease to hold public office forthwith and shall stand disqualified for a period of five years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen appointed or nominated a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province.

The NAB Prosecutor General shall be appointed by the President in consultation with the Leader of the House and the Leader of the Opposition in the National Assembly.

The court trying an accused for any offence as specified under the NAO, may, at any time, if there appears reasonable grounds for believing that the accused has committed such an offence and the property in question is an outcome of the same, the court may order attachment of such property or part thereof, whether in his possession or in the possession of any person on his behalf, if it is satisfied, after giving the accused an opportunity of being heard, that the accused with intent to obstruct or delay implementation of any order that may be passed against him.