ISLAMABAD: Another draft of amendments proposed by the Pakistan Muslim League-Nawaz (PML-N) and Pakistan People’s Party (PPP) in the National Accountability Bureau (NAB) law seeks deletion of the anti-graft watchdog’s sweeping powers relating to arrest, physical remand, freezing of under-investigation property and banning its transfer, willful default etc.
The draft further suggests removal from the National Accountability Ordinance (NAO), 1999 of offences like presumption against accused accepting illegal gratification and absconding to avoid service of warrants. These proposed amendments are contained in a comprehensive document, highlighted in four colours, which reviews each and every clause of the NAO. Its copy is exclusively available with The News.
The changes sponsored by the PPP through its legal wizard Farooq H Naek are highlighted in red; the modifications proposed by the Pakistan Muslim League-Nawaz (PML-N) in yellow, the amendments introduced by the government, which lapsed a few days back and which it wants to get passed from the parliament, in blue, and the original text of the NAO in black.
When contacted, Naek confirmed to The News that the PML-N shared with him the draft of changes sometime back. He did not know what happened to this set of amendments later.
A senior PML-N leader said the document is with the government which will be the basis of future discussions between the two sides to reform the NAO. “We, the two major opposition parties, have also consulted with our allies.”
Not only he but some other top PML-N leaders this correspondent spoke to expressed ignorance about the draft of amendments prepared by their senior vice president Shahid Khaqan Abbasi, a business tycoon, who was arrested by the NAB in an alleged money laundering case in Sept last year and bailed out by the Sindh High Court in April this year, and a PPP leader and some others.
The PML-N leaders’ unawareness of this set of amendments apart, it is precisely the same draft that was leaked to TV channels in end-April. At the time, Federal Law Minister Dr Farogh Naseem and Special Assistant Shahzad Akbar discounted these proposals. Last year, another draft of amendments had also transpired.
The PML-N stalwarts said that their party recommended the amendments in the shape of the instant draft on the direction and under supervision of deposed prime minister Nawaz Sharif after the government and opposition agreed to start the process of modifying the NAO. “Sometime back, the two sides agreed during Speaker Asad Qaiser chaired deliberations, which were attended by Ayaz Sadiq, Rana Tanveer Hussain, Sherry Rehman, Raja Pervez Ashraf, Asad Umar, Azam Swati, Ali Muhammad Khan, Farogh Naseem and some others,” PML-N parliamentary leader in the National Assembly Khawaja M Asif, who was part of this discussion, told The News. “After that, the PML-N and PPP in consultation with the other opposition parties started drafting amendments.”
Nawaz Sharif assigned Ishaq Dar the job of preparing the changes in consultation with top lawyers including Khawaja Haris, Azam Nazir Tarar and Amjad Pervez, in light of the judgments of the Supreme Court and Islamabad High Court and findings of the Council of Islamic Ideology on the NAB law.
Shahid Khaqan Abbasi and Ahsan Iqbal, who were in jail at the time, were frequently consulted and taken on board about these amendments.
A study of this new draft and the leaked document shows that some of the provisions of the two papers are same while there are also a number of different clauses. While significantly amending Section 15 (disqualification to contest elections or to hold public office) of the NAO, the PML-N proposed in the new draft that a public officeholder convicted of the offence of corruption and corrupt practices and his abettor, shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified from being a public officeholder, for a period of five years, to commence from the date he is released after serving the sentence.
If such person is in the service of Pakistan or any autonomous body, organisation, institution, undertaking, concern or establishment controlled or administered by or under the federal government, he shall forthwith stand dismissed from service without any pecuniary benefits, and further shall stand disqualified from being a public officeholder for a period of five years, to commence from the date he is released after serving the sentence.
However, a public officeholder or any other person who has availed of provisions of plea bargain or voluntary return shall also be deemed to have been convicted for an offence, and shall forthwith cease to public officeholder, if any, held by him or dismissed from service without pecuniary benefits as the case may be and further he shall stand disqualified from being a public officeholder for a period of ten five years, to be reckoned from the date he deposits the assets or gains determined by the court.
The leaked draft said the public officeholder will cease to hold public office on conviction after the appeal process against his sentence has been exhausted, and he will not cease to hold office forthwith after the conviction by the accountability court.
Both drafts add a similar clause (section 38) at the end of the NAO. It says all orders, judgments and sentences passed under the NAO which have become final and in respect of which no proceedings are pending in any court as on the date of passing of this Act, shall, notwithstanding the provisions of this Act and amendments made in the NAO through this Act, be deemed to have been validly made and passed. All other matters and proceedings under or arising from the NAO pending on the date of this Act, shall be dealt with in accordance with the provisions of the NAO as amended by this Act.
The elaborate powers of the NAB chairman to order arrest and accountability court’s grant of repeated physical remand for ninety days, specified in Section 24 of the NAO, have been scrapped in the PPP’s proposed amendment and it has been left to accountability court where a reference will be filed to issue summons or a warrant for arrest, as it deems fit. The PML-N concurred to the change.
The leaked document provided for one-time 14-day physical remand of the accused by accountability court to which a reference has been sent for trial, which may issue process in terms of Section 91 of the Code of Criminal Procedure (CrPC).
The new document erases willful default as an offence under the NAO. By amending Section 12 of the NAO, it also takes away the NAB chairman’s power to freeze property of an accused and gives it to court, trying the accused. If there appears reasonable grounds for believing that he has committed such an offence, it may order the freezing of his property or part thereof, whether in his possession or in the possession of any other person (relative, associate or deleted) on his behalf, if it is satisfied, after giving the accused an opportunity of being heard.
The leaked draft provided that during the course of an inquiry/investigation the property moveable or immoveable shall not be placed under any caution or restraint unless the same is sanctioned by the court of competent jurisdiction. The court shall not pass any order without issuing a notice and providing an opportunity of hearing to the affected person.
Where the court deems appropriate, it may instead of passing an order of freezing, direct the accused, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, such property or the value of the same, and in case of attachment of bank accounts, the court shall allow withdrawal of such amounts to meet legitimate expenses of the accused.
Both the PPP and PML-N unanimously removed from the NAO the entire Section 14 dealing with presumption against accused accepting illegal gratification.
The two drafts do away with the NAB chairman’s power (mentioned in Section 16A) to seek transfer of any case pending in any court of law or tribunal to an accountability court of one province to another province.
The PPP and PML-N proposed that the accused may also seek such transfer of a case. The amendment says the Prosecutor General or a Special Prosecutor authorised by him or the accused may, in the interest of justice and having regard to the facts and circumstances of the case including the protection and safety of witnesses and general convenience of the parties, apply to the Supreme Court for transfer of a case from a court in a province or to a court in another province; or to the high court of the province for transfer from one court in a province to another court in the same province, and these courts may order such transfer.
Another addition is that the prosecutor general will appoint special prosecutors on the recommendation of the Federal Public Service Commission (FPSC) after competitive examinations held by it.
The new draft deletes Section 23 that prohibits transfer of property by an accused, who is under investigation of the NAB, or any relative or associate of such accused person or any other person on his behalf. It also removes from the NAB law Section 31A that declares absconding to avoid service of warrants issued by the NAB an offence.
The new draft, while adding a proviso to Section 36 that deals with the indemnity of the NAB from prosecution for performing its functions and actions, allows legal proceedings in respect of malicious prosecution or defamation that may be instituted by the public officeholder or alleged abettor against whom allegations of corruption and corrupt practices are found to be baseless after inquiry and investigation or after trial.
The leaked draft provided that any person may file a complaint or bring a suit against any NAB officer for physical torture or harassment caused by him or for falsely implicating any person, exaggerating or fabricating charges or evidence in the matter.
The two drafts dispense with the NAB chairman’s powers to appoint officers and staff given in Section 28 and bring this authority under the rules to be framed by the NAB in consultation with the FPSC.
The new document says about the voluntary return that if the NAB chairman refuses to accept the offer, the concerned public officeholder or other person may submit it directly to court for consideration and approval subject to such terms and conditions as it may deem fit to impose. Such officeholder shall be deemed to have been convicted of the offence of corruption and corrupt practices and shall stand disqualified from being a public officeholder for a period of five years, to be reckoned from the date he has made the deposit.
Another proposed amendment sought to be inserted in Section 19 says any notice issued by the NAB calling for information will contain the details of the offence, name of the accused person, and particulars of the document or thing relating to the offence and the accused having nexus with the inquiry and investigation, which is required to be produced or delivered in pursuance of the notice.
The power of the accountability court to dispense with any provision of the CrPC in certain cases has been taken out.
