Thursday December 02, 2021

New parliamentary panel for consensus legislation: Empowering accountability courts to grant bail to NAB accused on the cards

July 25, 2020

ISLAMABAD: As the just-constituted bipartisan parliamentary committee mulls to do legislation unanimously, it will also take into account empowering the accountability courts to grant bail, recommended by superior courts, to the accused arraigned by the National Accountability Bureau (NAB) apart from other amendments in this law.

At the same time, placing restrictions on the NAB to liberally arrest the accused at will at the stage of complaint verification, inquiry of investigation of allegations is on the agenda, some members of the committee told The News.

“We will press that the recommendations made by the superior courts about changing the National Accountability Ordinance (NAO), 1999 to be incorporated in the new amendments,” one of them said.

He said that it would be emphasised that the landmark judgment of the apex court that it handed down while bailing out Khawaja Saad Rafique and Khawaja Salman Rafique should be kept in mind as the changes in the NAO will be considered. “This verdict is an indictment of the NAB in severest language.”

The Supreme Court has earlier held that the concept of bail to the NAB accused should be introduced in the NAO so that the superior courts should not have to use their constitutional powers to deal with such matters.

It 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.

The intention behind introduction of Section 9(b) of the NAO, which ousts 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, the judgment said.

Resultantly, it noted, the entire burden is being shouldered by high courts, which is an unnecessary drain on their precious time. It 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.

The apex court has further recommended revision of the unrealistic timeframe (30 days) for conclusion of a trial by an accountability court. Besides, the Islamabad High Court (IHC) has repeatedly held that there is no point in keeping the accused under arrest by the NAB, thus violating his constitutionally guaranteed fundamental rights during the investigation, when he is appearing before it and cooperating.

At another occasion, the Supreme Court ruled that if an appropriate amendment is not made to change the voluntary return provision of the NAO, it will give its ruling and it has jurisdiction to strike down any law, violating the Constitution. A crime cannot end through an administrative order and an offence cannot be abolished on approval of voluntary return, it said.

The new parliamentary panel has been formed as the government is keen to take the opposition on board to pass certain laws relating to the Financial Action Task Force (FATF), International Court of Justice (to give convicted Indian spy Kulbhushan Jadhav right to seek review and reconsideration of his sentence in high court) and some other proposed laws pending disposal since long.

Long time ago, the government and opposition had exchanged drafts of amendments to the NAB law, but the process stood severed due to lack of seriousness. There had been no contacts between the two sides for several months on the legislative agenda.

Among other amendments, the opposition wants drastic reduction in the physical remand period, separation of the prosecutor general’s office from that of the NAB chairman, and dilution of the powers of the NAB chief by forming a three-member committee also including the directors general of law and finance etc.