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July 27, 2020

Govt-opposition talks on NAB law amendments: Legal experts highlight draconian defects, recommend their deletion now


July 27, 2020

ISLAMABAD: As the government and opposition interlocutors engage in presumably serious talks to change the National Accountability Bureau (NAB) law, top legal experts have identified the multiple grave shortcomings, deficiencies and flaws in the statute that need to be corrected during these negotiations.

They say the National Accountability Ordinance (NAO), 1999 has to be conformed to the human rights, human dignity and UN charter against corruption. They propose to excise its draconian provisions to make it a normal law that is effective to curb corruption.

Noted lawyer Kashif Malik told The News that the physical remand period of the NAB accused has to be drastically curtailed. The entire judicial system of accountability is required to be changed as mere amending the NAO would not suffice, he said.

Prominent lawyer and former NAB special prosecutor Imran Shafiq told this correspondent that there are a number of NAO provisions that should be considerably amended. He said that several judgments of the Supreme Court and high courts of Islamabad and Lahore provide landmark guidelines to lawmakers to bring about fundamental changes in the law. He said he has seen the latest leaked draft of amendments, which is the replica of a lapsed ordinance except a new clause that seeks extension in the tenure of the NAB chairman.

According to it, it has to be proved that anybody accused of misuse of authority accrued any financial benefit and his assets swelled in disproportionate to his known sources of income, he said.

Imran Shafiq said the appointment of a retired superior court judge, ex-bureaucrat or former army general as the NAB chairman was provided in the NAB law so that anybody at this age would not have financial greed or lust that people of lower age groups may have. Thus, the NAO envisaged that such a nominee would be independent and impartial and a man of integrity public at large has faith in him, the former prosecutor said and added that there would be a serious attack on the independence of such an individual if he was lured into extension in his term.

He said that the NAB chairman’s authority to order arrest of an accused should be dispensed with. The concentration of powers in one man – the NAB chief – has to be done away with for transparency and nonpartisanship. It should be institutionalized.

Imran Shafiq said that the accountability courts should be entrusted with the authority to grant bail. The ouster of jurisdiction of all courts to give bail should be scrapped, he suggested.

The former prosecutor said the superior courts have recommended guidelines for plea bargain but no legislation has been done to the effect. He said that the “mega corruption” for whose eradication the NAB was created has to be defined. He believed that there were only a few dozens of references among over 1200 cases that fall in the category of mega corruption. He said the NAB has taken up umpteen cases in which not much corruption was involved. Thus, the courts have been unnecessarily burdened with a heavy workload, he said. The definition of mega corruption is a void in the NAO that has to be removed. The former NAB prosecutor said that it was illogical to expect the conclusion of trial of a reference in the accountability court within 30 days. It is an unrealistic timeline that needs to be changed.

Imran Shafiq said there was a lot of overlapping jurisdiction as the NAB continues to pose nose in the functions of other institutions like the Federal Investigation Agency (FIA), Anti-Corruption Establishments (ACEs), Security Exchange Commission of Pakistan (SECP) etc., which should be allowed to work as per their respective laws.

He said that the provision relating to pardon should be defined particularly the evidence and burden of proof in such cases. The investigation and prosecution should be significantly improved, and where mala fide is proved, the accused should be empowered to prosecute the NAB officers. The former prosecutor said that one-sided, highly politicized actions by the NAB have to be given up to make the accountability process credible and acceptable. At every stage, human rights and dignity has to be kept in mind.

Kashif Malik said the discretionary power of the NAB chairman through which he can order arrest of some accused and did not direct detention of others must be taken out of the statute. He opposed the plea bargain and said the NAB can’t be empowered to recover, say, 70pc of the alleged looted money and waive off the remaining 30pc.

He said that the NAB’s power to take any case from any other agency that is investigating it should be cancelled. The parallel jurisdiction is doing no good to the accountability system but has established that anybody who is to be punished is arraigned by the NAB, he said.

Kashif Malik suggested that there should be specialised accountability judges and prosecutors, who should be given better emoluments to deal with white collar crimes. Citing an instance, he said, dismissed judge Arshad Malik was presiding over the labour court before he was made the accountability judge.

The lawyer said many references filed by the NAB may have been based on real corruption but the way they have been prepared, fought in judicial forums and decided leaves much to be desired. Solid measures must be taken to end the NAB’s role of political engineering, he said. He said neither the prosecutors nor investigators or judges were trained to handle the white collar cases. Therefore, he said, the entire system requires overhauling. He recommended that the accountability judges should be inducted through a specialized examination.