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Wednesday May 25, 2022

National Accountability (Amendment) Ordinance, 2021 promulgated

October 07, 2021

ISLAMABAD: President Dr Arif Alvi promulgated the National Accountability (Amendment) Ordinance, 2021 paving the way for continuation of the incumbent Chairman Justice (R) Javed Iqbal on the post till the appointment of the new chairman NAB.

According to the ordinance, the president will appoint the chairman of NAB in consultation with the prime minister and the leader of the opposition. Under the promulgated ordinance, the new NAB chairman will be appointed for a period of four years and his term may be extendable.

The method followed for the appointment of the NAB chairman will be the one employed while granting an extension.

The ordinance states that the president will appoint the NAB chairman in consultation with the prime minister and the opposition leader.

In case of failure to reach consensus on the appointment, the matter will be sent to a 12-member parliamentary committee formed especially for the matter of the appointment. Under the new ordinance, the president has the authority to establish as many accountability courts in the country, as he deems fit.

According to the ordinance, the procedure for reappointment of the chairman NAB will be the same, but the chairman NAB can be removed just like the judges of the Supreme Court, while the chairman NAB can send his resignation to the president.

As per the ordinance, all offenses will be non-bailable, only the accountability court will have the power to grant bail or release the accused. The ordinance said that the NAB accused would be able to get bail on deposit of money equal to the amount of corruption and the accountability court would hear the case on a daily basis.

Under the new ordinance, the chairman will file a reference in consultation with the NAB prosecutor general, while the reference can be filed in any accountability court across the country and the accountability court will be allowed modern technology to record evidence. Under the ordinance, judges to the accountability courts will be appointed for a three-year term.

According to the ordinance, the NAB law will not apply to federal, provincial and local taxation matters, and the decisions of the federal and provincial cabinets, committees and sub-committees will not fall under the purview of the NAB. The ordinance states that the decisions of the Council of Common Interests, NEC, NFC, ECNEC, CDWP, PDWP will also be outside the purview of NAB.

According to the ordinance, public or government plans regarding irregularities in the rules will also be outside the jurisdiction of the NAB.

The provisions of this ordinance shall not be applicable to the following persons or transactions, namely, all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation, decisions of Federal or Provincial Cabinet, their Committees or Sub-Committees, Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working Party (CDWP), Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP) and the State Bank of Pakistan.

It shall not apply on any person or entity who, or transaction in relation thereto, which are not directly or indirectly connected with the holder of a public office, procedural lapses in any public or governmental work, project or scheme, unless it is shown that a holder of public office or any other person has been conferred or has received any monetary or other material benefit from that particular public or governmental work, whether directly or indirectly on account of such procedural lapses, which the said recipient was otherwise not entitled to receive; an advice, report or opinion rendered or given by a public office holder or any other person in the course of his duty, unless there is sufficient evidence to show that the holder of public office or any other person received or gained any monetary or other material benefit, from that advice, report or opinion, whether directly or indirectly, which the said recipient was otherwise not entitled to receive.

Through the Amendment of Section 5, Ordinance XVIII of “Asset” includes all kinds of property owned, controlled by or belonging to an accused, whether directly or indirectly, or held as benami in the name of his spouse, relatives, associate, or any other person, whether within or outside Pakistan, which he cannot reasonably and lawfully account for;” (ii) clause (g) shall be substituted, namely:- “Court” means Accountability Court established under section 5A of the Ordinance;” and (iii) clause (h) shall be substituted, namely:- “Judge” means a Judge appointed or deemed to have been appointed under section 5A of this Ordinance;” (iv) in clause (p) after the word “all” the words “kinds of” shall be inserted.”

In the ordinance, for Section 5A, the following shall be substituted, namely:- "The President, in consultation with the Chief Justice of the Pakistan, shall establish as many Accountability Courts through out the country, as he may deem necessary, to try offences under this Ordinance.

According to ordinance, the Prosecutor General and Special Prosecutors shall render independent advice to the Chairman and shall ensure fair, consistent, uniform, non-discriminatory and expeditious prosecution of cases and in doing so shall protect and accord all lawful rights and interests of the accused persons.

Chairman NAB shall provide Investigation Report to the Prosecutor General and seek concurrence of the Prosecutor General for commencement or continuation of prosecution.

Through the Amendment of Section 9, Ordinance XVIII 1999, all offences under the ordinance shall be non-bailable and notwithstanding the provisions of sections 439, 491, 496, 497, 498, 498(a) and 561A of the code, no court other than the court under the Ordinance, shall have the power or the jurisdiction to grant bail to or otherwise release an accused person in a case triable by an Accountability Court. Provided where an accused person is released on bail, the amount of surety shall be fixed having regard to the gravity of the charge against such person and where the charge specifies any amount in respect of which the offence is alleged to have been committed, the surety amount shall not be less than the said amount.

In the section regarding the case management and trial of offences.—(a) Notwithstanding anything contained in any other law for the time being in force, an accused shall be prosecuted for an offence under this Ordinance in the court established under this Ordinance and the case shall be heard day to day and shall be disposed of within six months.

Another Section 33 F was inserted through ordinance in NAB laws according to which prior to filing of a reference, the chairman NAB, in consultation with the Prosecutor General, having regard to the totality of facts, circumstances and evidence, may partly, wholly, conditionally or unconditionally withdraw or terminate any proceedings under the ordinance, if such proceedings are unjustified.

After the filing of a reference, if the chairman NAB in consultation with the Prosecutor General, having regard to the totality of facts, circumstances and evidence is of the view that the reference is partly or wholly unjustified, he may recommend to the court where the matter is pending that the reference may partly or wholly be withdrawn or terminated, in which event the court shall pass appropriate orders. No action or claim by way of suit, prosecution, complaint or other civil or criminal proceedings shall lie against the Federal, Provincial or Local Government, the National Accountability Bureau or any of their officers and functionaries for any act or thing done or intended to be done in good faith pursuant to withdrawal or termination of cases under sub-sections (1) and (2).

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