Wednesday December 01, 2021

Experts: NAB law amendments a combination of good, harsh provisions

October 18, 2021
Experts: NAB law amendments a combination of good, harsh provisions

ISLAMABAD: The amendments made in the National Accountability Bureau (NAB) law through a presidential ordinance are a mix of good, harsh and controversial provisions, prone to much confusion.

Eminent constitutional expert Wasim Sajjad explained to The News that giving accountability courts the power to grant bail was a fair amendment but attaching the condition of a surety bond equivalent to the alleged corruption amount was unjust.

“It is always the discretion of the relevant court to fix the surety money. But in the present case, a legislative order through a presidential ordinance has been given to it to follow,” he said. “Courts determine a reasonable surety bond amount while granting bail. This amendment can be called into question and can be struck down by a superior court.”

Another legal expert Senator Kamran Murtaza told The News that the judgments of superior courts which were in the field, have held that an excessive amount of bail was denial of the facility to the accused. “An accused can argue about how he can mobilise such a huge amount, which he has been alleged to have got through corruption that is yet to be proven.” Wasim Sajjad said the exclusion of bureaucrats and businessmen from the purview of the NAB law was a good amendment.

“The principle is that if there is a procedural lapse but the person accused of it has not got any monetary benefit, he should not be arraigned under the NAB law as he has not committed any offence. In the rental power projects case, the allegation is that a summary was sent but no financial gains were involved.”

He said the confusion in the amendments pertained to the wrapping up or transfer of cases which were being heard by the accountability courts. “The amendments are silent as to who will decide that the cases which are being heard are not in fact made out. Nothing has been written in the amendments.”

Wasim Sajjad said if an accountability court judge transfers a case to an ordinary court, as was done in Islamabad the other day, he was in reality not authorised to do so because he can’t hear it as the amendments have taken it out of his jurisdiction. “When you can’t proceed with the case, how can you transfer it to another court because the case doesn’t exist under the amendments?”

According to the amendments, after the ordinance comes into force, all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions mentioned in sub-section (2), shall stand transferred to the concerned authorities, departments and courts under the respective laws, as the case may be. Apparently, this provides for automatic action without the involvement of the judges of the accountability courts.

The constitutional lawyer said the provision related to day-to-day hearing was harsh as it would put immense pressure on the lawyers engaged by the accused person. He said the advocates must read a lot of documents, which requires time, while they also have other professional business to dispose of. “Day-to-day hearings may lead to injustice.” Earlier, the NAB law provided that an accountability court should decide a case within 30 days. Now, this period has been extended to six months. Wasim Sajjad said that the cases pertaining to fraud, private persons and businesses and housing societies have been taken out of the domain of the NAB law. If no government agency or public office holder is involved in such dealings, the NAB law has nothing to do with them under the amendments, he said, and added that if an official was involved in getting a bribe in such processes, the case would be covered by the NAB law.

He said that the amendment relating to the NAB chairman’s tenure was not a constitutional provision but is contained in an ordinary law. An interesting challenge can come to this amendment on the ground that it is person-specific, he said. “It could be argued that while keeping the chairman in office till the appointment of his replacement, the consultative process between the leaders of the house and opposition has been excluded.”

Kamran Murtaza said that the amendments have given an NRO to the decisions of the federal and provincial cabinets and a host of other decision-making bodies. He said that the change pertaining to the NAB chairman was person-specific and could be shot down by a superior court for this reason, because no law can be made for any particular person.

He pointed out that the amendments created discrimination between the public officeholders and other persons. If a public officeholder commits a crime, he will be tried in an accountability court, but if it was committed by the other category, he would face an ordinary court, he said, and asserted that this was not allowed under Article 25 of the Constitution.

When contacted, renowned constitutional expert, former president of the Supreme Court Bar Association and Pakistan Tehreek-e-Insaf (PTI) Senator Syed Ali Zafar told The News that the NAB law amendments contained some excellent provisions.

Summing them up, he listed at least four positive amendments. One, a lacuna in the NAB law has been dispensed with, which related to the office of the NAB chairman remaining vacant till the appointment of his replacement. Now, he will continue till the consultation process is completed and a new chairman will be named.

Two, the provision of the parliamentary committee having equal representation of the government and the opposition has been inserted in the NAB law. In case the prime minister and the opposition fail to reach a consensus, the matter will be referred to this forum. The Constitution already provides for such a body for the appointment of the superior court judges and the chief election commissioner and members of the Election Commission of Pakistan.

Three, bureaucrats have been taken out of the purview of the NAB law as the officers were not signing files due to the fear that they would be caught by NAB. Four, the consultation process between the prime minister and the opposition leader has been kept intact. This ensures that the two sides of the parliamentary divide are involved in this key selection.

Ali Zafar pointed out that empowering the accountability court to grant bail was another good amendment but the attachment of a surety bond equal to the amount of the alleged corruption money was not good. It amounts to giving something with one hand and taking it back with the other, he said.

The expert said that the existing procedure governing the trial proceedings was as per the time-tested law, the Criminal Procedure Code and there was no need to change it and provide for the use of technology and the use of video. He stated he had objected to this but in vain and said that some mistakes in the amendments required to be corrected.