Voluntary return: SC directs legislation on NAB chief’s power

Apex court to issue ruling if appropriate amendment not made

ISLAMABAD: The top court has given one month to the government for doing ‘appropriate’ legislation with regard to the National Accountability Bureau (NAB) chairman’s powers under the National Accountability Ordinance (NAO) 1999, to allow ‘voluntary return’ (VR) to a person involved in graft.

A three-judge Supreme Court bench, headed by Justice Sheikh Azmat Saeed, resumed on Thursday hearing of case related to interpretation of Section 25-A of the NAO, which empowers NAB chairman to accept VR from an accused, who is even allowed to continue his job without departmental proceedings.

The bench said if the appropriate amendment is not made then the apex court will give its ruling, adding that the Supreme Court has jurisdiction to strike down any law, violative of the Constitution.

Justice Sheikh Azmat Saeed said a crime/offence cannot be ended through administrative order. Likewise, the offence cannot be abolished on approval of the VR. The judge also noted that NAB writes letter to the accused persons regarding VRs after initiating inquiries.

Senior lawyer Farooq H Naek requested the bench to give time to parliament for appropriate legislation. Hearing of the case was later adjourned till first week of February.

When the case was taken up, former attorney general Ashtar Ausaf Ali objected to NAB chairman’s VR power. Ali contended that unfettered power of NAB chairman is not a good law, adding that the power should be subject to discretion and circumscribed structured statutory prescribed standards.

He said the Pakistan Muslim League-Nawaz (PML-N) government sent its recommendations to the parliamentary committee which improved the first text of the law. “There were 1,500 cases of voluntary return wherein 1,884 people got benefit,” he added.

A three-member SC bench, headed by former chief justice Anwar Zaheer Jamali, pronounced its order on Oct 24, 2016 and directed the secretary Establishment Division and all the chief secretaries of the provinces to ensure initiation of departmental proceedings forthwith against the employees who had voluntarily returned the amount in terms of Section 25 (a) of National Accountability Ordinance (NAO).

“The frequent exercise of the VR power by the NAB multiplies corruption on the one side but it also defeated the purpose of NAB Ordinance, which was promulgated to eliminate corruption,” the SC’s two member bench, headed by former SC judge Justice Amir Hani Muslim, observed while hearing the bureau’s appeal against the rejection of remand of a private person in a fraud case.

Justice Hani had observed that a civil servant, after striking a VR deal, again sits in his office and keeps looting the public money. The court observed that neither the federal nor the provincial governments took notice of such matters despite receiving NAB letters regarding such government servants.

The court observed that exercise of Section 25(A) by NAB under the VR Scheme was prima facie a conflict of various provisions of the Constitution and such power could only be exercised by the judicial forum, as routinely after payment of VR the accused is scot free without any departmental proceedings.

The court said such aspect required to be examined in light of the Constitution wherein a civil servant could not be allowed to take benefit under the garb of Section 25(A) of NAB Ordinance. The court had referred the matter to the chief justice for Constitution of a larger bench to examine such issues.