While amending NAB law, PTI govt ignores SC proposals
Apex court in Nov 2018 proposed changing provisions regarding bail and trail period
PM Imran Khan. PHOTO: PTI
ISLAMABAD:
The PTI led federal government has ignored the Supreme Court’s proposals for amendments in the law – the National Accountability Ordinance 1999 – governing the country’s top accountability watchdog, the National Accountability Bureau (NAB).
President Dr Arif Alvi on Friday promulgated the NAB (Amendment) Ordinance 2019 in a move to limit the sweeping powers of the anti-corruption watchdog to act against any individual accused of financial corruption at will.
The new law offers more protection to public officeholders or government officials while at the same time excludes several financial sectors from the purview of the anti-corruption watchdog.
Under the ordinance, the government mandates the NAB chairman to submit a report on complaints against the bureau to government. Earlier, the NAB chief used to submit such a report to the president.
The government claimed that the amendment was the need of the hour to restore confidence of public officeholders as well as businessmen as they were complaining about their harassment by NAB.
However, opinion is divided over new amendments in the NAB law.
One section claims that the government functionaries brought changes to favour civil servants and businessmen closed to them. The other section believes that a dilution in the law was much needed as NAB is getting out of control.
They claim that NAB and the Federal Board of Revenue (FBR) – the central tax collecting authority – have destroyed all investment and businesses in Pakistan.
However, while amending the NAB law, the government has totally ignored the proposals put forward by a Supreme Court larger bench which in November 2018 had proposed two amendments.
Govt amends NAB law, sets off debate
These proposals were part of a 22-page verdict authored by Justice Asif Saeed Khosa while deciding bail appeal of Tallat Ishaq, an office superintendent at the Director Development, Quetta Division.
The court had proposed that in the changed scenario the legislature may consider amending the National Accountability Ordinance (NAO) 1999 appropriately so as to enable an accused person to apply for his bail before the relevant accountability court in the first instance.
It had also recommended that the unrealistic timeframe for conclusion of a trial as specified in section 16(a) of the NAO, 1999 may also be reconsidered and revisited by the legislature.
The judgment said the original intent behind introduction of section 9(b) of the NAO, 1999 ousting jurisdiction of the courts regarding grant of bail in a case under the said ordinance already stands neutralised by opening of the door for bail through a high court.
“Apart from that the high courts and this court have 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, CrPC.”
Legal opinion
Commenting on the new amendments in NAB law, Umer Gilani advocate said the most glaring flaw in NAB Ordinance 1999 – from a fundamental rights perspective – is the total prohibition of bail.
Unlike ordinary criminal courts, an accountability court simply cannot release an under trial accused on bail, no matter how weak the case against him may be. "The Supreme Court pointed out this flaw recently in Talat Ishaq's case. Unfortunately, it has been left completely unaddressed," he added.
Karachi based lawyer Salahudin Ahmed said NAB law was a discriminatory and defective law introduced by former dictator General Pervez Musharraf and it allows too much power to the NAB chairman to pick and choose which cases will proceed under NAB law and which will proceed under ordinary law.
"Had it not been a martial law period, it would have been struck down by the SC in Asfandyar Wali’s case,” he said.
Talking with reference to recent amendment, he said the government has curtailed some of NAB’s jurisdiction viz-a-viz public officeholders and private persons and especially in tax matters, which, he said, is a good thing.
PTI govt’s ‘self-serving’ NAB law changes rejected
“However, it has been introduced through a presidential ordinance which means that it will only last up to 4 months – or at best for 8 months if extended. After that period, further confusion will be created regarding all the pending cases.”
Ahmed said it would have been better if an amending act had been passed, although that would have involved taking the input of the opposition parties.
“Politically speaking, however, this ordinance will probably be seen as yet another U-turn by the PTI government which came to power on the promise of broader and stricter accountability" he added.
Opposition parties are also demanding amendments in section 24-d of the NAO 1999.
The section empowers the NAB chairman to arrest any person during investigation and aggrieved parties have no forum to knock at to redress their grievances.
Recently, PPP Senator Farooq H Naek also moved a bill in the Senate, recommending omission of Sections 24(d) and 24(e), pertaining to the procedure adopted for the arrest of a person by NAB.
The provision is being misused to deny liberty to respectable citizens and exert undue pressure to extract statements favourable to the prosecution regardless of the truth.
“There is no need for custodial investigation as investigation can be carried out and a person can be questioned at a NAB office without being detained overnight,” says the bill.
The PTI led federal government has ignored the Supreme Court’s proposals for amendments in the law – the National Accountability Ordinance 1999 – governing the country’s top accountability watchdog, the National Accountability Bureau (NAB).
President Dr Arif Alvi on Friday promulgated the NAB (Amendment) Ordinance 2019 in a move to limit the sweeping powers of the anti-corruption watchdog to act against any individual accused of financial corruption at will.
The new law offers more protection to public officeholders or government officials while at the same time excludes several financial sectors from the purview of the anti-corruption watchdog.
Under the ordinance, the government mandates the NAB chairman to submit a report on complaints against the bureau to government. Earlier, the NAB chief used to submit such a report to the president.
The government claimed that the amendment was the need of the hour to restore confidence of public officeholders as well as businessmen as they were complaining about their harassment by NAB.
However, opinion is divided over new amendments in the NAB law.
One section claims that the government functionaries brought changes to favour civil servants and businessmen closed to them. The other section believes that a dilution in the law was much needed as NAB is getting out of control.
They claim that NAB and the Federal Board of Revenue (FBR) – the central tax collecting authority – have destroyed all investment and businesses in Pakistan.
However, while amending the NAB law, the government has totally ignored the proposals put forward by a Supreme Court larger bench which in November 2018 had proposed two amendments.
Govt amends NAB law, sets off debate
These proposals were part of a 22-page verdict authored by Justice Asif Saeed Khosa while deciding bail appeal of Tallat Ishaq, an office superintendent at the Director Development, Quetta Division.
The court had proposed that in the changed scenario the legislature may consider amending the National Accountability Ordinance (NAO) 1999 appropriately so as to enable an accused person to apply for his bail before the relevant accountability court in the first instance.
It had also recommended that the unrealistic timeframe for conclusion of a trial as specified in section 16(a) of the NAO, 1999 may also be reconsidered and revisited by the legislature.
The judgment said the original intent behind introduction of section 9(b) of the NAO, 1999 ousting jurisdiction of the courts regarding grant of bail in a case under the said ordinance already stands neutralised by opening of the door for bail through a high court.
“Apart from that the high courts and this court have 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, CrPC.”
Legal opinion
Commenting on the new amendments in NAB law, Umer Gilani advocate said the most glaring flaw in NAB Ordinance 1999 – from a fundamental rights perspective – is the total prohibition of bail.
Unlike ordinary criminal courts, an accountability court simply cannot release an under trial accused on bail, no matter how weak the case against him may be. "The Supreme Court pointed out this flaw recently in Talat Ishaq's case. Unfortunately, it has been left completely unaddressed," he added.
Karachi based lawyer Salahudin Ahmed said NAB law was a discriminatory and defective law introduced by former dictator General Pervez Musharraf and it allows too much power to the NAB chairman to pick and choose which cases will proceed under NAB law and which will proceed under ordinary law.
"Had it not been a martial law period, it would have been struck down by the SC in Asfandyar Wali’s case,” he said.
Talking with reference to recent amendment, he said the government has curtailed some of NAB’s jurisdiction viz-a-viz public officeholders and private persons and especially in tax matters, which, he said, is a good thing.
PTI govt’s ‘self-serving’ NAB law changes rejected
“However, it has been introduced through a presidential ordinance which means that it will only last up to 4 months – or at best for 8 months if extended. After that period, further confusion will be created regarding all the pending cases.”
Ahmed said it would have been better if an amending act had been passed, although that would have involved taking the input of the opposition parties.
“Politically speaking, however, this ordinance will probably be seen as yet another U-turn by the PTI government which came to power on the promise of broader and stricter accountability" he added.
Opposition parties are also demanding amendments in section 24-d of the NAO 1999.
The section empowers the NAB chairman to arrest any person during investigation and aggrieved parties have no forum to knock at to redress their grievances.
Recently, PPP Senator Farooq H Naek also moved a bill in the Senate, recommending omission of Sections 24(d) and 24(e), pertaining to the procedure adopted for the arrest of a person by NAB.
The provision is being misused to deny liberty to respectable citizens and exert undue pressure to extract statements favourable to the prosecution regardless of the truth.
“There is no need for custodial investigation as investigation can be carried out and a person can be questioned at a NAB office without being detained overnight,” says the bill.