Amendments to NAB Ordinance

The PTI government has finally introduced the much-awaited changes to the NAB Ordinance.

Why did the NAB law need to change? The critique on the law has centred around three key issues: undue harassment of the business community leading to loss of market confidence, bureaucracy coming to a standstill due to fears of accountability and some structural weaknesses in the law.

The businessmen have long complained about NAB’s interference in business activities, even on tax-related matters. The recent amendments, however, have excluded all tax-related cases from the purview of NAB, with all respective inquiries, investigations and trials transferred to the relevant agencies and courts. Similarly, all cases that have no connection with a public office holder, barring a few valid exceptions, no more fall within NAB’s jurisdiction. These changes will indeed provide a sigh of relief to the business community.

For civil servants also, the NAB law has been a sore point. Since the PTI government took over, the bureaucracy has been complaining about the blurred line between corruption and financial or administrative irregularities. Such irregularities do not necessarily constitute corruption unless they are deliberate and have been carried out for some material benefit. But the lack of clarity has been putting even well-meaning bureaucrats at the whims of NAB officials. Moreover, the media trials, even before the inquiries were complete, led to an overnight loss of reputation of bureaucrats.

The recent round of amendments has at least partially addressed these issues. The cases of procedural lapses, advice or opinion rendered, misuse of authority and acts of good faith can no more be questioned by NAB unless there is direct or corroborative evidence of material benefit accrued by the accused. The burden of proof also lies on NAB to produce that evidence. However, the revised Ordinance did not create space for the proposed Scrutiny Committee to filter out any frivolous inquiries against bureaucrats. Similarly, no provisions were made to prevent the re-opening of previously closed inquiries or to stop NAB officials from making pre-mature public statements before a reference is filed.

Lastly, the structural weaknesses in the NAB law that have been highlighted time and again were not touched at all. For instance, the role of NAB Chairman in the appointment of Prosecutor General very much stands; the remand duration of 90 days has not been reduced; the financial limit of 50 million rupees for conducting NAB inquiries has not been revised upwards; and even the plea bargain provisions remain, providing a backdoor exit to the corrupt.

An independent and powerful anti-corruption watchdog is central to control of corruption, but not without due controls or oversight. In the UK for instance, the independent Director of Public Prosecutions acts as a gatekeeper and no proceeding for an offence under the Bribery Act 2010 can be instituted without his consent. In case of NAB, the Prosecutor General continues to operate under the Chairman’s shadow. Similarly, many countries have put in place parliament and citizens oversight mechanisms to ensure impartiality of the anti-corruption agencies, but no such mechanism exists in Pakistan.

Notwithstanding these omissions, the revised Ordinance is a step in the right direction. Going forward it will be important for the PTI government to stand behind these changes and even consider further improvement to enhance the impartiality and credibility of the statute. Moreover, the amended law is still an ordinance and will have to pass through the legislative approval very soon, and therefore it is important for the government to take the opposition on board with these amendments. But most importantly, more than the law, it’s the practice that matters. The ultimate litmus test of these amendments would therefore be their unbiased application on existing political cases.

Published in The Express Tribune, December 31^st, 2019.

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