President promulgates amended NAO ordinance

A PML-N senator has questioned the appointment of retired judges to accountability courts

ISLAMABAD:

The PTI-led federal government has given certain exemptions to public office-holders in the amended National Accountability Ordinance (NAO) 2021, promulgated by President Arif Alvi on Wednesday.
A senior government official believes that the ordinance may benefit PML-N leaders Ahsan Iqbal and Shahid Khaqan Abbasi, who are facing corruption cases.

However, a PML-N senator has expressed serious concerns over the new amendments to the NAO, 1999. He questioned the appointment of retired judges to accountability courts. He also objected to the amendments about the admissibility of evidence during trial.

As per the Ordinance, Justice (retd) Javed Iqbal will remain in his seat till the appointment of a new chief of the National Accountability Bureau (NAB). It further stated that Iqbal could also be chosen as a candidate for the new NAB chairman slot.

The draft read that Ordinance that its provisions would not be applicable to matters pertaining to federal, provincial or local taxation, other levies or imports -- including refunds or loss of exchequer pertaining to taxation.

It will also not apply to the decisions of the federal or provincial cabinets, 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.

“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, have also been exempted.

The Ordinance will also not apply to 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, whether directly or indirectly, that they were not entitled to receive”.

The Ordinance stated that on the National Accountability (Second Amendment) Ordinance, 2021 coming into force, all pending inquiries, investigations, trials or proceedings under it, relating to persons or transactions mentioned in sub-section (2), shall stand transferred to the concerned authorities, departments and courts under the respective laws.

The ordinance while defining word "assets" read that they include all kinds of properties 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 the country, that they cannot reasonably and lawfully account for.

It further stated that the NAB chairman shall be appointed by the president in consultation with the leader of the House and the leader of the opposition in the National Assembly.

“If there is no consensus on the name of the chairman, the names(s) proposed by the leader of the House and the leader of the opposition shall be forwarded by the president to a parliamentary committee appointed under a clause (i) which may confirm any one name for appointment as chairman.”

It further read that the parliamentary committee, under clause (ii), would be formed by the NA speaker, comprising 50% percent members from both the treasury and opposition benches.

The NAB chief would hold office for a period of four years on such terms and conditions as may be determined by the president and not removed from office except on grounds provided for the removal of a judge of the Supreme Court in the manner and by the forum provided under Article 209 of the Constitution.

The Ordinance read that the president, in consultation with the chief justice of Pakistan, would establish as many accountability courts throughout the country, as he may deem necessary, to try offences under the Ordinance.

The president will appoint accountability court judges. They will be serving district and sessions or additional district and sessions Judge, after consultation with the chief justice of the high court concerned.

They can also be a high court judge or a retired district or additional district and sessions or a serving or retired judge of a special court. They will not be over the age of 60 at the time of their appointment after consultation with the chief justice of Pakistan.

The ordinance read that an accountability court judge would be appointed for a period of three years on such pay and allowances as that of a high court judge.

“A Judge of the Accountability Court shall only be removable by the President, in consultation with the Chief Justice of the concerned High Court, before the expiry of his tenure, if he is guilty of misconduct or is incapable of properly performing the duties of his office by reason of physical or mental incapacity.  Disciplinary proceedings against a Judge of the Accountability Court shall be conducted in the same manner and under the same legal provisions and rules as prescribed for a District and Sessions Judge.”

The ordinance inserted new a section regarding trial management.  It read that the court would prescribe the case management schedule, as soon as practicable, but preferably not later than seven working days from the date when it takes cognisance of the trial. 

"In trials before court, save as expressly provided otherwise, the evidence of all witnesses and the accused, including examination-in-chief, cross-examination and re-examination, or any other statement under the Code, shall be recorded through electronic audio-video means, or any other modern device, whereafter the recording shall be transcribed verbatim in the same language in which the evidence has been uttered.”

It further stated that in case the witness, the accused or anyone else, disputed the contents of the transcript, the court may resolve it after consulting the electronic audio-video recording. 

"In case it is not practicable or feasible for a witness to attend the court in person, his evidence may be recorded through video-link or any other modern device, in which case the court may dispense the requirements of Section 353 of the Code.”

The video conferencing would be held at the place approved by the court.  

“If the witness is in Pakistan, a commission shall be issued to the magistrate of the first class under Section 503 or 506 of the Code to facilitate and supervise the process as hereinafter mentioned, which shall apply mutatis mutandis to this clause. If the witness resides in any country with which Pakistan has reciprocal arrangements, a commission shall be issued to the court or judge having authority in this behalf as may have been specified in terms of sub-section (2-B) of section 503 of this Code. However, where no such arrangements exist, the statement of the witness must be recorded in the Pakistan Embassy or High Commission or Consulate or, if the Court permits, in a Notary's office in the presence of an officer of that Embassy or High Commission or Consulate or the Notary, as the case may be.”

The court would provide to the witness copies of any documents that he may be entitled to demand under any law for the time being in force, which if demanded at the time of recording of evidence, may be sent to the witness electronically.

"The visual must be recorded at the court's end, secured with the seal of the court and shall be made part of the record. If a video link fails during the proceedings, the court may adjourn the proceedings or make such other order as it may deem appropriate.”

The federal government would take immediate steps to install the appropriate facilities to record evidence through electronic audio-video means or any other modern device, in all courts throughout the country, preferably within a period of six months from the date of commencement of this section.

A new section 31DD has been inserted that read that notwithstanding anything contained in the Ordinance or any other law for the time being in force, no inquiry, investigation or proceedings in respect of a decision of a board of a bank or financial institution, shall be initiated without the prior approval of the State Bank governor.

Prior to the filing of a reference, the NAB chairman, 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. 

“No action or claim by way of suit, prosecution, complaint or other civil or criminal proceedings shall lie against the federal, provincial or local governments, NAB 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).”