Significant changes to accountability law

By Tanzeel Rauf Farooqui

(Pakistan News & Features Services)

The performance of the National Accountability Bureau (NAB) has affected all branches of the state; the legislature, the executive and the judiciary. The affairs of the legislature, lawmaking, has been subject to a constant disruption due to the lack of trust in the NAB and demands of adopting amendments to curtail it before any other course of legislative business, the executive has been unable to function as the bureaucracy fears that the wide and its arbitrary powers will engulf them based on the duties that are discharged without any malice, and the judiciary has also been affected as numerous litigation has been instituted against I which includes decisions being passed by the superior judiciary questioning the modus operandi of the NAB. 

Therefore, it is not a surprise that reaching a consensus on what is to be done regarding the same seems to be utterly difficult, if not impossible, between the treasury and opposition benches. Adding fuel to fire, the performance of the NAB has caused a lack of trust for all. The government complains that the bureaucracy does not function, whereas the bureaucracy points towards the wide and arbitrary powers that have been bestowed to it which have been allegedly ‘misused’ at the expense of the public officeholders. The opposition alleges that they have been subject to brutal punishment under the garb of accountability by the government ‘backed’ NAB whose performance has been criticized by the judiciary in infamous cases. 

In an attempt to restore the confidence of all, the government has taken another initiative to amend the existing law, with the introduction of the National Accountability (Amendment) Ordinance, 2021. However, the response tendered by the opposition for the same, and the mode of lawmaking adopted by the government depicts that this attempt may, once more, not achieve the purpose, if that was the case. 

 A bare perusal of the Amending Ordinance reveals the intention through which the government has introduced the same. Amending Section 4 of the original law, the government has decided to exclude certain matters, which include the affairs of the federal and provincial cabinets and the sub-committees, Council of Common Interests, National Economic Council and its Executive Committee, National Finance Commission, Development Working Parties at the Federal, Provincial and Departmental levels and the State Bank of Pakistan. 

Further, jurisdiction of the NAB over transactions, persons or entities that are not directly or indirectly connected to a holder of the public office have also been attempted to be curtailed. The same had been a concern of many businessmen and women and was inevitably steering the economy to a crisis due to lack of investments. Moreover, the same Section 4 has also excluded procedural lapses, where there is no connection between the said lapse and any monetary or material benefit or gain being accrued that the recipient was not entitled to receive. This aspect of the amendment was aimed at the bureaucracy as the functions of the government on every level had been virtually withheld due to the fear of initiation of criminal proceedings by the NAB over discharging of duties. 

What is to be noted that now, for any action taken by the NAB regarding procedural lapses by bureaucrats, establishing that monetary or material benefit has been gained by the bureaucrat, directly or indirectly, in lieu of the alleged ill-act will need to be presented by the NAB, a mammoth of a standard to attain, if applied in letter and spirit. The same standard has also been introduced for advice, opinion or report which had been given in course of duty by a bureaucrat. 

Furthermore, the amendment has also directed that all the pending inquiries, investigations, trials or proceedings, instituted under the original ordinance that fall under the relevant clauses of the amended Section 4 shall be transferred to the concerned authorities, departments and courts under the respective laws, a measure which is long overdue as authorities such as the Anti-Corruption Establishment, the Federal Board of Revenue and the Federal Investigation Agency have been present before the creation of the NAB. The changes introduced by the government by amendments to Section 4 of the original accountability law, if applied and construed strictly to the amended ordinance, will be widely welcomed by businessmen and women and the bureaucracy alike, as pending cases will have to meet the newly introduced standard and any new action taken by the NAB will also be subject to the same standard, a standard which cannot easily be discharged in a criminal matter before a court of law. 

The implementation of this part of the amendment is key to the revival of the economy, efficient functioning of the government and clearing of mistrust due to the unfettered powers of the NAB, which has been the concern of, directly or indirectly, all the citizens of Pakistan. Amendment in Section 5 have altered the definition of certain wordings of the accountability ordinance, most notably the change in the definition of the word ‘assets’, which has now been widened to include the property owned, controlled or belonging to the accused, directly or indirectly, or benami properties which are held in the name of the spouse, relatives or associate or any other person, whether inside Pakistan or abroad, which the accused cannot reasonably and lawfully account for. 

The widening of the definition of assets will allow more assets to be taken into consideration by the NAB, however how the same is proved to be connected to any accused, beyond reasonable doubt, still remains to be seen. The lack of the accountability courts had been cited as one of the reasons as to why there was slow progress of the trials, which remained pending for years. 

By adding Section 5A to the 2001 ordinance, the President has been empowered to establish as many accountability courts as needed throughout the country, with the consultation of the Chief Justice of Pakistan. Additionally, the pool through which a judge of the accountability court may be selected has been widened to include persons who have been judges of the High Court or acted in the same capacity, judges at the level of District or Additional District Judge or judges of a Special Court or Member Judicial of tribunals, however, the said persons shall be required to be under the age of sixty-eight (68) at the time of their appointment. 

The increase of the pool of candidates allows a greater choice of persons that may be appointed in the accountability court and the same should not only speed up the process but shall further allow capable persons to be appointed to the accountability courts. However, what is interesting is that the government has virtually granted the status of a judge of the High Court to judges of Accountability courts, as they will be entitled to draw pay and allowances of the judge of the High Court. 

This is another important aspect to consider as with the clear intent of the government of forming more courts, the judges that will be appointed on the said courts will draw much greater remunerations, which all will have to be paid by a government that is taking loans for payment of installments of other loans. 

The extension of the incumbent chairman of the NAB can be stated to be the central issue of current political deadlock between the government and opposition, where it had been argued by the opposition that under the original law, the chairman cannot be granted an extension due to the ‘non-extendable’ wording of the post in the original law. In order to overcome this hurdle, the government has scrapped the non-extendable wording through substitution of Section 6 of the original ordinance with the amended version, thereby allowing extension in the term of office a Chairman, following the same procedure for appointing a chairman. 

The procedure of the removal of the chairman has been amended to be the same procedure that is adopted for the removal of a Judge of the Supreme Court, making the removal of the chairman much more difficult. The amended ordinance has empowered the President to appoint the Chairman, after consultation by the Prime Minister and the Opposition Leader and if no consensus has been reached, the matter of the appointment of the chairman NAB is to be sent to a Parliamentary Committee that will be formed for the purpose of the same and until the said committee is not able to decide upon the mandate given to it. 

In the event of expiration of the tenure of the outgoing chairman, the incumbent shall continue to act in the same capacity until a successor is appointed. This issue had been at the center of the argument between the treasury and opposition benches, however, the government, by the promulgation of an Ordinance rather than an Act, can be seen to be adamant on their position. 

Overall performance of the NAB had reflected as poor, and the cases having been filed had been severely questioned by the superior judiciary in several decisions. What can be said to be an effort of ensuring that the taxpayers' money is not wasted and the rights of the accused that were once seen to be non-existent due to the modus operandi of the NAB have been attempted to be restored by the amendment to Section 8 of the 2001 Ordinance. 

The amendment introduces the rendering of advice by the Prosecutor General and Special Prosecutor in order to ensure that the rights and interests of the accused are protected. The chairman NAB shall also share the investigation report to the Prosecutor General and seek concurrence for the commencement or continuation of prosecution. Once again, the manner in which the text is interpreted is of prime consideration as seeking concurrence may be interpreted as seeking an agreement of the Prosecutor General, and in the absence of the same, cases may not be commenced or continued to be prosecuted by the NAB, therefore the way that the amending ordinance applied by the NAB and more importantly, interpreted by the judiciary will need to be observed. 

Another matter which was always the center of debate for cases falling under the Accountability Ordinance of 2001 was that there was no provision of grant of bail to the accused. The superior judiciary of Pakistan, upholding the Constitution of 1973 and ensuring that the rights of the accused are protected, granted bail in the past utilizing the extraordinary jurisdiction that was granted to it by the Constitution. The right of bail has been recognized in jurisdictions world over to be a right of the accused, and the superior judiciary sought to enforce the same for accused arrayed in cases by the NAB. 

The draconian nature of the original ordinance, which effectively resulted in an economic crisis, has made the government realize through actual experience that inclusion of bail is a need and has amended Section 9 by granting the powers for bail to the Accountability Court. However, in adding the same, the government has also made it a requirement that the surety amount of the said bail shall be fixed to be no less than the charge that a person is facing by the NAB. The inclusion of these wordings are pivotal as the government has not accounted for, or does not want to account for, the fact that the NAB had been argued to accuse persons based on financial charges that, at times, have had no quantum. 

The disqualification from the provision of finance facilities under Section 15 has been omitted by the amending ordinance, thereby allowing those convicted for offences falling under Section 9 to still be able to apply for financial facilities. The intention for doing the same has been met with criticism by the opposition and is seen as a tactic by the government to protect certain classes of individuals. As important as speedy trials are, the perception that legal proceedings are actually leading to justice also needs to be maintained. 

If the confidence on the judicial system as a whole is lost, and it is a presupposed thought that speedy trials will evidently result in what can be stated to be an equivalent to a miscarriage of justice, then the entire purpose behind the creation of a watchdog to uphold the rule of law goes in vain. Therefore, placing a six (6) month limit, without adequate measures being taken to ensure confidence, will result in more harm then benefit, and the same is a point to ponder upon for the government. 

Allowing audio and/or video evidence through modern devices can be viewed to be a commendable effort by the government, however, it needs to be ensured that the standards requiring the same evidence, especially in cases of criminal nature, must be met by the government at the end, as the court will require the government to facilitate recording of such evidence, therefore the instant attempt might need to be reconsidered by the government. 

The chairman has been allowed powers to withdraw in part or whole, with consultation with the Prosecutor General, a reference which the NAB is yet to file before the court, or one which is already being adjudicated upon before the courts. Insertion of Section 33F therefore bestows the power of withdrawal of a reference and restricts legal action or claim being initiated against not only the NAB and its officials, but also against the federal, provincial and local governments. 

Whether the instant ouster clause will stand in the eyes of the law will have to be seen through the interpretation given to the same by the courts. It must be reconsidered that in the presence of authorities such as the Federal Investigation Agency (FIA), the Anti-Corruption Establishment, the Federal Board of Revenue (FBR) and even the State Bank of Pakistan (SBP) to name a few, why is there a need for the NAB especially when it has been the centre of controversy since its inception. Whatever the outcome may be, between all of this, the real sufferers will be those who genuinely raised concerns against the vague jurisdiction of the NAB and the entire economic arena of Pakistan. 

As many political leaders, primarily from the opposition used to state, the economy and the NAB cannot function together, and it seems that the government is beginning to realize the same, but still has a long way to go. Till then, we can only hope that the withering state of the country, from virtually non-existent lawmaking to the bureaucracy unwilling and hesitant to function and the bare minimum investments from the business sector, maybe stabilized somehow. Hope is what one needs, and is only what many actually have, however, hope in absence of genuine actions from the legislature, unfortunately, only projects continuance of the status quo that is at the expense of the state in its entirety.