ISLAMABAD: National Accountability Bureau (NAB) chairman retired Justice Javed Iqbal conceded before the Supreme Court on Saturday that — with 1,226 pending references, current strength of accountability courts and workload — it is impossible to adjudicate and finalise a corruption reference within 30 days.
A report was submitted on behalf of the NAB chairman to the Supreme Court which is seized with a suo motu case regarding delay in trials before the accountability courts, in the light of Section 16 of the National Accountability Ordinance (NAO) 1999 which asks for deciding corruption matters within 30 days.
The suo motu proceedings were initiated when Justice Mushir Alam on Jan 8 requested the chief justice to constitute a special bench and initiate suo motu proceedings over delay in prosecuting the accused before the trial courts.
On July 8, the Supreme Court had ordered Prosecutor General Syed Haider Asghar to furnish a report duly signed by the NAB chairman and suggesting ways to clear the backlog.
NAB chairman explains reasons for delay in trials, suggests appointment of retired judges to accountability courts
In response, the report submitted on behalf of the NAB chairman lists a number of reasons for delays in concluding trials starting by saying usually defence files miscellaneous applications in which interlocutory orders are made by the accountability courts that results in stalling and delaying the main proceedings. This hampers the progress of trials and to curb this tendency timelines are needed and such frivolous applications should be dismissed with cost.
And to further complicate matters, these orders are then assailed with the appellate forums wherein at times stay orders are granted and as a resultant the proceedings are suspended, the report says.
The biggest hurdle which is plaguing the smooth proceedings and causing massive delays in trials is the long list of witnesses because of the current legal requirements, it says.
If the witness of an accused is not available, the proceedings get stalled to fulfil the requisite requirements of CrPC, thus at times the matters are adjourned sine die, the report says.
It says NAB treats these cases as dormant but they remain languishing for years on its books as they are treated as “not decided”. To offset this malady the procedure and mechanism as contained in the Financial Institutions (Recovery of Finance) Ordinance, which has been enacted for a similar purpose, can be resorted to, since this statute contains a provision that the entries made in the statement of accounts under the Bankers Book Evidence Act 1891 are assumed true and correct if a certificate to that effect is furnished by the authority concerned.
Referring to the voluntary return under Section 25(a) of the NAO, which has been suspended on the orders of the apex court, the report argues that this provision helps conclude most of the cases since the purpose is to retrieve ill-gotten money quickly.
The provisions relating to declaring an accused proclaimed offender is lengthy as a result of which the trial proceedings are unnecessarily delayed, the report says. Therefore a proper procedure should be framed and the process should be initiated before commencement of trial by an accountability court.
Likewise the grant of bail to the accused gives an opportunity to the defence to delay and prolong the matter, thus emphasis should be made on concluding the trial instead of getting proceedings entangled, the report says, adding that the bail is not a right but it is granted subject to compelling circumstances as it is an extraordinary relief.
The report highlights that NAB law primarily deals with white collar crime therefore the procedure laid down in CrPC should be followed to ensure transparency and merit but in case the accountability court feels that there is a deliberate premeditated delay, it should exercise the powers vested in it by law under the NAO and devise an expeditious procedure in consonance with the principles of natural justice to obviate delay.
The report also suggests that the law ministry should be directed to finalise the names of accountability judges for appointment in 10 days since the current procedure is very lengthy. Besides the period of holding the office of accountability judge should be increased to five years from the current three years. When consultation is made for the appointment, reserved judges should be kept in a pool of judges and on occurrence of a vacancy their services should be forthwith utilised.
Moreover the principle of burden of proof and standard of proof as envisaged in Section 14 of the NAO is not being adhered to, the report says, adding that the purpose of legislation stands compromised.
About the Mutual Legal Assistance which pertains to foreign jurisdiction, the report says it is a time consuming process and NAB is required to await the receipt of information and as a result it has to file supplementary references.
Moreover the expression politically exposed persons is misconstrued by the court therefore this term needs to be defined since this factum is impleaded in interlocutory proceedings and thus causes massive delays. The report also requests the apex court to provide a timeframe for expeditious conclusion of the cases since NAB has to go up to the appeal stage after the trial.
The NAB chairman also suggests that in case of difficulty in getting the services of 120 district and sessions judges to be appointed as accountability judges, the services of retired judges of impeccable reputation should be acquired to clear the backlog as expeditiously as possible.
Published in Dawn, July 26th, 2020