ONCE they become law, the amendments made to the NAB (Second Amendment) Bill 2021 by the PML-N-led government may end up benefitting over 90 per cent of cases, including high-profile ones, that the National Accountability Bureau (NAB) is dealing with — whether at the inquiry, investigation or trial stage.
The bill had sailed through both Houses of parliament late last month and was sent to the president to sign into law, but Dr Arif Alvi refused, and returned the NAB bill as well as the one pertaining to electoral reforms, saying they had violated Article 46 of the Constitution. Some legal experts and former officials told Dawn that changes in the NAB law will have retrospective effect — from the date of promulgation of the original National Accountability Ordinance (NAO) 1999.
“Since the original NAO went into effect in January 1985, therefore, all the changes made to the law will be effective from that date. More than 90pc cases of NAB, whether at inquiry, investigation or trial stage, will benefit from these amendments,” says a retired NAB official.
Former NAB Punjab director retired Brig Farooq Hameed says it would have been better for the government to shut the bureau instead of introducing such sweeping legislation to defang it. “Accountability of the corrupt elite is now next to impossible. Why should the government allocate billions of rupees in the budget for NAB when it has brought about changes to ensure billions of rupees looted by the corrupt cannot be recovered... RIP (rest in peace) accountability,” he remarks.
According to a former NAB prosecutor, the most glaring change made in the NAB law is allowing a suspect to get away with the wealth he/she has amassed through whichever means, as the burden of proof has been shifted to the one who reports the matter to the bureau.
Ex-official says govt should rather disband watchdog, new law makes accountability of ‘elite’ extremely difficult
Constitutional expert Hamid Khan sees the amendments as a “licence to corruption”. He says it is unfortunate that those carrying out legislation want to save themselves from the clutches of the anti-graft body.
Mr Khan also blames the opposition PTI for indirectly allowing the PML-N-led government to carry out changes to laws by resigning from the National Assembly. “The opposition should have been in parliament to stop the government from doing this controversial legislation. The PTI has made it easy for the government to have a dummy opposition leader to make important appointments like the NAB chairman, election commissioner and, most importantly, the future caretaker set-up.”
The senior lawyer further says although the opposition may challenge the NAB bill in court, it would have been better if the battle was fought in parliament.
In assets beyond means cases, the value of property will be considered as shown in a registered document or the Federal Board of Revenue value, whichever is higher. “No evidence contrary to the latter will be admissible. Since the FBR rate was introduced about five years back, practically the value shown in the registry or deputy commissioner rate will be taken as the value of the immovable asset for all such properties, which were acquired five years ago. This will also allow a huge benefit to the suspects,” says another lawyer.
Moreover, it has been mentioned that assets should be ‘substantially’ beyond means and have been made from ‘corrupt and dishonest means’. “No definition of ‘substantial’ has been stated in the law. Further, linking assets with corrupt and dishonest means will also give significant benefit to an accused. If a public office holder is keeping valuable assets worth millions of rupees, which he cannot justify with his known sources of income, the NAB cannot proceed against him under the new law as the entire onus will be on the bureau to establish that such assets are made from corrupt and dishonest means. Section 14 of the NAO 1999, which says the burden of proof in cases where the anti-graft body has made a reasonable case will shift to the accused person, is deleted altogether,” says an expert.
Similarly, he says, in misuse of authority cases, it will be mandatory to show that a public office holder making a decision gained ‘monetary’ benefit from that decision. “Since benefit can be in the form of posting, transfer, non-monetary favours, political clout etc, limiting it to only monetary form will largely benefit suspects.”
In the absence of a NAB chairman or deputy chairman, any senior officer of the NAB will function as the chairman. “This can be misused by any incumbent government.”
The definition of ‘asset’ has also been changed ‘drastically’. Previously, it meant any property held by the suspects, directly or indirectly, in his/her own name or in the name of a spouse or relative. “Now, a property only in the name of the accused or his/her benamidar will be included in the definition of asset. This will benefit a number of high-profile suspects like (prime minister) Shehbaz Sharif, former principal secretary to the premier Fawad Hassan Fawad, etc who have been accused of accumulating assets in the names of their spouses and relatives.”
Likewise, Section 23 of the NAO 1999, which says a suspect cannot dispose of his property during inquiry and investigation without permission of a court, has been deleted. “Inquiry or investigation time is restricted to six months by law, which is not practical in white collar crime cases. Similarly, the remand time in NAB custody is reduced to 14 days. Keeping in view the complexity of white collar crimes, in some cases even 90-day remand seems insufficient. Restricting it to 14 days will greatly affect the investigation.”
In Section 21, clause (g) has been omitted. It made every evidence received from a foreign state admissible in court proceedings notwithstanding with provisions of Qanun-e-Shahadat Order 1984. “The possible beneficiary of this deletion may be PML-N vice president Maryam Nawaz whose trust deed written in Calibri font was received from the UK. These documents will no longer be admissible in court proceedings.”
Under the amended law, the number of affected persons in ‘cheating public at large’ cases should not be less than 100. “A major beneficiary of this amendment may be Railways Minister Khwaja Saad Rafique and his brother Punjab minister Khawaja Salman Rafique facing the Paragon society reference involving 76 affectees. Previously, the NAB as per its standard operating procedures could take cognizance of up to 50 affectees. Later, a Supreme Court judgement declared that 22 people can also be treated as public at large.”
Through an amendment to Section 26 of the NAO, an accused person becoming an approver in a case shall be disqualified from holding any public office for five years. “This will certainly discourage the accused from coming forward and disclosing facts and circumstances of the commission of an offence. Further, another condition has been added for the person becoming an approver that the disclosure shall be ‘based on material’. This is another hindrance, as in white collar crimes, a person privy to the planning of commission of an offence may not be able to have ‘material’ to support his disclosures. The law gives an opportunity to the accused to cross-examine such approvers. A possible beneficiary of this may be the accused involved in the Paragon society reference in which one of the owners/shareholders (Qaiser Amin Butt) has become an approver.”
A change has also been made in Section 36 of the 1999 law. This provision provides indemnity to the state functionaries and NAB officers for actions done in good faith in pursuance of the provisions of the NAO. “Now, if an accused is acquitted by the court on grounds that the case was initiated with mala fide intentions, the person responsible shall be punished with five-year imprisonment. This will discourage NAB officers from independently conducting inquiries/investigations as swords will always be dangling over their heads. Reducing indemnity for conducting inquiries and investigations will certainly tie their hands.”
With an amendment to the application clause (Section 4), the decisions of federal, provincial cabinets, ECNEC or any regulatory body have been excluded from the domain of the NAB. In the appointment of a NAB chairman, the role of the president has been eliminated. Now, the federal government will appoint the chairman whose tenure has been reduced from four to three years.
Commenting on the coalition government’s supposed haste in bringing amendments to the NAB ordinance, former Punjab minister Dr Yasmin Rashid of the PTI says it was aimed at saving the “kins and associates of corrupt politicians like the Sharifs”.
Dr Rashid further says the amendment bill has removed ‘spouse, relatives or associates’ in asset cases to save Maryam Nawaz. “Maryam is a frontwoman of her father Nawaz Sharif in corruption and money laundering cases pending in the NAB.”
Published in Dawn, June 5th, 2022