The government is all set to promulgate amended National Accountability Bureau (NAB) Ordinance, 2019 with a view to insulating bureaucracy and businessmen from the fear of NAB investigation.
The Ordinance prepared by Ministry of Law and Justice had sought approval of Prime Minister Imran Khan prior to sending to Cabinet Division to get a nod of cabinet members through circulation. According to reports, after the Ordinance is promulgated NAB will no longer be allowed to take action against government employees.
One of the clauses of the proposed Ordinance clearly states that the property of government employees cannot be frozen without a court order. Furthermore, if NAB fails to complete its investigation and file a reference against the accused within three months, the accused will be entitled to bail.
In addition, NAB will now only be able to proceed in corruption cases of Rs500 million and more. The proposed amendment in the Ordinance suggests that NAB's jurisdiction over matters relating to tax, stock exchange and IPOs may be curtailed.
The Federal Bureau of Investigation, Securities and Exchange Commission of Pakistan and building control authorities will be the sole authorities tasked to act on all such matters. In addition, for land evaluation purposes, NAB will seek guidance from the Federal Board of Revenue or the District Collector.
On October 10, 2019, Secretaries Committee considered a report submitted by a sub-committee on National Accountability Bureau and Bureaucracy. The members of the Secretaries' Committee appreciated the efforts of the Sub-Committee in putting together an "all-encompassing" report, getting in to the core issues and problems coming in the way of better service delivery due to arbitrariness of prevailing accountability law. The report was unanimously endorsed by the Secretaries' Committee.
The Committee also resolved that the present government has come to power with the agenda of establishing an egalitarian society based on the rule of law and economic and social justice. It is committed to building a welfare state where merit and transparency are guaranteed to all citizens. The current leadership strongly believes that an ineffective state structure has generated a crisis of governance over the years, which has effectively marginalized everyone in the country, except a small elite.
The government has, therefore, taken upon itself a gigantic task of a complete socioeconomic transformation of the country. This task requires a coherent and unified effort by all elements within the state especially the civil service.
The report further stated that the economic transformation envisaged by the government requires civil servants to be innovative, proactive, willing to take risk in good faith, and out-of-the-box thinkers. Such decision-making can, however, take place only in a fair and congenial environment, free from the fear of unnecessary harassment and retribution. However, currently there are no decisions that can be taken without a tacit risk of being questioned by the accountability institution at a later stage.
According to a report, recently, NAB has taken to questioning the decisions made by the collective wisdom of the Cabinet and its Committees. Indifference towards legitimate Executive Authorities will discourage innovation and ingenuity and promote a risk-averse approach among civil servants and senior government functionaries.
The adverse effects of these developments would eventually be felt by the public at large, as the government will not be able to implement its envisaged agenda, which requires strong commitment, initiative and drive on the part of government functionaries at all levels.
It was observed that National Accountability Bureau was created to check corrupt practices and to ultimately improve governance in the country. However, an objective assessment indicates that the peculiar implementation of the law has led to a situation where it is more of a hindrance to better service delivery and good governance than being a catalyst.
The committee noted that there were no two opinions that the country has suffered an irreparable loss due to corruption and corrupt practices and those responsible for it should be brought to hook.
The accountability should, however be fair and just and should aim at nabbing those who have benefited at the expense of the country. Unfortunately, in its pursuit of the corrupt, the Bureau has started questioning everyone involved in the decision-making process disregarding the fact that the decisions are taken in good faith based on the information available at a certain time.
The report stated that it is worrisome to note that actions against the civil servants, in many cases, are based, not on the material evidence of a wrong doing, but on the exercise of judgment in a particular case, which may appear to be flawed at a future point.
Ironically, most of the investigation officers of NAB do not have sufficient experience and knowledge about the cases they are handling. Criminalization of policy decisions would lead the civil servants to over cautiousness and indecision, resulting in further slow-down of government processes and projects; there are clear signs that this is already happening.
While the civil service is in favour of strict and non-sparing accountability, the practice of arrest and summons on trivial grounds, aimed at humiliating well respected civil servants is against the principles of good governance, hence not acceptable.
The tragic episodes of arrest and disgrace of retired officers will continue to haunt the officers and their families for a long time. It is deplorable that Section 36 of NAO grants indemnity to actions taken by NAB in good faith, whereas, all actions taken by other government functionaries are very frequently put under scrutiny for malafide intent, "though Section 23 A of Civil Servants Act provides similar indemnity to the Civil Services as well".
The Secretaries Committee observed that despite verbal assurances in the past, there seems to be no let-up towards civil service as, even today, the officers are summoned and intimidated without substantive evidence against them. The need of the hour is to transform such assurances into a legal protection by making substantive amendments in the law.
The recent announcement with regard to cases related to tax evasion and bank default appears to have given some relief to the business community, however, it also hints at an arbitrary redefinition of jurisdiction. Any such realignment of the mandate of NAB, whether to limit or to extend its jurisdiction, in the absence of any change in the relevant law, is questionable and reinforces the perception that NAB is selective in its approach.
All this does not help in establishing the Bureau's credibility as a fair and independent accountability watchdog with the ability to ensure professional investigation and prosecution of corrupt elements.
In view of the foregoing, it would be in the fitness of things, if the provisions of the accountability law are revisited before it permanently impairs the work ethics of the civil service making it a risk-averse, sluggish, over-cautious, and apathetic bureaucracy putting public interest on a back burner, contrary to the vision of the government of transforming it into a vibrant, intelligent, hardworking and passionate public service. Indiscriminate use of authority by NAB officers by issuing summons and warrants of senior functionaries on issues related to policy formulation is completely intolerable.
The forum identified some important aspects of the law which require immediate redressal/remedy such as defining a threshold for corrupt practice to be cognizable by NAB; conditions covering arrest of a public servant; restrictions on grant of remand and bail; cognizance by NAB on the basis of procedural lapses; and linkage between misuse of authority and corresponding increase in assets.
The amendments in the law could take time therefore some actions are required to be taken immediately to address the grievances within the current legal framework. Setting up of a screening committee, out-side the purviews of the NAB, which shall scrutinise the matters before they are taken cognisance of, by the Bureau was, thus, strongly recommended.
The Secretaries Committee, therefore, unanimously recommended a thorough review of the NAB law to make the Bureau an effective and efficient accountability institution, while at the same time ensuring due process and safeguards of the rights of those taking decisions in good faith using their best judgment and exercising legitimate authority.
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