Pakistan Tehreek-e-Insaf (PTI) on Tuesday told a parliamentary panel on National Accountability Bureau (NAB) law that it rejects all the previous recommendations and demands amendments in the existing anti-graft body law.
Minister for Law and Justice, Zahid Hamid, who is also the chairman of the parliamentary panel, told reporters after the meeting that till previous meeting there was complete consensus over the sections approved by the committee of proposed draft of accountability law but PTI member Shireen Mazari, who replaced Shah Mehmood Qureshi as member of the committee, Tuesday told the meeting that her party did not agree to the approval made by the committee in its previous meetings.
He said that PTI wants amendment in the existing NAB law instead of bringing a new law. "In the previous meetings, it was decided that NAB would be replaced with National Accountability Commission (NAC) but now PTI adopted the stance that NAB should not be replaced with NAC.
The minister said that PTI has presented some objections with reference to the new bill. The PTI members told the committee that they would review the existing law as well as present their amendments in the next meeting, he said. The minister said that the committee has so far held 14 meetings and approved majority of the clauses of the proposed bill except some four to five important points including definition of public office holder, corruption and corrupt practices, punishment, the retrospective effect of proposed NAB law, jurisdiction of proposed law and trial procedure.
"The committee has approved majority of the clauses of the proposed bill but intentionally deferred these important points aimed to approve them with complete consensus at the end," he said. He also rejected the impression that the committee has completely changed the existing NAB law. Many of the clauses approved by the committee are present in the existing law, he said.
Hamid said that the committee held discussions over definition of public office-holder but deferred it till next meeting because of the absence of representatives of Pakistan Peoples Party (PPP) from the meeting. To a question about bringing judges and generals under the ambit of accountability, he said that no suggestion is under consideration in this regard. However, he said that the definition of public office-holder is under consideration in the parliamentary committee which is aimed at deciding which institution would come under the ambit of proposed accountability bill.
According to the summary of PTI objections to the new NAC bill 2017, the contents of the NAC Bill show it does not introduce a single measure of reform that would improve the current accountability process or bring corrupt elements to task. In fact, a number of the proposed changes are actually aimed primarily at hampering the process and making it easier for public office-holders to get away with corruption.
The major points due to which PTI has rejected the proposed bill included; (i) removal of clarity/specificity regarding new law coming into force. Unlike the NAO which specifically stated in Section 2 "it shall come into force at once and shall be deemed to have come into force from the first day of January 1985," the NAC Bill Section 1(3) simply states "it shall come into force at once and shall apply to all persons who are or have been holders of public office in the past. ..." By removing the specific timeframe of Section 2 of the NAO, the new bill brings a biased subjectivity and opens the door for political considerations overriding an unbiased approach towards accountability to arrest corruption.
(ii) Creation of an Accountability Investigation Agency (Chapter III): The Chapter III of the NAC Bill provides for the creation of an independent Accountability Investigation Agency ("Agency"). The purported purpose of this appears to create a separation between the investigation and prosecution powers of the commission. This so-called separation is both illusory and illogical, especially since the Agency or any of its officers do not even have powers to arrest any person being the subject of an inquiry or investigation without the prior written approval of the chairman of the commission (or a court). The commission also controls the prosecution by appointment of the chief prosecutor and other prosecutors under Chapter IV of the NAC Bill.
Furthermore, to create (even an illusory) separation between the investigator and the prosecution in this law, and in the context of the eradicating corruption, appears to be illogical. If anything, this legislation should have tried to introduce measures to enable NAB to effectively prosecute public office holders accused of corruption.
(iii) Punishment for Corrupt Practices (Section 19): Effectively, the punishment under the NAO for corruption is a maximum term of 14 years in prison and all of the convict's illegal gains are forfeited. Under the NAC Bill, by introduction of Section 19(1) and the proviso thereto, the maximum punishment for corruption remains 14 years of rigorous imprisonment but where all of the illegal gain has been fully recovered, the maximum punishment for the offender is reduced to 7 years.
(iv) Voluntary Return (Section 20): The NAC proposes to retain the controversial voluntary return scheme whereby corrupt public office-holders, once caught completely red-handed, may offer to return their illegal gains and walk away completely free. The use of this provision under the NAO has been controversial and has not only been the subject of public outcry but the Supreme Court has also expressed its displeasure over such practices. Furthermore, historically there have been cases where persons have used voluntary return to set themselves free after forfeiture of only a fraction of their apparent illegal gains.
(v) Arrest and Bail (Section 22): Under Section 9(b) of the NAO, the jurisdiction of all courts to grant bail to an accused of any offence under the ordinance is barred. The practical effect of this provision, as has been interpreted by the superior courts of Pakistan, is that the NAB court, which tries the accused, does not have jurisdiction to grant bail, however, the High Courts (and the Supreme Court) in exercise of their Constitutional (discretionary) jurisdiction, may grant bail to persons accused of corruption where the superior courts come to a conclusion that the ends of justice are not being met. The provisions of the NAO, as interpreted by judgments of the superior courts, created a delicate balance, which provided safeguards against both the misuse of political influence to avoid justice as well as political victimization.
Section 22 of the NAC Bill destroys this delicate balance by removing the bar on the trial court to give bail to persons accused of corruption under this law. Furthermore, under the proviso to subsection (2) of Section 22, an accused person that has been detained in custody for a continuous period of one year and the trial has not been concluded, the accused is entitled to the concession of bail as of right. Considering the fact that in practice it is extremely unlikely for any NAB trial to conclude within a year, this provision will ensure that every person accused of corruption is released on bail.
In addition, the NAC Bill unlike the NAO, does not exclude the concessions with regard to bail that are present for ordinary criminals under the CRPC, which were not previously available to those accused of corruption, now being available to them.
(vi) Trial of Offences (Section 23): Under Section 23(1) read with Section 2(j) of the NAC Bill, all offences under this legislation will be tried by the court of a serving district and sessions judge or additional district and sessions judge who is qualified to be appointed as a judge of a high court, to be nominated by the chief justice of the high court for a period of three years. This attempts to replace the dedicated accountability court of the NAO meant to exclusively try offences under the NAO. Since the court envisaged under the NAC bill provides for serving district and sessions judges (and additional judges) it remains unclear whether these courts will serve as dedicated anti-corruption courts. If the courts notified under the NAC bill will also continue to hear ordinary cases, the accountability process will face further hindrances and delays. The need for dedicated accountability courts is essential.
(vii) Pardon (Section 26): The NAC bill also retains the controversial power of pardon granted to the commission without adequate judicial or parliamentary oversight.
(viii) Abatement of Proceedings (Section 51) under Section 51 of the NAC Bill: Any proceedings against the holder of public office accused of an offence of corruption and corrupt practices shall abate after ten years if the inquiry, investigation or trial could not be concluded during that period. Such a provision was not contained in the NAO. The inclusion of Section 51 in the NAC Bill clearly exposes the farce of a "zero tolerance" policy towards corruption and completely defies the principles of justice. By virtue of this provision, a person who may clearly be guilty of looting public money and abuse of power can go free as a result of delay in his trial, which is not uncommon in Pakistan's criminal justice system. Effectively, this legislation without addressing the cause of delay wants to give the benefit thereof to the accused especially since the language of Section 51 is vague and troublesome. It does not expressly state how the ten years are to be computed.