ON 3 July 2023, the Acting President signed the NAB (Amendment) Ordinance 2023 which included several significant revisions to sections 14-A, 24, 26, 28, 33, and 36 of the National Accountability Bureau Ordinance, 1999. According to Article 89 of 1973 Constitution, the new Ordinance of 2023, which further amends the NAB law, has only 120 days to take effect. However, it has made significant changes to sections 14-A, 24, 26, 28, 33, and 36 of the NAB law, including shifting the burden of proof for the presumption of guilt and innocence to the accused, which was changed and omitted through the National Accountability Bureau (NAB) Amendment Bill 2022.
The new amendments also now allow NAB for the arrest of an accused person to be held on physical remand for 30 days instead of 14 days. The NAB Chairman will also have the powers to order their arrests as a result of the accused’s lack of cooperation during the investigation stage, and he or she may choose to name some of the accused as approver in the case against the other co-accused. The current amendments through this new Ordinance seemingly have not only changed the federal government’s earlier position on several occasions on NAB law and its working but have also given the Chairman NAB more authority.
Earlier, the federal government passed the National Accountability Bureau (NAB) Amendment Bill 2022, which included amendments to sections 4, 5, 6, 7, 8, 9, 10, 14, 15, 16, 18, 21, 23, 24, 25, 26, 28, 31, 32, 33, and section 34 of the NAB law, in an effort to neutralize and tone down the NAB law with respect to their goals. The President declined to provide his approval, but the current federal government passed the National Accountability Bureau (NAB) Amendment Bill 2022 during a joint session of Parliament on May 15, 2022. The federal government made these amendments through the National Accountability Bureau (NAB) Amendment Bill 2022 shortly after taking office in 2022, relying heavily on Supreme Court observations that the National Accountability Bureau Ordinance, 1999 was being used for political engineering, according to them, that it was a black law, and that the NAB was being used for political purposes. However, these modifications were promptly contested before the Supreme Court under Article 184(3) of the Constitution and the issue is currently pending a ruling after multiple hearings, and the matter has been again re-fixed on 18th August in the Supreme Court.
While examining the NAB law, one can easily come to the conclusion that while the Accountability Bureau’s founding in 1999 may have had good intentions, but ultimately it started and went in the direction of fixing some people or some classes in order to further the agenda of the top, which has also been reflected in various legal amendments and a number of cases, and observations of superior courts. The NAB law, which was established in 1999, had a broad scope and unrestricted discretion, allowing it to recognize offences committed as of January 1, 1985, to initiate an investigation into a person based solely on the standard of their financial resources being out of proportion to their known sources of income and standard of living, and to order the freezing of the assets of the accused. Further, the most significant was moving the burden of proof from the prosecution to the accused with a 90-day remand and permitting the chairman to serve as the approver at any level of inquiry, investigation, or trial. This was accomplished by accepting a plea agreement even after authorizing the investigation. Despite the creation of this agency, there is no denying that the country’s level of transparency in governance has not grown, but the corruption index has increased.
There is no cavil with this proposition that the Accountably Law was created in the above context, and ever since, amendments have been made from time to time that appear to be person- or class-specific, including those made in 2021,2022 and 2023 in NAB law. There is no concept or legal space available in the law that supports person- or class-specific legislation, and many identical such person specific or class specific have been struck down by Supreme Court. The most recent changes made by NAB Ordinance 2023 legally seemingly are yet another perfect instance of subject- or person-specific regulation taking a U-turn from its earlier position on the subject.
We as a nation need an independent anti-corruption watchdog because, despite everything, it is crucial to have and maintain transparency for enhancing the rule of law, the supremacy of the Constitution, equality before the law, and for good investment and the economy. Even in many judgments, the superior courts have made rulings about the prosecution and working; specific instructions have been provided to enhance working. Therefore, we must understand that until the entire law is redrafted through Parliament after discussion by adding contemporary requirements and strategies in law to deal with white-collar crimes, corruption, and corrupt practices as well, the patchwork in the NAB law would not address the real issues of corruption and legal controversies in the future. Therefore, just as other nations have similar agencies, Pakistan must have a single national anti-corruption agency with new legislation with beyond the class and person specific agenda.
Additionally, there is a need to disband various government agencies that deal with white collar crimes and corruption on the federal and provincial levels because of conflicting mandates and a long history of underperformance. Therefore, these organizations ought to be combined under a single statute and a single National Crime Agency to combat all forms of corruption, corrupt behaviours, and white collar crimes across the nation through merit-based hiring and rigorous investigation techniques best prosecution with early conclusion of trial by expert judges. We should keep in mind that until we as a nation take significant efforts for transparency and the rule of law, Pakistan and its citizens will not thrive and have a respectable place in the comity of nations.
—The writer is practicing Advocate of Supreme Court. He has earlier served as Chairman Customs, Excise and Sales Tax Appellate Tribunal, Senior Advisor Federal and Tax Ombudsman.
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