As well as instituting immunity from prosecution for government functionaries, the NAB (Amendment) Ordinance, 2021 seems to bring major relief to the Pakistan Peoples Party (PPP) leadership in existing accountability cases.
The Pakistan Tehreek-i-Insaf (PTI) government has promulgated a presidential ordinance to give immunity to the government functionaries, and members of bureaucracy and the business community. The opposition criticizing the temporary legislation, but a section of the opposition has since toned down its criticism.
The law has slightly extended the tenure of incumbent chairman National Accountability Bureau (NAB) for a period of 04 months, and enables a second term in office for the sitting chairman. The Ordinance amended subsection (b) of section 6 of the National Accountability Ordinance (NAO) to give extension to the chairman NAB by excluding the word non-extendable from the statue. It however intact the proviso that made the consultation of the opposition leader and the leader of the house but it stated that the President will consult both of them.
It increased the role of the opposition as well as enhanced the parliamentary oversight as it provided a forum of 12 members Parliamentary Committee in case the consultation of the PM and the opposition leader would turn futile exercise.
Observers say the drastic changes in the law have defanged the anti-corruption watchdog, at least for the ruling party.
The most salient feature of the ordinance is that it excludes the federal and provincial cabinets, business community, collective decisions of the Committees or Sub-Com- mittees, Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working Party (CDWP), Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP), and the State Bank of Pakistan from the ambit of NAB.
As per the ordinance, “all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation” will be dealt in accordance with the revenue or banking laws and will be transferred from the accountability courts to the courts of competent jurisdiction.
Besides the ruling Pakistan Tehreek-i-Insaf (PTI), the other biggest beneficiary of the law is the Pakistan Peoples Party (PPP) since the main leadership of the PPP including former President Asif Ali Zardari facing references that related to the financial or procedural irregularities and decisions of either cabinet, or its auxiliary committees.
Interestingly, even before the promulgation of the ordinance, Mr Zardari was seeking transfer of Park Lane reference to the Banking Court since it was related to the defaulting the bank loans.
Initially, the cases against Mr Zardari were being heard by the Banking Court of Karachi. However, pursuant to the investigation into the fake accounts case as was directed by the Supreme Court, the case was transferred to NAB, where it gave birth to about a dozen references.
Law experts believe some of these cases might be dropped in the light of the newly promulgated ordinance, while others would be transferred from the accountability courts to either Banking Courts or Federal Board of Revenue (FBR), since the government has recently empowered the latter with the power to make arrests.
Chief Minister Sindh Syed Murad Ali Shah, will be another beneficiary of the ordinance. Though, he criticized the law at the outset while he appeared before the accountability court of Islamabad a couple of days after the promulgation of the ordinance, he toned down his criticism later on by saying that he would read the official version of the ordinance first to give an appropriate response.
The main opposition Pakistan Muslim League-Nawaz (PML-N) however strongly criticizing the law, since it brings no relief to its main leadership including Mian Nawaz Sharif, Shahbaz Sharif, and even Maryam Nawaz, the Mian family.
Unlike the references against the mainstream leadership of PPP which are of the financial and procedural irregularities, the PML-N leadership has been implicated in the references based on accumulation of assets.
The new law does not bring any concession for the accused facing assets references.
The law defined asset as “all kinds of property owned, controlled by or belonging to an accused, whether directly or indirectly, or held as benami in the name of his spouse, relatives, associate, or any other person, whether within or outside Pakistan, which he cannot reasonably and lawfully account for.”
However, the PML-N leaders like former Prime Minister Shahid Khaqan Abbasi, former Interior Minister Ahsan Iqbal and a few others are likely to benefit from the ordinance since cases against them are not related to accumulation if assets, but pertain to not adhering to the relevant rules.
The ordinance enhanced the authority of the Prosecutor General (PG) NAB and empowering him of playing crucial role in advising chairman NAB to filing or withdrawing any reference from the court.
Interestingly, the government has extended the term of the incumbent PG Syed Asghar Haider for another three years, to which end President Dr Arif Alvi promulgated an unprecedented two-line ordinance.
Haider, a former judge of the Lahore High Court, was appointed NAB prosecutor general in January 2018 for a period of three years. The NAB law clearly bars an extension in the tenure of prosecutor general. Section 8(a)(iii) of the National Accountability Ordinance (NAO) says: “The Prosecutor General Accountability shall hold office for a [non-extendable] period of three years.”
However, President Alvi through an ordinance amended the said provision as “the Prosecutor General Accountability shall hold office for a period of three years and shall be eligible for reappointment for a similar term or terms.”
Besides, it also allowed the accountability court the power to grant the bail to any accused. Under the existing NAB’s law, there is no provision of granting bail to the accused person as an under custody suspect could only apply for the bail after expiry of 90 days remand that too under the extraordinary jurisdiction of the high court under Article 199 of the Constitution that empower the high court to enforce fundamental rights.
The ordinance enabled the appointment of retired judges of the high court and sessions court as accountability judge. In addition, it provided that the sessions judge and the additional district and session judge may also be designated as the judge accountability court with the consent of the chief justices of the high courts concerned.
Though the PTI government has initially rejected to take the opposition leader on board for consultation on the new chairman NAB, federal ministers, as well as the attorney general, have since expressed possibility of taking the opposition on board.
Information Minister Fawad Chaudhry after the cabinet meeting of 5 October announced the government would be introducing an ordinance for the appointment of the National Accountability Bureau’s chairperson in an attempt to fill the “lacuna” in the law that made it mandatory to consult the leader of the opposition on the matter.
He ruled out the possibility that PML-N President Shahbaz Sharif, the current leader of the opposition in the National Assembly, would be consulted on the appointment of the NAB chief.
“I still think that the opposition should change their leader so that we can hold talks on the matter,” the minister said, adding that the government was firm on its stance that Shahbaz would not be consulted since he had been accused in NAB cases.
The minister said the ordinance would elaborate on how the anti-graft watchdog’s head was to be appointed if the leader of the opposition was accused in corruption cases.
The government suggested that instead of the Leader of the House and the Opposition Leader, a committee comprising lawmakers from both sides could deliberate upon the appointment of new chairman NAB.
The episode is reminiscent of how PTI government was initially reluctant to give the chairmanship of the Public Accounts Committee (PAC) to Shahbaz Sharif on the same pretext but changed its stance later on. Shahbaz Sharif ultimately quit the chairmanship for Rana Tanveer Hussain, a senior member of the PML-N.
