The National Accountability Bureau Ordinance 1999 (NAB Ordinance) is once again in the crosshairs. The clamour to amend the law is rife. Both the opposition as well as the government are rearing to clip the powers of the Chairman NAB and to truncate the reach of the Accountability Bureau. However, this is not the first time that an effort is being made to take the sting out of the NAB Ordinance. If the past is any guide, the bill will be consigned to one of the special committees of the Parliament. There it will be discussed and deliberated upon extensively but most probably will never see the light of day. This is precisely what happened to the previous efforts to change the NAB Ordinance.

The aim of this article is not to dwell on the motives behind the introduction of the present bill but to critically examine these amendments and to put forward certain salutary recommendations that would make the law more effective, objective and impartial.

The basic aim of the NAB Ordinance is to retrieve ill-gotten wealth in the shortest possible time. The present bill called the “National Accountability (Amendment) Act, 2019” has been introduced by the Pakistan People’s Party and seems to have the tacit support of the present government. The overarching aim of the bill is to curtail the ambit of the NAB and to reduce the draconian powers of the Chairman NAB. In my view it defeats the very objective for which the NAB Ordinance was promulgated.

The bill proposes 11 amendments in the law. The first amendment pertains to regulating the pecuniary jurisdiction of NAB. According to the amended section 5 (n), the NAB will not entertain a case if the amount involved is less than Rs. 500 million (Rs. 50 crores). Although the amendment is in line with the dicta of the superior courts of the country which basically provides that NAB should only investigate mega corruption cases, however, laying down a high pecuniary threshold will make the regional chapters of NAB i.e. NAB KPK and NAB Baluchistan redundant. If one looks at the data, there are hardly any cases being investigated by NAB KPK or NAB Baluchistan which crosses the Rs. 500 million threshold. It will be appropriate if the views of the concerned regions are obtained before the high pecuniary threshold is implemented.

The second amendment proposed by the bill in section 9 (a) (v) of the NAB ordinance is quite divisive. It upends the burden of proof. In order to prove the offence of ‘assets beyond means’ the prosecution will first have to show that the assets held by the accused are the proceeds of corrupt, dishonest or illegal enterprise. This is a sure shot recipe for acquittal and will be a herculean task for NAB. In a white collar crime the identification of the source of the money is always a difficult endeavor and those who indulge in massive corruption are crafty enough to cover their tracks carefully. That is why the concept of plea bargain was incorporated in the NAB Ordinance in the first place. The proposed amendment also violates Article 20 of the UNCAC, an international treaty to which Pakistan is a party. Article 20 of UNCAC clearly provides that member states should consider criminalizing illicit enrichment, which means possession of assets whose source cannot be reasonably explained.

The other important proposed amendment in the law pertains to the arrest of the accused. The bill aims to bring about changes in section 18 and 24 of the NAB Ordinance, which will strip the Chairman NAB of his power to arrest the accused and will bestow this power on the Accountability Court. There is no doubt that the NAB has in the past abused its power of arrest with impunity, but to completely strip the Chairman NAB of his power to arrest an accused person during the stage of inquiry and investigation will amount to overreaching and will veritably make the NAB toothless and ineffectual. In certain scenarios the arrest of the accused becomes imperative for instance if there is a danger that the accused might flee abroad or that he/she is uncooperative or the accused conceals or tampers with the evidence. Instead of divesting the Chairman NAB of his powers from arresting the accused during the investigation stage, a more logical solution would be to seek the permission of the concerned Chief justice of the High Court before an arrest is made. This will assuage the concerns of the accused regarding the impartiality of NAB and will provide sanctity to the proceedings. A similar provision already exists in the NAB Ordinance i.e. section 19 (e) under which the permission of the High Court has to be obtained before an accused is placed under surveillance.

The bill also proposes to change the voluntary return regime as laid down in section 25 (a) of the NAB Ordinance. The option of voluntary return is quite controversial and has been severely castigated by the superior courts. This is because the accused who opts for the voluntary return regime is let off without any penalty. The bill proposes a minor penalty of disqualification from holding a public office for 5 years which in my opinion amounts to a mere slap on the wrist and is not a suitable deterrence. The option of voluntary return is virtually an escape clause for the corrupt and therefore should be completely omitted from the NAB Ordinance.

Despite certain shortcomings in the bill there are a few constructive proposals as well. For instance, the bill proposes to empower the Accountability Court to grant bail. This is a positive step and must be supported as it eases the burden on the High Courts and will save the accused from being incarcerated unnecessarily for long durations. Further, the bill precludes the officials of NAB from commenting on cases which are under investigation. This too is need of the hour, as media trials have become quite rampant and is an anathema, it condemns an accused before he is even tried by the Court and infringes his/her fundamental right to a fair trial.

An important issue that has been completely overlooked by the bill is the indemnification of the accused. What happens when an accused is acquitted after a long drawn out trial? Does he get compensated for the torture and misery to which he is subjected during his ordeal? A NAB trial is in itself a punishment. It irreparably damages the reputation of the accused, deprives him of his livelihood and at the end of the day renders him financially bankrupt. As Benjamin Franklin once said ‘the strictest law sometimes becomes the severest injustice’. There must be an inbuilt mechanism within the NAB Ordinance to provide for such a situation.