In Defence Of The New NAB Law
Amendments to the NAB law seem to be facilitating the masses instead of violation of any of their rights. The insertion of section 33-F has safeguarded the government servants against the arbitrary complaints, by scrutinizing the complaints against them by the scrutiny committee, argues Bakhtawar Jafri.
National Accountability Bureau (NAB) Ordinance 1999 was promulgated during the era of ex-president Pervez Musharraf and was termed a draconian law by many champions of democracy back then. The provision of the ordinance on the presumption against the accused is considered to be the violation of basic rule of the criminal law i.e. innocent until proven guilty.
It is for the accused to prove that he has not taken illegal gratification and is not involved in any corrupt practice. Moreover, the exclusive jurisdiction of the NAB on the offences under this ordinance, accompanied with the power of the chairperson to tender conditional or unconditional pardon to the offenders, may be a probable reason of the misuse of the authority. The indemnity clause provides immunity to the NAB authorities for the actions taken under the umbrella of the said ordinance, making the NAB authorities more powerful and invincible.
It is argued that in the past, the said attributes of the ordinance had made the military regimes use the National Accountability Bureau against the civil leaderships. In addition to all other loopholes, the clause of plea bargain is alleged to be a blackmailing clause. The practice of accepting a bargained amount from the accused, before his induction into a trial and completion of the investigation, does not make any sense on the legal grounds. Hence, the amendments in the NAB ordinance 1999 have been on the to-do list of the democratic governments for a long time.
The amendments of 2019 in the NAB ordinance are met with great distaste and revulsion. This wave of disapproval is more due to the propaganda of the opposition, and has less to do with the actual amendments. The amendments seem to be facilitating the masses, than violation of any of their rights.
The insertion of section 33-F has safeguarded the government servants against the arbitrary complaints, by scrutinizing the complaints against them by the scrutiny committee. This amendment is much-needed as it will discourage the culture of preferring complaints against the government servants for settling personals scores.
Similarly, the transfer of the cases to the relevant departments relating the matters of taxation in question would minimize the burden on the NAB courts.
The mechanism of check and balance on NAB is also introduced in these amendments, by introducing a ‘complaint redressal mechanism’ against the bureau. This will ensure the fair and judicious exercise of authority by the NAB officials. Furthermore, the pecuniary jurisdiction of the NAB courts is defined for the very first time in the NAB ordinance. It is added via amendments of 2019 that NAB will only take the cognizance of the issues exceeding an amount of Rs 500 million, and the matters relating any lesser amount would be dealt by the ordinary penal laws under the respective authorities and courts.
NAB ordinance is a special law and special law deals with the specific subject matter or the specific class of the offences. The mention of the pecuniary jurisdiction in the NAB ordinance is akin to many other civil and criminal laws in practice in Pakistan. The pecuniary, territorial and subject matter jurisdictions are considered the part and parcel of the procedural laws. NAB ordinance is both adjective and substantial law. It defines offences, penalties and the procedure.
The limitation put in the ordinance, on pecuniary and subject matter grounds are for the sake of speedy trials and decreasing the burden of the courts. The amendments are on exempting any person against any liability, they are just specifying the cases to be tried by NAB courts and the cases to be taken up by other respective courts in case of the any corrupt practices and corruption related offences. These amendments are an attempt to prevent the misuse of the law, but still they are not sufficient to meet the needs of the fair trial. I hope that more amendments would be made in the provisions related the issues of investigation, remand, plea bargain and presumption of guilt.
The author is a Criminal lawyer, based in Gujrat. LL.B gold medallist from University of Gujrat, LL.M international law from international Islamic University, advocate high court, president Street Law Clinic society, legal researcher and Max Planck Alumnus.