— Senator Swati supports proposal to shift NAB cases to sessions court
— Inclusion of armed forces and judiciary under accountability law yet to be decided
ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) stands divided over the new proposals submitted by the federal government before the parliamentary panel to repeal the National Accountability Bureau (NAB) law, Pakistan Today has learnt.
A source in the party’s top cadre told Pakistan Today that the party’s lawmakers, assigned to look into the government’s proposals to amend the accountability laws, stood divided over certain amendments.
The 12-member committee formed by PTI Chairman Imran Khan to finalise its recommendations will be meeting on Monday. The meeting will also be attended by Babar Awan among other lawyers and some parliamentarians, the source added.
The committee would be given a presentation by Senator Azam Khan Swati who, along with party Vice Chairman Shah Mahmood Qureshi, is a member of the parliamentary panel on NAB laws. The source added that the party’s Secretary-General Jahangir Tareen has taken a strong stance against the government-proposed draft and asked for tougher accountability laws, while Swati has a leaning towards the government-proposed draft.
The source said that the parliamentary panel had agreed upon most of the proposals tabled by the federal government about the basic framework and NAB’s purview, adding that the number of government-proposed amendments was around 36, out of which around eight to ten amendments were termed ‘sensitive’.
According to the source, both Swati and Tareen hold a difference of opinion over the government’s proposal of shifting the onus of providing evidence from the accused to the prosecution.
Tareen recently tweeted: “After the black electoral law passed yesterday, another farce is being planned by N. A new NS-specific NAB law being drafted.” In a subsequent tweet, he said that the government wanted the “Accountability Courts which operate with special powers to be abolished and cases transferred to Session Courts with other normal cases.”
According to the source, Swati believes that there is no harm in adopting the government’s proposal for shifting the onus from the accused to the prosecution to prove assets. He also says that in any trial of an offence under corruption charges, the government’s proposal did not shift the onus on the prosecution.
“In this proposal, ‘it shall be presumed unless the contrary is proved’, the contrary is binding upon the accused to prove his/her innocence. So, the essence of the NAB law remains the same despite a difference of words. As a student of law, I believe there is no major difference,” says Swati.
The source also said that according to Swati, the clause only deals with where the accused has been alleged in the trial on, prima facie, evidence. “It is dealing with a mere prima facie case. There is no beyond reasonable doubt in the draft. If it is beyond a reasonable doubt, then the matter is already resolved. So it is about prima facie case because the prosecution has to prove a prima facie case. Else you can’t frame anyone on a mere witch-hunt,” Swati says. He further says that the prosecution needs to prove whether an offence has been committed.
“While dealing with a heinous and non-bailable offence, you have to prove the two tiers of the due-process. You have to prove whether an offense has been committed and who has committed the offense,” he said, and added, “Shah Mahmood and I have looked into the file and a presumption is there that if resources are beyond recognised means of income, one can assume that the assets are obtained from illicit and corrupt practices,” he added.
Another sensitive matter being discussed is about which court will deal with the NAB cases. Swati again has a leaning towards the government’s proposal to shift the NAB cases to the sessions court, repealing the existing law while Tareen’s inclination is towards the contrary.
“There are two divergent views about this proposal too. Chief justice of the high court will determine that which judge would be the NAB judge. It is the same as was practised in the past too. Now if the court nominates a serving judge of the high court or below, it doesn’t make any difference in my view if the court is given exclusive powers. In my view, the NAB court should be a special court whether the court is located inside NAB premises or not. Tareen, however, says it makes a difference. So the discussion continues,” he added.
Moreover, the definition of public service is also debatable, said the source as it has yet to be decided whether the public service also includes the officials of armed forces and judiciary, which have their own anti-graft mechanisms and thus don’t come under the government’s monitoring.
“We have to define whether the armed forces and judiciary also come under the public service. If it’s in the affirmative, it would mean that army and judiciary would also come under the NAB’s purview,” the source added.
He also stated that the proposal about bail for the accused was also to be discussed, adding that if a case lingered on for a decade, how the detention of a suspect could continue for such a long period. He proposed that there should be a time limit for the prosecution to prove its case, revealing that many in the PTI believed that there should be a time limit.
“We would have to discuss whether or not the corruption cases need to be closed if the prosecution fails to prove allegations after ten years. There are many (in PTI) who believe that such cases need to be closed if the prosecution fails to prove its case after ten years. But the meeting will finalise it,” the source said.
“Tareen says there is a difference but I believe there is no difference. The statutory preview of the court will be determined by the chief justice,” the source added.
“We have to decide on the sticking points, including the NAB chairman’s role, definitions of corruption and corrupt practices, public service, bail procedures etc,” the source said, adding that these sensitive clauses are ‘sticking points’ as there are divisions among various political parties, even also among the PTI.
To a question about why there was a need to repeal the NAB law, the source said that the NAB had become a tool to safeguard the ‘white collar crime’ while it was actually meant to punish the corrupt.
The source also confirmed that the federal government had decided to exclude willful default, cheating and SROs from corrupt practices. “The government has informed the panel that they will not put these clauses to the parliamentary panel and rather the same would be included in the Finance Bill,” the source disclosed.
A document available with Pakistan Today reads: “It is proposed to exclude, from the definition of corruption and corrupt practices offences relating to issue of directives, SROs etc, willful default, cheating, and criminal breach of trust. The offence of ‘willful default’ will be included instead in the financial institutions (recovery of finances) ordinance, 2001.”
The definition of corruption and corrupt practices is also proposed to be amended as shown below:
- A holder of public office or other person covered hereby is said to commit the offence of corruption and corrupt practices:
- If he accepts or obtains from any person or offers any gratification, directly or indirectly other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code 1860 Act (XIV of 1860) for doing or for bearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person; or
- If he accepts or obtains or offers any valuable thing without consideration, or for a consideration which he knows to be inadequate, from or to any persons, whom he knows to have been, or to be likely to be, concerned in any proceeding business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person concerned; or
- If he dishonestly or fraudulently misappropriates or other converts for his own use, or for the use of any other person any property, amount or valuable thing entrusted to him or under his control, or willfully allows any other person so to do or
- If he by corrupt, dishonest or illegal means, obtains or seeks to obtain for himself or for his spouse or dependent or any other person any property, valuable thing or pecuniary advantage or which he is charged, obtained and accretion to his assets or resources for which he cannot satisfactorily account, the court shall presume, unless the contrary is proved, that the accused is guilty of the offence of corruption and corrupt practices and his conviction therefore shall not be invalid by reason only that it is based solely on such a presumption:
New provisions:
(3) There in any trial of an offence under clause (e) of section 18, the prosecution shall first prove beyond reasonable doubt as to what were the known sources of income of the accused at the relevant time and that the acquired assets of the accused were disproportionate to his known sources of income, and only after it is so proved by the prosecution that the onus will shift to the accused to reasonably account for or satisfactorily explain such acquired assets, or to cast doubt on the prosecution case.
Amendment is also proposed in clause (4) as follows:
(4) in any trial of an offence under clause (f) and (g) of section 18, the burden of proof that the accused used his authority, or issued any directive, or authorized the issuance of any policy or statutory rule of order (SRO) or made any grant or allowed any concession, in the public interest, justly, and for the advancement of the purpose of the enactment law or rules or regulation or any other legal instrument under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on the accused:
Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (f) of section 18.
Punishment:
In case the illegal gain is not fully recovered, imprisonment up to 14 years and fine, and if illegal gain is fully recovered, imprisonment up to 7 years and fine.
