Says proposed bill ‘does not introduce single measure of reform that would improve current accountability process’
ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) has rejected the majority of the ‘National Accountability Commission Bill 2017’ proposed by the Pakistan Muslim League-Nawaz (PML-N) government, terming it another effort by the government to muzzle the accountability process, while claiming that not a single reform has been proposed to cement the accountability process.
In a detailed response submitted with the Parliamentary Committee on Accountability laws—a copy of which is available with Pakistan Today—Dr Shireen Mazari of PTI contended that the contents of the bill show it does not introduce a single measure of reform that would improve the current accountability process or bring corrupt elements to the task.
“In fact, a number of the proposed changes are actually aimed primarily at hampering the accountability process, making it easier for public office holders to get away with corruption. Major points why PTI has rejected this NAC bill,” the rejoinder said.
Regarding the government’s proposed bill, the PTI rejoinder said that, unlike the NAO, which specifically stated in Section 2 “it shall come into force at once and shall be deemed to have come into force from the first day of January 1985,” the NAC Bill Section 1(3) simply states “it shall come into force at once and shall apply to all persons who are or have been holders of public office in the past…”
“By removing the specific time frame of Section 2 of the NAO, the new bill brings a biased subjectivity and opens the door for political considerations overriding an unbiased approach towards accountability to arrest corruption,” the statement said.
About the creation of an Accountability Investigation Agency (Chapter III), the PTI said the chapter III of the NAC bill provides for the creation of an independent Accountability Investigation Agency.
“The purported purpose of this appears to be to create a separation between the investigation and prosecution powers of the commission. This so-called separation is both illusory and illogical, especially since the Agency or any of its officers do not even have powers to arrest any person being the subject of an inquiry or investigation without the prior written approval of the chairman of the commission (or a Court). The commission also controls the prosecution by appointment of the chief prosecutor and other prosecutors under Chapter IV of the NAC bill”.
On punishment for corrupt practices (Section 19), the PTI stated the punishment under the NAO for corruption is a maximum term of 14 years in prison, and all of the convict’s illegal gains are forfeited.
“Under the NAC bill, by introduction of Section 19(1) and the proviso thereto, the maximum punishment for corruption remains 14 years of rigorous imprisonment, but, where all of the illegal gains have been fully recovered, the maximum punishment for the offender is reduced to 7 years,” argued the PTI.
About the proposed amendments in voluntary return (Section 20), the government has proposed to retain the controversial voluntary return scheme, whereby corrupt public office holders, once caught completely red-handed, may offer to return their illegal gains and walk away completely free.
“The use of this provision under the NAO has been controversial and has not only been the subject of public outcry but we have also seen the Supreme Court express its displeasure over such practices. Furthermore, historically, we have seen cases where persons have used voluntary return to be set free after forfeiture of only a fraction of their apparent illegal gains,” says PTI.
About arrest and bail (Section 22) of the accused, the PTI says that under Section 9(b) of the NAO, the jurisdiction of all courts to grant bail to an accused of any offence under the ordinance is barred. The practical effect of this provision—as has been interpreted by the superior courts of Pakistan—is that the NAB Court, which tries the accused, does not have jurisdiction to grant bail, however, the high courts (and the Supreme Court) in exercise of their constitutional (discretionary) jurisdiction, may grant bail to persons accused of corruption, where the superior courts come to a conclusion that the ends of justice are not being met.
The provisions of the NAO—as interpreted by judgments of the superior courts—created a delicate balance, which provided safeguards against both the misuse of political influence to avoid justice as well as political victimisation.
“Section 22 of the NAC bill destroys this delicate balance by removing the bar on the trial court to give bail to persons accused of corruption under this law. Furthermore, under the proviso to subsection (2) of Section 22, an accused person that has been detained in custody for a continuous period of one year and the trial has not concluded the accused is entitled to the concession of bail as of right,” said the party.
For trial of offences, Section 23(1) read with Section 2(j) of the NAC Bill, all offences under this legislation will be tried by the court of a serving District and Sessions judge or Additional District and Sessions judge, who is qualified to be appointed as a judge of a high court, to be nominated by the Chief Justice of the high court for a period of three years. “This attempt to replace the dedicated Accountability Court of the NAO is meant to exclusively try offences under the NAO. Since the Court envisaged under the NAC bill provides for serving District and Sessions judges (and additional judges), it remains unclear whether these courts will serve as dedicated anti-corruption courts”. If the courts notified under the NAC bill will also continue to hear ordinary cases, the accountability process will face further hindrances and delays. The need for dedicated accountability courts is essential, the PTI added.
About the proposed pardon to accused under Section 26, the NAC bill retains the controversial power of pardon granted to the commission without adequate judicial or parliamentary oversight.
On abatement of proceedings, Section 51 of the NAC bill provides that any proceedings against the holder of public office accused of an offence of corruption and corrupt practices shall abate after ten years if the inquiry, investigation or trial could not be concluded during that period. Such a provision was not contained in the NAO. “The inclusion of Section 51 in the NAC Bill clearly exposes the farce of a ‘zero tolerance’ policy towards corruption and completely defies the principles of justice. By virtue of this provision, a person who may clearly be guilty of looting public money and abuse of power can go free as a result of a delay in his trial, which is not uncommon in Pakistan’s criminal justice system,” said PTI.
Effectively, this legislation, without addressing the cause of the delay, wants to give the benefit thereof to the accused, especially since the language of Section 51 is vague and troublesome. It does not expressly state how the ten years are to be computed, the PTI rejoinder concluded.
After the session ended inconclusively, Law Minister Zahid Hamid said that the PTI wants NAB to be retained. He also added that the government does not support the inclusion of the judiciary and the armed forces in the ambit of the proposed commission.
Meanwhile, the PPP has suggested that the commission should only hold powers for federation and federal employees, while provinces should be able to make their own accountability laws.
