New accountability law is toothless, lame duck: NAB

ISLAMABAD: Even the tame and under-pressure National Accountability Bureau (NAB) has rejected in totality the government’s new proposed accountability law, expressing serious concerns about it, calling it toothless and a lame duck.

The NAB says the new accountability bill does not consider bribery as corruption defined under Section 9(a) of the National Accountability Ordinance 1999 (NAO).

The NAB has prepared a detailed comparison of the existing accountability law and the proposed law and sent its reservations to the Ministry of Law, Justice and Parliamentary Affairs for consideration while proposing that the existing anti-corruption laws were more powerful than the proposed law.

According to the comparison document that was prepared by the NAB, a copy of which is available with The News, the new accountability bill ignores the basic philosophy of corruption as envisaged in Section 33B and 33C of NAO 1999.

The Article-5 of the United Nations Convention Against Corruption (UNCAC) says: “Each state party shall develop and implement effective coordinated anti-corruption policies that promote integrity, transparency and accountability.

“Each state party shall endeavour to establish and promote effective practices aimed at prevention of corruption and to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy to prevent and fight corruption.”

According to the NAB, the new Accountability Bill provides a limited scope of international cooperation as the Bill says that chairman NAB or any other authorised person can make a request to foreign jurisdiction for mutual legal assistance but is silent in case Pakistan receives any request from foreign jurisdiction in matters relating to corruption.

The Article-46 of the UNCAC provides a “state-of-the-art’ explanation on Mutual Legal Assistance (MLA) and encourages the State parties to afford one another the widest measure of the MLA in investigations, prosecutions and judicial proceedings and to improve domestic legislation in the light of the provisions of the article.

Through a 17-point comparison between the new proposed accountability bill and NAO 1999, the NAB has pointed out that the news bill applies to holders of public office whereas the NAO applies to all persons/citizens of Pakistan, including the person who are or have been in the service of Pakistan. “The commission would face difficulty in future interventions in terms of tackling corruption in case the matter pertains to private person where public at large has been defrauded,” the NAB viewed.

The NAB was of the view that new bill be extended to whole of Pakistan while the NAO specifically includes the areas of Fata and Pata and in case the bill is approved, it would face legal implication in case the matters pertains to these areas.

The NAB pointed out that there are three stages in criminal prosecution while under investigation, an individual is a “suspect”, under trial he is an ‘accused’, if found guilty, he is convicted but the new proposed bill fails to differentiate between the first two.

The new proposed law considers federal, provincial and local governments as “appropriate government” whereas the NAO provides a diversified definition covering all persons employed by any corporation, bank, financial institution, body, authority undertaking or any other organisation controlled or administrated by these governments while the NAO provides a better solution.

The NAB pointed out that the new proposed law defines assets as any property, moveable or immovable, owned or belonging to an accused while NAO provides a comprehensive concept of ‘assets’ with addition of words, directly or indirectly, whether inside or outside of Pakistan, including the assets held by family members, associates, relatives and ‘benamidars’ relating to the accused.

The NAB also pointed out that the new proposed bill excludes the definitions of terms “judge”, “associates”, “freezing”, “person” and government property, which should be there for clarity of issues while proceeding a case in the court of law.

The NAB pointed out that in the new proposed bill, the process of appointment of chairman is faulty and at the end of the day if no choice is made, whoever’s name happens to be first on the list can be appointed as chairman.

A far important point in the bill is appointment of chairman that is no longer secure, while under the NAO, the chairman could only be removed under the same process that is applicable to the removal of a judge of the Supreme Court as this guarantees him a tenure of four years and the liberty to act without any political pressure but under the new proposed bill, the chairman will remain under constant threat.

The NAB pointed out that the new proposed bill limits the scope for the appointment of chairman as only retired judge of the Supreme Court and a retired federal government officer of grade 22 is eligible to become chairman whereas the NAO provide more reasonable and valid criteria to fill this post by adding a word “equivalent”.

The NAB pointed out that unlike the NAO, the bill fails to provide career security to the officials working under the proposed commission.

The bill excludes the concept of other person as in the NAO and deals with only ‘holders of public office’ as such exclusion would not serve the purpose of across the board accountability and sufferings of public at large in the hands of corrupt in private sector like ‘Double Shah scam’ and housing frauds, could not be tackled under this bill.

The new proposed bill also excludes the concept of active bribery by deleting the word ‘offer; as envisaged in the NAO and in its present shape the bill covers only passive bribery whereas articles-15, 16 and 21 of the UNCAC encourage the state parties to improve their legislation in the light of said articles dealing with active and passive bribery of ‘national public officials’, foreign public officials and officials of public international organisations and private sectors.

The NAB pointed out that the punishment under the new proposed bill has been relaxed from 14-years imprisonment as envisaged in the NAO to seven years whereas disqualification of being a member of parliament is reduced to five years instead of 10-years while the concept of the forfeiting assets has been excluded in the proposed bill.

The bill makes the process of filing a complaint more complex and difficult for the complainant, discouraging the whistle-blowers therein as under the new bill the commission would entertain only those complaints from private persons, accompanied by the attested copy of complainant’s CNIC along-with an affidavit supporting his allegation duly attested by an oath commissioner as well as his postal address. This sort of limitation would badly damage the concept of the whistle blowers in our country where corruption is rampant amongst the holders of public office.

The complaints against seniors by their staff regarding their financial mismanagement could never see daylight in case the bill got approved.

The NAB also pointed out the bill curtails chairman’s powers in procuring banking information by linking it with prior permission of the court as such a provision would only delay the administration of justice as the investigation organ has a limitation of complete inquiry/investigation within a time frame of 90-days.

The NAB viewed that the new proposed bill also curtails powers to seek assistance from foreign jurisdiction, as the scope of the international cooperation has been made limited in the bill as compared to the NAO, like power to make a mutual legal assistance request for freezing, confiscating and disposing of assets in foreign jurisdiction have been removed.

The NAB pointed out that the bill gives an open-handed concession to the accused person during inquiry or investigation the holders of public office could not be arrested, providing them a safe passage to flee the country while for women, corruption has been made a bailable offence in the bill.

The NAB concluded its comparison of the new and previous bills by saying that the spirit of preventive regime has been diluted in the bill limiting the activities under prevention function to only advise and assist without examining the laws, rules and regulations while an important aspect of monitoring of the workable recommendations under prevention regime has been removed from the bill and such a removal would be tantamount to serious repercussions in fighting corruption in the country.