Govt amends law to limit anti-graft body’s powers
President Dr Arif Alvi has promulgated the NAB (Amendment) Ordinance 2019 in a move to limit the sweeping powers of the anticorruption watchdog to act against any individual accused of financial corruption at will.
The development has triggered a debate with some analysts calling it “NRO-Plus”.
The NRO, or National Reconciliation Ordinance, was a law introduced by former military ruler Pervez Musharraf in October 2007 to drop hundreds of cases against politicians.
The new law offers more protection to public office-holders or government officials while at the same time excludes several financial sectors from the purview of the National Accountability Bureau (NAB).
Under the ordinance, the government mandates the NAB chairman to submit a report on complaints against the bureau to the federal government.
Earlier, the NAB chief used to submit such a report to the president.
It says that upon the promulgation of the ordinance, inquiries and investigations shall stand transferred to the respective authorities or departments which administer the relevant legislation of taxation, levies or imposts in question.
Trials shall stand transferred from the relevant accountability courts to the criminal courts which deal with offences under the respective laws pertaining to taxation, levies, or imposts in question.
With regard to procedural lapses in any government project or scheme, it says that no action under the ordinance shall be taken against any holder of public office unless it is shown that the holder of public office has materially benefited by gaining any asset or monetary benefit which is disproportionate to his known sources of income, or where such material benefit cannot be reasonably accounted for, and there is evidence to corroborate the acquiring of such material benefit.
Importantly, it reads, no action under the ordinance shall be taken against any holder of public office in any matter pertaining to the rendition of any advice, opinion or report, unless it is shown that the holder of public office has materially benefited by gaining any asset or monetary benefit which is disproportionate to his known sources of income, or where such material benefit cannot be reasonably accounted for.
Surprisingly, the ordinance states that the valuation of immovable properties, for the purposes of assessing as to whether a holder of public office has assets
disproportionate to his known sources of income, shall be reckoned either according to the applicable rate prescribed by the district collector or the Federal Board of Revenue (FBR), whichever is higher.
“No evidence contrary to the latter shall be admissible,” it adds.
It also states that an act done in good faith and in discharge of duties and performance of official function shall not, unless there is corroborative evidence of accumulation of any monetary benefit or asset which is disproportionate to the know sources of income or which can’t be reasonably accounted for.
The ordinance makes it mandatory for the NAB to obtain approval of a scrutiny committee, comprising the NAB chairman, the cabinet secretary, the Securities and Exchange Commission
of Pakistan (SECP) chairman, the FBR chief, and a law ministry representative, before acting against any government official.
It further states that the NAB would not seize property of government officials without the orders of the court.
If the national graft-buster cannot complete an investigation against a suspect within three months, the accused would be entitled to bail, it added.
According to the amendment, the NAB would now only be able to proceed in corruption cases worth Rs500mn or more. Earlier, the minimum was Rs50mn.
The NAB jurisdiction over matters relating to tax, stock exchange and IPOs has been curtailed.
The FBR, the SECP and building control authorities would be the sole authorities mandated to act on all such matters.
Under the ordinance, NAB officials have been barred from speaking to the media on an inquiry or investigation before the filing of a formal reference.
The amendments in the NAB law are likely to set off new political controversies, since they especially focus on curtailing NAB’s powers with regards to public office holders facing allegations of misuse of authority or procedural laps in government’s scheme and projects.
“The NAB is virtually ‘over’ after the [amendment to the] ordinance,” said Ashfaq Yousuf Tola, a member of the Tax Reforms Implementation Commission.
He said the NAB ordinance and an ordinary law are poles apart.
In the ordinary law, according to Tola, investigators have to prove the case while in the NAB law, it is the other way around.
“The way the NAB’s powers have been curtailed, people say it’s another NRO, but in my opinion, it’s ‘NRO-Plus’,” he said.
Political analysts believe the Pakistan Tehreek-e-Insaf (PTI) government would benefit the most from the amended NAB law, as several ministers are facing inquiries, especially in the cases involving Peshawar’s Bus Rapid Transport and Malam Jabba sports resort.
It might also give relief to Prime Minister Imran Khan in a case involving alleged misuse of a government helicopter.
Some observers say the amendment to the NAB law might also benefit senior bureaucrats of the Pakistan Muslim League – Nawaz (PML-N) era, especially Fawad Hassan Fawad and Ahad Cheema, who are facing cases of financial corruption and misuse of authority.
“It was long overdue,” said Irfan Qadir, a former attorneygeneral for Pakistan. “Cases had been filed against bureaucrats over their decisions or inadvertent errors.”
“It has long been argued that cases should only be made against bureaucrats if they have committed corruption while making decisions,” he added. “I think the amendments [to the NAB law] are necessary and should have introduced long time ago.”