ISLAMABAD: Amendments to the National Accountability Bureau (NAB) Act by Presidential Order are a mixture of good, tough and controversial provisions, subject to much confusion.
Prominent constitutional scholar Wasim Sajjad told The News that giving the accountability courts the power to grant bail was a fair amendment, but attaching the condition of bail equivalent to the alleged amount of bribery was unfair.
“It is always at the discretion of the competent court to set the amount of the bond. But in the present case, a legislative order by presidential order was given to him to follow,” he said. “Courts determine a reasonable bond amount when granting bail. This amendment can be challenged and invalidated by a superior court.
Another legal expert, Senator Kamran Murtaza, told The News that judgments from superior courts on the ground found that an excessive amount of bail was the denial of installation to the defendant. “A defendant can discuss how he can mobilize such a sum, which he allegedly obtained through corruption which has not yet been proven.” Wasim Sajjad said the exclusion of bureaucrats and businessmen from the scope of the NAB Act was a good amendment.
“The principle is that if there is a procedural defect but the person accused of it has obtained no pecuniary benefit, he should not be prosecuted under the NAB Act because he has not committed any offense . In the rental energy projects case, the allegation is that a summary was sent but no financial gain was involved.
He said that the confusion in the amendments concerned the closing or transfer of cases that were heard by the courts of responsibility. “The amendments do not specify who will decide that the cases that are heard are in fact not established. Nothing is written in the amendments.
Wasim Sajjad said that if a judge from a responsible court refers a case to an ordinary court, as was done in Islamabad the other day, he is actually not allowed to do so because he cannot. hear because the amendments removed it from its jurisdiction. “When you can’t proceed with the case, how can you transfer it to another court because the case doesn’t exist under the amendments?”
According to the amendments, after the entry into force of the order, all pending investigations, inquiries, trials or proceedings under this order, concerning the persons or transactions mentioned in paragraph (2), must be transferred to the authorities , departments and courts concerned. under the respective laws, as the case may be. Apparently, this provides for automatic action without the intervention of the judges of the tort courts.
The constitutional lawyer said the day-to-day hearing provision was severe as it would put immense pressure on the lawyers hired by the defendant. He said lawyers have to read a lot of documents, which takes time, while they also have other business matters to attend to. “Daily hearings can lead to injustice.” Previously, the NAB Act provided that a responsible court must decide a case within 30 days. From now on, this period is extended to six months. Wasim Sajjad said matters relating to fraud, private persons, businesses and housing companies have been removed from the scope of NAB law. If no government agency or public office holder is involved in such transactions, the NAB Act has nothing to do with them under the amendments, he said, and added that if an official was involved in obtaining a bribe in such processes, the case would be covered by NAB law.
He indicated that the NAB President’s Term Amendment was not a constitutional provision but was contained in an ordinary statute. An interesting challenge may come from this amendment on the grounds that it is person-specific, he said. “It could be argued that while keeping the president in office until his replacement is appointed, the process of consultation between the leadership of the chamber and the opposition has been ruled out.”
Kamran Murtaza said the amendments gave an NRO to decisions by federal and provincial cabinets and a host of other decision-making bodies. He said the change regarding the NAB president was specific to a person and could be overturned by a higher court for that reason, because no law can be made for a specific person.
He pointed out that the amendments created discrimination between public office holders and other persons. If a public office holder commits a crime, he will be tried in a responsible court, but if it was committed by the other category, he will face an ordinary court, he said, and claimed that this was not permitted under Section 25 of the Constitution. .
When contacted, renowned constitutional expert, former president of the Supreme Court Bar Association and Pakistani Senator Tehreek-e-Insaf (PTI), Syed Ali Zafar, told The News that the amendments to the NAB Act contained excellent provisions.
Summarizing them, he listed at least four positive amendments. First, a loophole in the NAB Act was removed, which concerned the position of NAB President remaining vacant until a replacement was appointed. Now it will continue until the consultation process is complete and a new chair is appointed.
Second, the provision of the parliamentary committee having equal representation of government and opposition was inserted into the NAB Act. In the event that the Prime Minister and the opposition fail to reach a consensus, the matter will be referred to this forum. The Constitution already provides for such a body for the appointment of superior court judges, the Chief Electoral Commissioner and members of the Election Commission of Pakistan.
Third, bureaucrats were removed from the scope of NAB law because officers did not sign records for fear of being caught by NAB. Fourth, the consultation process between the Prime Minister and the Leader of the Opposition remained intact. This ensures that both sides of the parliamentary divide are involved in this key selection.
Ali Zafar pointed out that empowering the Court of Auditors to grant bail was another good amendment, but seizing bail equal to the amount of money from the alleged corruption was not good. It’s like giving something with one hand and taking it away with the other, he says.
The expert said that the existing procedure governing the conduct of the trial is in accordance with the proven law, the Code of Criminal Procedure and there is no need to change it and provide for the use of technology and the use of video. He said he had opposed it but to no avail and said some errors in the amendments needed to be corrected.