When a teacher in the class furiously slaps one of the students, every student in the class is affected. Every student becomes fearful and that is when the whole class respects the teacher. This is exactly the effect the National Accountability Bureau (NAB) has on every person who has money in this country. When people see former prime ministers Nawaz Sharif and Khaqan Abbasi, appearing before the accountability courts, they begin fearing for themselves.
Therefore, when the Pakistan Tehreek-e-insaf (PTI) government began its accountability drive, it created an environment of fear rather than trust among the business community and bureaucracy. Since the PTI assumed power, we have seen various opposition leaders including, Shahbaz Sharif, Shahid Khaqan Abbasi, former president Asif Ali Zardari and former opposition leader Khurshid Shah and others being arrested by the National Accountability Bureau (NAB). Only Aleem Khan from the ruling party was arrested to show some semblance of neutrality.
The PTI has come up with well thought-out amendments to the NAB law, to their advantage. The ruling party has long been planning to make certain changes to the ordinance so that it can continue its attacks on the opposition and pacify an agitated bureaucracy. Not to mention the effect that fear has had on bureaucracy, creating hardships for PTI government to get the administration running smoothly.
The provisions of the third amendment to the law are as follows:
NAB Chairman Tenure
Chairman NAB’s term shall extend from 3 to 4 years and a further extension of four years could be granted by the President. This essentially means that the power rests with the prime minister as the president is usually a party loyalist. The President is now also empowered to give extension to the incumbent Chairman until a new one is appointed or the former is given
“Provided further that till the assumption of charge by the Chairman appointed under this section, the outgoing Chairman shall continue to act, exercise authority and perform functions as the Chairman and shall have all powers vested in the Chairman under the Ordinance. “
It is my understanding that Justice (r) Javed Iqbal will continue as the NAB chairman at least until the end of PTI’s tenure and the intention behind promulgating this specific clause is to make room for delay in the appointment of a new chairman. The situation has been further complicated by Imran Khan’s everlasting refusal to talk with the opposition, especially the Sharifs.
If the leader of the House and leader of opposition cannot agree on a name for the Chairman, the matter shall be forwarded to the parliamentary committee which will choose the new chairman from the list proposed by the two leaders. The committee will comprises 12 members, and have equal representation from the government and the opposition. The process is likely to be dragged needlessly as the committee has not been given a deadline.
Furthermore, the law does not provide a remedy in case of deadlock in the committee.
Opinion on the procedure
The idea of having a chairman with the consensus of government and opposition, which is based on the rationale of fairness, is a manifestly absurd one, even in the original ordinance. If the PM can appoint an Inspector General, Chief of Staff, Chief Secretaries and ministers then why can he not appoint the NAB chairman? The argument that if the PM appoints a chairman of his choice then he would be able to evade accountability is antithetical to the other real but hidden factors affecting the functioning of the Bureau.
Even if the PM would appoint a chairman of his liking, it in no way ensures his loyalty, as the chairman could still be steered by more powerful forces . Justice (R) Javed Iqbal was not chosen by PTI, but he his appointment did prove to be useful for them. Therefore, it is evident that even if the PM and the opposition unanimously decide the appointment of the NAB chairman, it does not in any way ensures fairness.
The neutrality of the NAB as an institution will be further dented by the president’s power to remove the NAB chairman. Previously, this power was exercised by Supreme Judicial Council, which comprised three senior most Supreme Court justices, and two senior provincial chief justices of High Courts. Therefore, the government will effectively have the power to remove the NAB chairman if he does not do as the government pleases
Justice(R) Javed Iqbal
Javed Iqbal is a perfect NAB chairman for the PTI government and PTI is afraid to consider any replacement as it knows that the NAB Chairman could hold the key to their downfall as happened with Nawaz Sharif. Massive corruption has taken place in the last three years with no sign of NAB looking into it. Javed Iqbal’s bias is therefore clear.
Javed Iqbal should have resigned when his video with a woman went viral but he didn’t means which likely means that the PTI has more on him And the PTI wants him to stay.
Based on the reasons above, it is my understanding that Javed Iqbal is less likely to be reappointed under the new ordinance for another 4 years by the president, as the process of the reappointment is fairly complex, but he shall continue as chairman during this tenure of the PTI government as a result of the extension given to him by the President, under the new ordinance. There is no time limit prescribed in the new ordinance, therefore, Javed Iqbal can continue to serve for as long as the government wants. Without the amendment, Imran Khan would have had to consult Shahbaz sharif for the appointment of a new chairman NAB
Imran refused to do so because it undermines his political slogan of not shaking hands with the thieves and also because he feared that the new chairman might turn on him as Javed Iqbal went after the PPP and the PML-N, who had appointed him. The reason Justice Javed Iqbal was chosen by PPP and PML-N was that they didn’t think of him as a revolutionary.. They forgot that government official also have other entities to fear.
Appointment of Accountability Court Judges
Previously only the most senior and competent District & Session court judge was appointed as the Accountability Court Judge, but now even a retired judge of a high court or a retired District & Session Judge can be appointed. The age of retirement has also been increased to 68. the President can now, in consultation with the concerned Chief Justice of High Court, appoint any serving or retired judge. The perks of Accountability judges have also been raised to the level of High Court Justices.
It is so unfortunate that in this country a General who is trained to , ends up becoming a diplomat after retirement, a job completely at odds with his training; and a retired judge of a High Court or Supreme Court readily accepts a job far less honourable than the one he is retired from. The appropriate forum to dismiss a judge from his job is the Supreme Judiciary Council (SJC), however, the President has now been given the power to remove a judge on the allegations of misconduct and this further weakens the accountability system
Cases pertaining to money laundering and public fraud
Initially, PTI had taken both these offences off the jurisdiction of NAB. After having done so, the government had second thoughts that they may have just made NAB a bit too much trouble-free for their enemies. In the meantime, Pakistan Peoples Party (PPP) leader and former Deputy Chairman Senate Saleem Mandviwalla challenged the illegal allotment of plots of the Overseas Cooperative Housing Society Limited (OCHSL) (Kidney Hills) case against him and others under the National Accountability (Second Amendment) Ordinance, 2021. Mandviwalla has taken the plea that after the promulgation of the NAB (Second Amendment) Ordinance, the jurisdictions of the Accountability Court and the NAB has ended.
Although the NAB is yet to file a reply to the said application, PTI seems to have apprehended more such applications in future and therefore, passed another ordinance giving back NAB its power to continue pursuing money laundering and public fraud cases prior to the 6th of October, 2021, the date on which the second amendment ordinance was passed. Meaning that Nawaz and Zardari will continue to face their cases but no new cases will be formed in future by NAB in the context of government related issues)
Recording of Proceedings
Under the new ordinance, the trial proceedings shall be recorded via audio video electronic devices.
“In trials before the Court, save as expressly provided otherwise, the evidence of all witnesses and the accused, including examination in-chief, cross-examination and re-examination, or any other statement under the Code, shall be recorded through electronic audio-video means, or any other modern device, where after the recording shall be transcribed verbatim in the same language in which the evidence has been uttered.”
Although this seems like a positive step, but given the PTI’s track record, this too looks more like a device for ridicule than an attempt to make the proceedings fair.This may ultimately impact the proceedings as videos in this country get leaked often
The new ordinance prescribes six class of persons who are immune from the jurisdiction of NAB authorities. The most notable among them are the following.
(a) all matters pertaining to Federal, Provincial or Local taxation, other levies or imposts, including refunds, or loss of exchequer pertaining to taxation;
(b) Decisions of Federal or Provincial Cabinet, their Committees or Sub-Committees, Council of Common Interests (CCI), National Economic Council (NEC), National Finance Commission (NFC), Executive Committee of the National Economic Council (ECNEC), Central Development Working (CDWP),Provincial Development Working Party (PDWP), Departmental Development Working Party (DDWP), and the State Bank of Pakistan;
In a nutshell, the only people NAB can now prosecute or continue to prosecute after the 06th of October, 2021, is the opposition and all governments of the future have become immune to NAB, at least on paper.. An example of this immunity would be that NAB will not have jurisdiction to prosecute sugar & wheat crises during the PTI government, so much so that the legal and economic advisors have been expressly excluded from NAB jurisdiction.
Although some of these amendments are positive as NAB had become a fearsome entity, even for innocent people, however, all these amendments seem to have been made for the wrong reasons — to save the PTI. The new amendments are not meant to make the Accountability system stronger or weaker but to make it more suitable to the PTI government.
Even the original NAB ordinance had failed to achieve its rightful purpose of accountability as the makers never intended the NAB to be a genuine anti-graft body but rather a tool for political engineering .
The new ordinance will help the PTI retain Justice Javed Iqbal as the chairman, continue to prosecute the opposition and help save the PTI from accountability, whether or not it succeeds to form a government in 2023.