From Shamim Ahmed
Nov 29 - Dec 05, 1999
Widening the accountability net
The new Accountability Law enforced through an ordinance promulgated
last week is more comprehensive, stringent and more equitable then the existing laws on
the subject. The provisions of the new law represent a vast improvement over those of its
The so-called Ehtesab Act, enacted by the Nawaz Sharif government, was
tailor-made to prosecute the deposed PM's political opponents, particularly PPP leaders,
and protect him and his colleagues from any scrutiny. The Ehtesab Bureau was part of the
prime minister's secretariat and its chairman a close confidante. The Chief Ehtesab
Commissioner had nominal powers and the real authority was concentrated in the person of
Bureau chief Saifur Rehman Khan. The process initiated under the enactment had little
credibility and the only case decided by an Ehtesab Bench of the Lahore High Court is
pending appeal in the supreme Court.
While the first Ehtesab Ordinance promulgated by the Farooq Leghari's
caretaker regime in November 1996 commenced the process of accountability from January
1985, the 1997 Act restricted its application to 'the holders of public offices since the
6th day of November, 1990'. Tuesday's ordinance restores the previous commencement date
without specifying any date for holding an office.
Neither the 1996 Ordinance nor the 1997 Act was applicable to members
of the armed forces. The new ordinance includes 'any person who has served in and retired
or resigned from or has been discharged or dismissed from the Armed Forces of Pakistan'.
This is for the first time that the military has been brought within the purview of a
general accountability or anti-corruption law. Hitherto, it was subject to its own special
laws such as the Army Act.
Besides widening the accountability net, the new ordinance plugs the
various holes in it and seeks to make the process more effective and expeditious. The
office of the chief Ehtesab Commissioner stands abolished and all appointments made under
the repealed law have been expressly terminated.
The fact that its reach goes as far back as 1985 should be a matter of
some satisfaction for all those who had found the cutoff date of 1990 in the outgoing
accountability law as being unjust. Another aspect which needs to be welcomed is the
assurance that each case taken up by the NAB would be disposed of within five months. It
is only when the corruption cases get stuck in courts for years together that they become
a joke and serve as an incentive for more corruption. All offences falling within the
purview of the new law have been made non-bailable and the punishment prescribed includes
disqualification from holding any elective office for 21 years, 14 years of imprisonment,
fine and forfeiture of assets.
The definitions clause, however, makes a valuable and highly
significant addition. It includes among corrupt practices issuance of 'any directive,
policy, or any SRO (statutory regulatory order) or any other order which grants or enables
any concession or benefit in any taxation matter or law or otherwise so as the benefit
himself (the accused) or any relative or associate or a benamidar! Election rigging, an
offence under the Ehtesab Act, has been excluded from the operation of the new ordinance.
'Misuse of authority' to gain any benefit or favour has been added to the list of corrupt
practices under Section 9. Other offences have been more comprehensively defined to cover
the various modes of corruption.
The composition of Ehtesab courts has also been changed. The new courts
may consist of a retired judge of high court, a retired or serving sessions judge
qualified to be a judge ofthe high court, or a lawyer eligible for elevation to the high
court. The accountability judges will be appointed by the President of Pakistan in
consultation with the country's chief justice. They will decide references within 30 days.
A convict will have 10 days to file an appeal, which will be heard by a
bench of not less than two judges of the high court concerned and decided within 30 days.
The law does not provide for a second appeal out does not expressly curtail the
jurisdiction of the Supreme Court either.
No interim order of an accountability court will be open to challenge.
An appeal will lie only against the final order. The ordinance, which overrides other
laws, prohibits grant of bail to the accused or stay of proceedings by any court. In fact,
it seeks to bar the jurisdiction of all other courts in respect of matters being
considered by an accountability court.
A case under the ordinance may be initiated by the chairman of the
National Accountability Bureau on a reference from the chief executive of the appropriate
government, on receipt of a complaint, or of his own accord. The Bureau or any
investigation agency may seek information from any person and he shall be bound to
providen it. All dubious transactions shall be reported by banks to the National
Accountability Bureau as a matter of course. Investigation of cases should not normally
take more than 75 days.
Possession of assets which cannot be accounted for has been made an
offence of absolute liability. If an accused has property or pecuniary resources
disproportionate to his known sources of income, the court shall presume, unless the
contrary is proved, that he is guilty of corruption or corrupt practices and his
conviction therefore shall not be invalid by reason only that it is based solely on such a
'Assets' have been so defined as to mean 'any property owned,
controlled by a belonging to any accused, whether directly or indirectly, or held benami
in the name of his spouse or relatives or associates, whether within or outside Pakistan,
for which they cannot reasonable account, or for which they cannot prove payment of full
and lawful consideration'.
The ordinance empowers the federal government and the Bureau to seek
assistance from foreign countries in carrying out the process of accountability and
curbing corruption. The assistance includes recording of evidence, supply of documents,
execution of search warrants, confiscation of articles, and freezing and forfeiture of
assets and their transfer to Pakistan. The new law creates a new offence of 'wilful
default' in repayment of bank loans or payment of taxes and utility charges and makes it
punishable with 10 years' jail, besides other penalties. In fact, widespread default is
cited as one or the reasons behind its promulgation in its preamble.
Section 9 which describes corruption and corrupt practices is so
comprehensive that it covers all possible mode of corruption, misuse of power or
authority. It says.
a. A holder of a public office, or any other person, is said to commit
or to have committed the offence of corruption and corrupt practices:-
i) If he accepts or obtains from any person or offers any gratification
directly or indirectly, other then legal remuneration, as a motive or reward such as is
specified in section 161 of the Pakistan Penal Code (Act XLV of 1960) for doing or
for-bearing to do any official act, or for showing or forbearing to show, in the exercise
of his official functions, favour or disfavour to any person or for rendering or
attempting to render any service or disservice to any person; or.
ii) If he accepts or obtains or offers any valuable thing without
consideration, or for a consideration which he knows to be inadequate, from any person
whom he knows to have been, or likely to be concerned in any proceeding or business
transacted or about to be transacted by him, or having any connection with his official
functions or from any person whom he knows to be interested in our related to the person
so concerned; or.
iii) If he dishonestly or fraudulently misappropriates or otherwise
converts for his own use, or for the use of any other person any property entrusted to
him, or under his control, or wilfully allows any other person so to
iv) If he by corrupt dishonest or illegal means, obtains or seeks to
obtain for himself, or for his spouse and -or dependents or any other persons, any
property, valuable thing, or pecuniary advantage; or.
v) If he or any of his dependents or benamidars owns, possesses, or has
any right or title in any movable or immovable property or pecuniary resources
disproportionate to his known sources of income, which he cannot reasonably account
vi) Misuses his authority so as to gain any benefit or favour for
himself or any other persons or to render or attempt to do so.
vii) If he has issued any directive, policy, or any SRO (Statutory
Regulatory Order ) or any other order which grants or enables any concession or benefit in
any taxation matter or law or otherwise so as to benefit himself or any relative or
associate or a benamidar.
In his first ever encounter with national and international Press,
Chairman National Accountability Bureau (NAB) told journalists that Accountability Courts
will soon be set up at district and sessions level for the trial of those involved in
looting the state wealth, corruption and misuse of power. In two weeks time the Bureau
will be ready to start referring corruption cases to these courts. The Accountability
Chief made it abundantly clear that like his chief executive he also meant business and
would not hesitate even to proceed against his colleagues if found involved in corruption.
True to his reputation, Gen Amjad strictly refrained from making allegations against any
particular party or individual, saying that his comments may prejudice investigations
against the accused. Refusing comments on many vital questions on technical grounds the
General said that, "his bureau will mostly focus on corruption cases. Recovery of
loans form small part of NAB's defined task, its prime duty is to rid the country of the
menace of corruption at all levels. We are here to conduct across-the-board and
Without giving specific details and numbers of cases his bureau was
investigating, General Amjad said, his team was looking into fresh cases against former
Prime Minister Benazir Bhutto beside the cases the defunct Ehtesab Bureau concluded
against PPP leader. Similarly, a number of corruption cases were being investigated
against Nawaz Sharif but his current detention was not due to these cases. "Detecting
white collar crimes is not easy and quick process but investigations are in
progress," he added.
Answering a number of questions, General Amjad said the Bureau will do
its best to recover the plundered wealth from within as well as outside the country within
the framework of national and international laws. He said we are aware that many culprits
have fled the country along with national wealth and efforts are being made to bring them
back to Pakistan for trial. He said the NAB will also determine whether it was feasible to
spend more to trace hidden assets abroad. We don't want to drain national resources
chasing the shadows and in futile legal battle outside Pakistan. He hoped that foolproof
stringent legal process inside the country may help recover the looted wealth from within
and outside Pakistan.
The General said corruption had emerged as a major problem facing the
country and it has a vital linkage with the economic recovery of Pakistan. "We will
leave no stone unturned in this regard and our actions will speak louder than our
words", he said.
Replying to a question, General Amjad said, seven out of nine offences
under the schedule of the newly promulgated accountability ordinance pertain to corruption
and corrupt practices. And the right of appeal has been kept out of the law only to make
sure that no offender flees the country. He said the long coastal line and vulnerable
borders have made the ECL quite ineffective. It was for this reason that the right of bail
has not been provided for the accused till the completion of investigation. But all the
cases will be tried in open courts and justice will be done to every one, Pakistan is
currently faced with extraordinary economic and social crisis and it needs extraordinary
measures to solve them, the General said.