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SC amendments in the NAB Ordinance

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More than 1700 references against allegedly corrupt politicians and senior bureaucrats are under investigation

From Shamim Ahmed Rizvi, 
Islamabad
 May 07 - 13, 2001

By and large the Supreme Court judgment on appeals against National Accountability Bureau Ordinance (NABO) in Islamabad has been hailed as a balanced judgment and a well done job for which Supreme Court can certainly congratulate itself. The Government can draw heart that the constitutionality of NAB Ordinance has been accepted, while the appellants can feel satisfied that many of its harsh provisions have been scrapped and the law has been given badly needed pruning.

The Supreme Court has held that the National Accountability Bureau Ordinance was competently promulgated and is neither ultra vires of the Constitution nor does it invade the provincial autonomy in any manner. In its judgment on appeals against the NABO the apex court reduced the period of convict's disqualification from 21 to 10 years and cut down the duration of remand from 90days to 15 days. It, however, allowed the Government to retain provisions relating to burden of proof on the accused, discretionary official powers on choice of venue for trial and creation of new offences (wilful loan default). Army and judiciary's immunity from the NABO is, however, unaffected, while High Courts have been empowered to accept bail. The apex court has also given certain other guidelines to the Government to amend the Ordinance within 2 months. The verdict, which has evoked mixed reaction from the jurists, constitutional experts and prominent men of legal profession, is a major ruling to uphold the fundamental rights, as enunciated in the Constitution. It has allowed relief to the accused, removed legal lacunae and struck down or softened NABO's harsh provisions. It is certainly a matter of satisfaction that the Government has committed to implement the apex courts order in letter and in spirit.

During the arguments before the Supreme Court the government side played its cards well and took the position that considering some of the provisions of the law, it was keenly awaiting the Supreme Court's guidance in the matter. In the event, the NAB apparatus has been brought more closely under the supervision of the superior judiciary. Henceforth the Chief Justice will be consulted in the appointment of both the NAB Chairman and the prosecutor general. Presiding over the courts will be regular sessions judges, again appointed in consultation with the superior judiciary. Bail applications can be moved in the high courts. The burden of proof will remain on the shoulders of the accused but prosecution will have to make out a convincing case right at the beginning of proceedings. More importantly, from the point of view of the accused, the remand period has been whittled down from 90 days to 15 although the prosecution will have the right to ask for further extensions in blocks of 15 days. The court has also recommended the disqualification period for those convicted under the NAB law should be reduced from the present 21 years to 10 years. These will make the NAB Ordinance a more civilized piece of Law.

The part of the judgment which reduces the period of disqualification of convicts from 21 years to 10 years has not, however, been well received in some quarters. The general feeling is that the individuals who have been proved to be dishonest and corrupt in the courts and convicted accordingly should have no right to hold public office for the rest of their lives. This is necessary for the sake of good governance which is so badly needed in our country. Those, who manipulate kickbacks, swallow bank loans, indulge in nepotism and favoritism, usurp public rights, exploit their position for self-aggrandizement and resort to bribery and corruption in politics, in fact, deserve to be permanently debarred from holding any public office. A cursory look at the nation's political scenario reveals that the same ugly faces masqueraded the corridors of power, who have looted and plundered the country's resources, in one way or the other, over the decades. Corruption entails much harsher punishments in other countries. Philippines has death penalty for corruption.

It is also a matter of satisfaction that NAB authorities have not only accepted all the amendments and pruning of law, they expressed a feeling that the Supreme Court verdict has provided a new strength to the organization. Investigations in hundred of cases which were in final stages will be completed expeditiously and hundreds of fresh references will be filed in the courts in the coming few weeks. The verdict has not affected the pending references, rather has provided an edge to the government to deal with the accused persons under the proposed changes in the NAB Ordinance. The apex court has taken a serious notice of the wilful default and has observed that for the last several years there has been tremendous increase in allegations of massive corruption against divergent strata of the society. Thus the need for creating the offence of wilful default arose because in the past the prosecution agencies did not properly carry out investigations into alleged involvement of several persons holding high offices in the executive, public offices, etc.

More than 1700 references against allegedly corrupt politicians and senior bureaucrats are under investigation and most of them, specially against the politicians, come under wilful default of which the apex court has taken a very serious view. It would help in expeditious decision in such cases.