National Accountability Ordinance (NAO) 1999 has been amended through the promulgation of an ordinance, clauses of which were being debated on several platforms represented by the government and members of the opposition for the past month. It would be tabled as an act of parliament, so assured the Law Minister Barrister Farogh Naseem during a press conference, a procedure allowed by the constitution that has remained in force through all the 25 constitutional amendments indicative of an across-the-board political consensus. Thus while the preferred democratic route maybe to table the bill in parliament rather than resort to promulgating an ordinance, yet learned lawyer’s argument that all political parties when in government appear to be on the same page with respect to preferring ordinances to tabling bills has merit.
Section 6 of the NAO 1999 stipulated that the procedure for appointment of NAB Chairman would be through consultation between the leader of the house and leader of the opposition for a non-extendable period of four years. This has been amended to “there shall be a Chairman National Accountability Bureau to be appointed by the President in consultation with the Leader of the House and the leader of the Opposition…on expiry of the period of four years the incumbent chairman may be appointed for another period of four years by the President.” This amendment is being severely criticised by opposition members and bipartisan legal community on the grounds that the position requires that the tenure be non-extendable as the possibility of the incumbent seeking an extension for entirely personal reasons may compromise his ability to undertake bipartisan impartial accountability.
The 2021 amendment has deleted the 1999 provision stipulation that “as and when the Chairman NAB is absent or unable to perform the functions of his office due to any reason whatsoever, the Deputy Chairman will act as the Chairman NAB, and in case the Deputy Chairman is absent or unable to perform the functions of the office, any other person duly authorized by the Chairman NAB, to act as Chairman NAB.” And provides for the outgoing Chairman to continue to act, exercise authority and perform functions till the formal announcement of his successor (or his own reappointment). This amendment would dilute the pressure on the government to (re) appoint Chairman NAB which cannot be supported given the dissipation of the urgency to meet the legal requirements.
The government team argues that the Leader of the Opposition Shehbaz Sharif cannot be consulted on (re)appointment/replacement of Chairman NAB because he is embroiled in several NAB investigations. Shehbaz Sharif is not convicted merely accused and if the government is unwilling to compel federal ministers accused by NAB to resign till their names are cleared then surely the same courtesy must be extended to the leader of the opposition. The oft cited Aleem Khan’s case does not fit the parameters in use for politically more valuable federal and provincial ministers. In addition, the government is reportedly consulting with the leader of the opposition on electoral reforms and in the selection of members of the Election Commission of Pakistan though the government stalwarts may argue that these subjects are not conflict of interest cases with respect to Shehbaz Sharif yet the fact remains that irrespective of one’s personal conviction of another’s guilt one must wait for the judicial verdict before labeling anyone guilty or ineligible for performing an assigned task under the law.
The NAB ordinance will no longer apply to decisions of federal and provincial governments, Council of Common Interests, National Finance Commission, Executive Committee of the National Economic Council, central, provincial and departmental development working parties. This is an appropriate amendment as decision-making is a judgement call and a mala fide intent should have to be first determined for any punitive action. This implies that a charge of taking a flawed decision based on incompetence would not be under the purview of NAB; or as a case in point the flawed decision by former Finance Minister Ishaq Dar to keep the rupee overvalued which led to a historically high current account deficit would not be within the purview of NAB.
The amended NAB ordinance will also not be applicable to decisions taken by the State Bank of Pakistan Board headed by the Governor with five additional members, a component of the impending SBP amendment act supported by the International Monetary Fund though that includes deputy SBP governors as well.
NAB would no longer have any jurisdiction on the private sector and be inapplicable to a person or entity, not directly or indirectly, connected with the holder of a public office. However, this stipulation needs to be further refined as this has been the means through which private sector has been implicated.
However, what has to be appreciated is the fact that the long-standing demand of bureaucrats and also cabinet members, particularly technocrats, to take them out of the purview of NAB has been largely met – bureaucrats reluctant to implement the orders of the executive at a cost of millions of dollars to the country, examples being delays in procurement of RLNG/wheat/sugar, would now hopefully take prompt actions. Thus procedural issues, any advice/report given in the course of duty without evidence of monetary or other material benefit, and tax-related matters which would now be transferred to the Federal Board of Revenue (FBR) would no longer be within the purview of NAB. Hopefully, with this amendment that almost defangs the NAB the inertia afflicting the decision-makers in government would dissipate in due time leading to prompt decision-making.
