The National Accountability Bureau (NAB) Ordinance 1999 has been criticised for having a set of laws that are used for selective accountability or target political opponents to achieve the desired results. The absence of certain safeguards in this law, like the right to seek bail, deprives the accused of indemnity from harassment and persecution.

Promulgated in 1999 by the then military dictator Pervez Musharraf, the ordinance was apparently meant to tackle the menace of widespread corruption and take corrupt politicians, bureaucrats, businessmen, etc, to task. The law gave unfettered powers to NAB that could proceed against anybody on the basis of suspicion.

The fact that it came into force with retrospective effect from 1985 hints at the intention of the Musharraf regime to prosecute those who had been in a position of power at that time and onwards. 1985 was the year when Nawaz Sharif had become the chief minister of Punjab. Making one accountable for acts done when this law was not in place also makes it contentious.

Since then there have been efforts aimed at revising the law but these could not go beyond a certain level. Unfortunately, the governments in power used these to settle score with political opponents. There are allegations as well about the use of NAB law to buy loyalties of politicians and make them join the king’s party.

Interestingly, the PTI government that expressed satisfaction over NAB’s performance after Shahbaz Sharif’s arrest is also concerned about the loopholes in NAB law and wants a revision in that. It has set up a task force that will look into the clauses that violate fundamental rights of the accused and allow misuse of power and suggest improvements.

Reportedly, the reluctance shown by international companies to invest in Pakistan due to the existing NAB law has forced the sitting government to address this issue. There are several instances where foreign companies affected in any way by NAB action have won cases against the country in international courts and demanded compensation worth billions of dollars.

To start with, "the powers of NAB to arrest the accused before they are proven guilty need to be taken away," says Advocate Azam Nazir Tarar while talking to TNS. He says it is unacceptable that an accused can be taken into custody for at least 90 days at any time during the investigations on the behest of the chairman, without the right to get bail. "This is in total disregard of Article 4 of the Constitution that protects the right of individuals to be dealt with in accordance with law."

Tarar believes this method has been adopted by NAB authorities just to pressurise the accused to confess and save themselves from the long and tedious process of securing evidence against them. "This is quite similar to what the police does to extract confession from the accused."

Referring to the accounts of some of his clients who have been in custody of NAB, he says they were kept in solitary confinement in basements in eight by eight feet rooms. "It was all dark and there were no toilets that made them wait till morning to relieve themselves," he adds. He says when you know you are doomed to spend this life for an indefinite period you can even confess what you have not done.

The NAB authorities, on the other hand, justify the minimum 90-day detention on grounds that it takes a lot of effort, time and energy to acquire documentary evidence against white collar crime. "This is the justification they gave when NAB law was challenged by Asfandyar Wali in the Supreme Court in 2001," says Asif Sial, an advocate who has been a counsel in the Bank of Punjab scam probed by NAB.

Sial points out that NAB Ordinance was promulgated as a special law brought into force to combat a serious crime so these extraordinary clauses were incorporated into it. "This is like adding provisions of extended detentions in anti-terrorism law of different countries." About the NAB’s power to arrest an accused, he compares this with the police arresting an accused on suspicion but says that in the latter case, "the right to seek bail is given."

Tarar objects to the NAB’s justification and says there is no need for a long physical remand to trace documentary evidence against an accused and they must be differentiated from terrorists. "They must have the right to bail as options are there to limit their movement by putting their names on the Exit Control List (ECL) and forfeiting their passports and removing them from their posts if there is a risk of wasting evidence against them."

Apart from these, there are other provisions that need to be revisited. For example, there’s no stipulated time period for investigations to be completed. The burden of proof lies with the accused to prove themselves innocent instead of the prosecution to produce evidence against them.

The NAB chairman can freeze the property of the accused or that of his relatives if he or she is suspected of being linked to the case and even sell the livestock and perishable property during investigations. The property remains frozen even after the acquittal of the accused. Furthermore, Section 25 gives discretionary powers to the chairman to reject recommendations of a duly appointed committee and to refuse to recognise a settlement arrived at between a creditor and a debtor. This means despite going through all this exercise, the final decision lies with the all-powerful chairman.

Read also: Why an all-powerful chairman?

Tarar challenges NAB’s power to arrest an accused on a mere suspicion and present him in court in handcuffs on the grounds that it is against the spirit of the Article 4 of the Constitution.

Yet to follow are the NAB’s powers to enter into plea bargains with the accused and letting them go after paying an amount decided by the chairman. Though the last PML-N government brought an amendment making the beneficiaries of this option ineligible to hold public office for the rest of their life, there is a demand to scrap it altogether.