In a statement PBC said that the proposed text will provide little comfort to the private sector as in a great majority of cases there can be some direct or indirect connection with a holder of a public office. It may therefore serve as a back-door re-entry of NAB. The Pakistan Business Council recommends that NAB's powers be restricted solely to those holding public office. Other government investigation agencies, regulators and courts should exercise their powers to hold the private sector accountable, without the interference of NAB.
To enable this, the following amendments should be considered in the NAB Ordinance:
1. Section 3 be amended as follows:
"3. Ordinance to override other laws.-The provisions of this Ordinance, insofar as the same pertains to holders of public office, shall have effect notwithstanding anything contained in any other law for the time being in force."
2. A new Section 3A be added as under:
"3A. Application of Ordinance to holders of Public Office only.-(i) No provision of this Ordinance shall apply to any person other than the holder of a public office in the discharge of his official duties; (ii) all pending inquiries, investigations and/or trial relating to persons other than a holder in public office shall stand abated and transferred to the relevant agency/court as may be prescribed under the rules hereunder."
3. Section 9(a) be amended as follows: "9(a) A holder of a public office is said to commit or to have committed the offence of corruption and corrupt practices:
4. Section 9(a)(xii) be amended as follows: "(xii) if he aids, assists, abets, attempts or acts in conspiracy with a holder of public office convicted of an offence as provided in clauses (i) to (xi).]"
The PBC further recommends the following: (a) Changes be made to require transfer of the existing proceedings by NAB against the private sector to another appropriate court so that the trial may continue against them at the appropriate forum.
(b) Material provisions in the NAB Ordinance relating "to any person" should be deleted from the Ordinance to exclude private persons and entities.
(c) The Ordinance should apply only to mega corruption cases by holders of public office. The suggested threshold of PKR 500 million in the proposed amendment is too low and should be increased to a minimum of PKR 2 billion (and the mechanism for determining the valuation will need to be set forth in detailed rules).
(d) In the light of the recommendation made by the Honourable Supreme Court, the law should be amended to provide pre and post arrest bail by the Accountability Court thereby reducing the burden on the High Court and the Supreme Court (with a provisions for an appeal to the High Court both by the accused and the prosecutor).
(e) The definition of 'inquiry' and 'investigation' and thereafter the various stages of trial should be clarified in the Ordinance. Presently, the Ordinance does not address this issue (other than Section 24 of the Ordinance). Clarifying the same will bring more transparency in the application of the NAB laws.
Ehsan Malik, CEO of PBC cautioned against rushing through with half measures to amend the NAB Ordinance. "This is a valuable opportunity to create a framework that strengthens business confidence and allows the private sector to invest, create jobs, boost exports and encourage import substitution," he added.-PR