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At NAB’s Discretion

As the Supreme Court ordered National Accountability Bureau’s (NAB) investigation into ousted Prime Minister Nawaz Sharif, his children and Finance Minister Ishaq Dar comes to an end, questions hang over the future course of action that will be taken by the body. Chief among them is whether arrest warrant will be issued for the references filed against them.

Normally, the necessity to arrest is defined by the charge itself, with certain, usually criminal and large-scale civil charges requiring the accused to be arrested before the decision to grant bail can be made. Misdemeanours and minor charges do not carry such stipulations. This means that the speculation over the likely or unlikely arrest of Nawaz Sharif and company should not have arisen in the first place – the matter should have already been settled, one way or the other, by recourse to the law.

However, the National National Accountability Ordinance (NAO) – which governs NAB and accountability courts – is another matter altogether. It gives the chairman of the NAB unfettered powers to issue arrest warrants for an accused during an inquiry or investigation and even during trial proceeding, which has been strangely construed to mean that arrest warrants can only be issued at the sole discretion of the chairman regardless of the charge. This seemingly perverse conclusion is not a fluke, but the result of provisions that have been inserted into the NAB in the past, creating this lacuna.

And while legal experts believe that crimes covered by anti-corruption and special laws envisaging three-year imprisonment are non-bailable offences, the accused cannot be arrested unless the chairman says so.

There are arguments for giving this discretion to the NAB chairman – mainly so the body can leverage it to recover funds from corrupt individuals – but on the larger scale people like Nawaz Sharif and Ishaq Dar always seem to fall on the right side of this discretion. That is the problem.

This conciliatory and negotiating stance from the NAB when it comes to high profile offenders has been widely chastised before. Giving the chairman complete direction in issuing arrests is a continuation of the failed ‘voluntary return’ and amnesty polices used by the body in the past. It may recover funds and generate revenue for the government, but influential individuals will are more likely to be shown leniency – leniency that their crimes do not deserve.

We are not sure if Nawaz Sharif’s case merits an arrest warrant – and that is the point; the NAO should not allow room for such uncertainty.

 

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