NAB law amendments: Can SC examine act of Parliament, asks Justice Shah

ISLAMABAD: Supreme Court Judge Justice Mansoor Ali Shah Thursday asked the PTI counsel whether the apex court could examine the amendments made to the National Accountability Ordinance (NAO) 1999 by the parliament giving benefits to specific persons.

The judge asked this question during the hearing of the PTI’s petition challenging the amendments made by the former coalition government to the National Accountability Ordinance (NAO) 1999.

Chief Justice of Pakistan Justice Umer Ata Bandial presided over the three-member bench hearing the case.

Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah were the other members of the bench.

Replying to Justice Shah’s query, PTI’s counsel Khwaja Haris said the court could examine the legislation as the apex court’s judgments were available in this regard.

The judge further asked what was wrong if the Parliament brought those accused of corruption within the ambit of another law.

Haris submitted that several people got clean chits after the amendments made to the NAB law.

The chief justice observed that the basic case in benamidar reference was related to assets beyond means; however, the amendments made to the NAB law had totally changed its definition.

Makhdoom Ali Khan, counsel for the federal government, concluded his arguments, while Khwaja Haris, counsel for the PTI Chairman Imran Khan, started his arguments.

Justice Bandial observed that after the amendments made to the NAB law, the burden of proof rested with the prosecution to establish whether the benamidar properties were made through the corruption money or not.

“It seems that keeping assets beyond means remained no more a heinous crime,” he remarked. Khwaja Haris informed the court that the NAB spent around Rs18 billion on investigation and references from 2018 to 2021 adding that with the application of retrospective effect under the amendments, the public money spent on the investigation and references would be wasted.

He further submitted that the persons involved in plea bargain of less than Rs50 crore could now file an application after the NAB amendments and could become clean.

Justice Syed Mansoor Ali Shah, however, observed that the said person could be proceeded against in other court of law as well. Haris replied that nothing had been mentioned in the NAB amendments as to where the case of the said accused will go adding that making corruption of less than Rs50 crore after getting the amount will be out from the NAB jurisdiction.

The chief justice observed that it’s a serious issue when a person making corruption of Rs49 crore will be free from the NAB jurisdiction.

Earlier, arguing before the court Makhdoom Ali Khan submitted that the apex court always supported the legislation made while changing a law adding that the legislations made earlier with retrospective effect were as per Article 12 of the Constitution.

Article 12 states that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission or for an offence by penalty greater than, or a of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.

The counsel submitted that there was no constitutional prohibition against the retrospective application of legislation and cited Section 31 of the Customs Act as a precedent where retrospective application was upheld by the court.

The chief justice observed that the NAB amendments had put the unnecessary burden on the prosecution.

“Proceeding against benamidar is the center of accountability and at least it is necessary to determine whether the assets were made through corrupt practices or not”, the chief justice remarked.

Continuing, he said the matter in benamidar was related to assets beyond means but now it was being said that the prosecution will have to establish that those assets were made through corruption.

Under the new law keeping benamidar properties is not an issue now and if so then more assets from the known source of income should be expelled from the category of offence,” the CJP remarked. Meanwhile, the court adjourned the hearing for Friday (today).