CJP Bandial asks if vague law can survive

ISLAMABAD: The Supreme Court on Tuesday reserved judgment on the petition of former prime minister Imran Khan, challenging the amendments made by the previous coalition government in the National Accountability Ordinance (NAO) 1999.

A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah, reserved the judgment after concluding some 53 hearings in the matter. “We reserve the judgment and will soon announce something short and sweet,” Chief Justice Umer Ata Bandial said and thanked counsels for both parties for their valuable assistance provided to the court.

Earlier, Bandial expressed disappointment that the NAB law lacked clarity on smuggling, illegal transfer of money, or state assets being used for corruption and asked if a vague law could survive.

At the outset of the hearing, Chief Justice Umer Ata Bandial observed that the anti-graft body had submitted reasons for withdrawing the references, adding the fate of these references and where they will be referred to was unknown.

The CJP asked Khawaja Haris, the counsel for Imran Khan, whether the NAB has any authority to shift cases to other forums. Haris replied that after the amendments, the NAB has no authority to deal with such cases.

Justice Mansoor Ali Shah, however, observed that no law is required to send the cases to other forums adding that after all these cases have to be shifted to some other forums.

“Have you gone through the report submitted by NAB,” the CJP asked Khwaja Haris adding that the reasons for the withdrawal of references suggest “a lot of NAB’s work has come to an end.”

The chief justice observed that the first amendment was made to Section 23 of the NAB law in May and the second in June. When Khwaja Haris contended that they did not get any benefit from the NAB amendments, the chief justice observed that they were not examining the conduct of the petitioner but examining whether the amendments violated the fundamental rights of citizens or not.

Justice Ijazul Ahsen, however, observed that corruption in public property affects every citizen. At this, the chief justice cited judgments of the apex court, including the Haj Scandal and Haris Steel Mills adding that in these judgments, the court held that the fundamental rights of citizens were affected.

The chief justice observed that examples of the maintainability of these cases are available. However, the question in this case arises as to how these amendments were applied retrospectively. “The NAB law should have been clear,” he said, asking, “Can a vague law survive?”

He remarked that the lack of clarity in the law on crimes such as smuggling, illegal transfer of money, or state assets being used for corruption was “upsetting”, adding that it was disappointing that these crimes are not clearly defined in the law.

Justice Mansoor Ali Shah asked whether the court could send back the laws with lacunas to parliament. Justice Ijazul Ahsen, however, observed how laws with lacunas could be sent back to parliament. “Parliament is supreme,” Chief Justice Bandial said, adding: “If you ask parliament to reconsider the laws, what will happen in the meantime?”

At this, Justice Mansoor asked: “Does parliament not have the power to legislate retroactively? Can the Supreme Court tell the parliament that you made a law based on cunning and malice?”

He said that if the apex court did not have the authority to amend the legislation of parliament, then it would have to follow it.

Justice Ahsan contended that parliament is not allowed to do everything. “Parliament cannot eliminate crime by making a law applicable from the past,” he said. However, Justice Mansoor reiterated his question: “What is the provision of the Constitution preventing parliament from passing legislation with retrospective effect?”

CJP Bandial added that it could have been said that the law would be applied retrospectively, but resolved cases would not be opened. The chief justice, while going through the report of NAB, asked its prosecutor whether any scale was settled for making references against the accused. “We have noted that even an accused alleged of making Rs10 million was also targeted by the anti-graft body.”

Makhdom Ali Khan, counsel for the federal government, argued before the court through a video link from the Karachi Registry that as his flight was rescheduled, he could not come to Islamabad. He submitted that the petition of the PTI chairman challenging the NAB amendments is based on assumptions and, in this respect he cited a verse of Mirza Ghalib. He pleaded with the court to leave something for the trial courts as well.

During the proceedings, Additional Attorney General Chaudhry Aamir Rehman told the court that Attorney General Mansoor Usman regretted the inconvenience caused to the court for being abroad. The Additional Attorney General, however, told the court that the AG would submit his response.

The NAB prosecutor told the court that at present some 36 cases are pending before the NAB court in Karachi, 21 in Lahore and about 9 to 10 in NAB courts in Khyber Pakhtunkhwa. He told the court that the anti-graft body has sent some 52 references to Customs and Banking Courts.

At this, Chief Justice Bandial observed that the basic defect in the amendments under challenge is that it only talks about money but not about misuse of powers. The NAB prosecutor further informed the court that some cases came back to NAB, including 212 in 2023 and 336 in 2022 adding that the anti-graft body sent 30 cases in 2023 and 24 references to Banking and Customs courts.

The chief justice, however, questioned how the NAB could do this when it has no authority after the amendments. The NAB prosecutor, however, replied that these cases went to NAB’s storage.

Meanwhile, the court reserved the judgment and thanked counsels for the parties for their enlightened arguments during the whole case. “We thank everyone for their cooperation, Khwaja Haris, the petitioner’s counsel as well as Makhdom Ali Khan for their enlightened arguments made before us,” the chief justice added.

Last year in June, the former prime minister had filed a petition under Article 184(3) of the Constitution, alleging that the amendments made in NAO, 1999 were person-specific and, as such, it is just and fair to protect the fundamental rights of citizens enshrined in the Constitution. He had contended that the amendments have taken away the authority of appointing the NAB chairman and have given the responsibility to the coalition government, which will manoeuvre to assume control over and influence the impartiality of the head of anti-graft body.

He had prayed the apex court to adjudicate upon the questions of great public importance with reference to the enforcement of fundamental rights of citizens under articles 9, 14, 19A, 24 and 25 of the Constitution.