Supreme Court scraps most changes to NAB law in majority verdict

ISLAMABAD: The Supreme Court on Friday restored corruption cases against public office holders after striking down some of the amendments made to the National Accountability Ordinance (NAO) 1999 by the previous coalition government, declaring it against the rights pertaining to public interest enshrined in the Constitution.

A three-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah announced the verdict with a majority 2-1 in the petition filed by former prime minister Imran Khan challenging the impugned amendments in NAB law.

After the verdict, the cases against former prime ministers Nawaz Sharif, Syed Yousaf Raza Gillani, and former president Asif Ali Zardari will again land in the accountability courts along with the LNG reference against former prime minister Shahid Khaqan Abbassi and the reference filed against former premier Raja Pervaiz Ashraf in rental power matter. The court held that it is accepted that Parliament is empowered to legislate freely within its legislative competence laid down by the Constitution; however, it is also a settled principle of our constitutional dispensation that the three organs of the State i.e. the legislature, the executive and the judiciary perform distinct functions, and that one organ of the State cannot encroach into the jurisdiction of another organ. Justice Syed Mansoor Ali Shah, while dissenting with the majority judgement, held that the judgement has fallen short to recognise the constitutional command that “the State shall exercise its power and authority through the chosen representatives of the people”, and to recognise the principle of trichotomy of powers, which is the foundation of parliamentary democracy.

It is pertinent to mention here that Justice Mansoor, during the course of hearings in the case, had repeatedly stressed for constitution of a full court for the case or waiting for the final decision on the Supreme Court (Practicing and Procedure) law.

Justice Bandial, however, had opposed the suggestion of Justice Mansoor with the observation that as his retirement was near hence he wants early disposal of the petition, challenging the NAB amendments.

The chief justice had further observed that the matter had already been pending before them since June, 2022 that’s why he wants to decide the case before his retirement, adding that it would be a sort of embarrassment for him if he did not take the matter to final conclusion.

Last year in June, Pakistan Tehreek-e-Insaf Chairman Imran Khan had filed the petition in the apex court under Article 184(3) of the Constitution praying for striking down the amendments made through the National Accountability (Amendment) Act 2022 and the National Accountability (Second Amendment) Act 2022 for being ultra vires to the Constitution.

Earlier, on September 5, the apex court had reserved the verdict after 53 hearing for more than a year holding extensive debate over Parliament to enact legislation for amending the NAB law with retrospect effect.

The CJP, after concluding the case, had remarked that something short and sweet would be released soon.

The amendments made to NAB law struck down by the court include the one which limited the NAB jurisdiction to cases involving over Rs500 million and one which allowed the accused to claim the amount of plea bargain deposited after being acquitted.

The judgment authored by Justice Bandial declared the petition of Imran Khan as maintainable on account of violating Articles 9, 14, 24 (protection of property rights) and 25 (equality of citizens) of the Constitution and for affecting the public at large because unlawful diversion of State resources from public development projects to private use leads to poverty, declining quality of life and injustice.

“Section 3 of the Second Amendment pertaining to Section 5(o) of the NAB Ordinance that sets the minimum pecuniary threshold of the NAB at Rs500 million and Section 2 of the 2022 Amendments pertaining to Section 4 of the NAB Ordinance which limits the application of the NAB Ordinance by creating exceptions for holders of public office are declared void ab initio insofar as these concern the references filed against elected holders of public office and references filed against persons in the service of Pakistan for the offences noted in Section 9(a)(vi)-(xii) of the NAB Ordinance,” said the judgement.

The court, however, declared as valid, Section 3 of the Second Amendment and Section 2 of the 2022 Amendments pertaining to Sections 5(o) and 4 of the NAB Ordinance for references filed against persons in the Service of Pakistan for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance. “The phrase ‘through corrupt and dishonest means’ inserted in Section 9(a)(v) of the NAB Ordinance along with its Explanation II is struck down from the date of commencement of the First Amendment for references filed against elected holders of public office,” said the judgement, adding that to this extent Section 8 of the First Amendment is declared void. The court held that Section 9(a)(v) of the NAB Ordinance, as amended by Section 8 of the First Amendment, shall be retained for references filed against persons in the service of Pakistan. The court restored Section 14 and Section 21(g) of the NAB Ordinance from the date of commencement of the First Amendment, however, declared as void, Sections 10 and 14 of the First Amendment.

“The second proviso to Section 25(b) of the NAB Ordinance is declared to be invalid from the date of commencement of the Second Amendment,” said the judgement, adding that Section 14 of the Second Amendment is therefore void to this extent. The court held that all orders passed by the NAB and/or the accountability courts placing reliance on the amended Sections are declared null and void and of no legal effect.

“Therefore, all inquiries, investigations and references which have been disposed of on the basis of the struck down Sections are restored to their positions prior to the enactment of the 2022 Amendments and shall be deemed to be pending before the relevant for a,” the judgement said.

The court directed NAB and all accountability courts to proceed with the restored proceedings in accordance with law, adding that the NAB and/or all other fora shall forthwith return the record of all such matters to the relevant fora and in any event not later than seven days from today (Friday) which shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/ closed/ returned.

The court held that it is accepted that Parliament is empowered to legislate freely within its legislative competence laid down by the Constitution; however, it is also a settled principle of our constitutional dispensation that the three organs of the State i.e. the legislature, the executive and the judiciary perform distinct functions and that one organ of the State cannot encroach into the jurisdiction of another organ.

The court cited the judgement passed in Mobashir Hassan’s case wherein it was held that “it is also to be borne in mind that Constitution envisages the trichotomy of powers amongst three organs of the State, namely the legislature, executive and the judiciary. The legislature is assigned the task of law making, the executive to execute such law and the judiciary to interpret the laws. None of the organs of the State can encroach upon the field of the others”.

“Nonetheless, by enacting Section 3 of the Second Amendment we are afraid that Parliament has in fact assumed the powers of the judiciary because by excluding from the ambit of the NAB Ordinance the holders of public office who have allegedly committed the offence of corruption and corrupt practices involving an amount of less than Rs500 million Parliament has effectively absolved them from any liability for their acts,” the judgement said. “This is a function which under the Constitution only the judiciary can perform (with the exception of the president who has been conferred the power to grant a pardon under Article 45 of the Constitution),” the judgement maintained.

The court noted that by amending Section 5(o) of the NAB Ordinance to raise the minimum pecuniary threshold of the NAB to Rs500 million, Section 3 of the Second Amendment has undone the legislative efforts beginning in 1976 to bring elected holders of public office within the ambit of accountability laws because by virtue of Section 3 elected holders of public office have been granted both retrospective and prospective exemption from accountability laws. Once excluded from the jurisdiction of the NAB no other accountability fora can take cognisance of their alleged acts of corruption and corrupt practices.

“Such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution because it permits and encourages the squandering of public assets and wealth by elected holders of public office as there is no forum for their accountability,” said the judgement. The court held that this in turn affects the economic well-being of the State and ultimately the quality and dignity of the people’s lives because as more resources are diverted towards illegal activities less resources remain for the provision of essential services to the people such as health facilities, education institutes and basic infrastructure etc.

“The immunity also negates Article 62(1)(f) of the Constitution which mandates that only ‘sagacious, righteous, non-profligate, honest and ameen’ persons enter Parliament.” the judgement said, adding that it also offends the equal treatment command of Article 25 of the Constitution as differential treatment is being meted out to persons in the service of Pakistan than to elected holders of public office.

“Consequently, if Section 3 of the Second Amendment is allowed to remain on the statute book there will be an anomalous situation in that elected holders of public office will be exempted from accountability under the amended and much relaxed requirements of the NAB Ordinance even though they, while acting as trustees and the chosen representatives of the people, take decisions which are often of grave consequence for the protection of the economic, political and over-all national interests of the people of Pakistan,” it said.

“Section 3 of the Second Amendment is declared to be ultra vires the Constitution and of no legal effect from the date of commencement of the Second Amendment,” the judgment declared.

“Section 2 of the 2022 Amendments is also declared to be void from the date of commencement of the 2022 Amendments,” the court noted, adding that persons in the service of Pakistan ii. Section 2 of the 2022 Amendments insofar as these pertain to the offences set out in Section 9(a)(i)-(v) of the NAB Ordinance are declared to be intra vires the Constitution because persons in the service of Pakistan can be prosecuted for these offences under the 1947 Act.

However, Section 2 is ultra vires the Constitution from the date of commencement of the 2022 Amendments for the offences listed in Section 9(a)(vi)-(xii) because persons in the service of Pakistan cannot be tried for such offences under the 1947 Act or any other accountability law.

Elected Holders of Public Office

i. For the foregoing reasons the phrase “through corrupt and dishonest means” used in Section 9(a)(v) along with its Explanation II is struck down from the NAB Ordinance from the date of commencement of the First Amendment for being unworkable. Additionally, Section 14 in its entirety is restored to the NAB Ordinance from the date of commencement of the First Amendment. Sections 8 and 10 of the First Amendment are declared invalid to this extent.

Persons in the Service of Pakistan

ii. The amendments made in Section 9(a)(v) of the NAB Ordinance by Section 8 of the First Amendment are upheld in their entirety as persons in the service of Pakistan can be tried for the same offence under the 1947 Act. iii. However, Section 10 of the First Amendment is struck down from the date of commencement of the First Amendment and Section 14(a), (b) and (d) stand restored to the NAB Ordinance because such presumptions do not exist in any other accountability law.

Declaration on Section 14 of the First Amendment 42. Section 21(g) is hereby restored in the NAB Ordinance for both elected holders of public office and persons in the service of Pakistan with effect from the date of commencement of the First Amendment for facilitating people’s right to access justice and for protecting their public property from squander. Accordingly, Section 14 of the First Amendment is struck down for being illegal.

In his dissenting note, Justice Mansoor said that he read the judgment authored by the CJP to which Justice Ijaz ul Ahsan has concurred provided to him on Thursday night.

“With great respect, I could not make myself agree to it and due to the paucity of time, I cannot fully record reasons for my dissent and leave it for my detailed opinion to be recorded later.”

“|However, in view of the respect that I have for my learned colleagues and for their opinion, I want to explain, though briefly, why I am unable to agree with them,” Justice Mansoor noted.

He said that the primary question in the case is not about the alleged lopsided amendments introduced in the NAB law by the Parliament but about the paramountcy of the Parliament, a house of the chosen representatives of about 240 million people of Pakistan.

“It is about the constitutional importance of parliamentary democracy and separation of powers between three organs of the State,” the judge noted, adding that it is about the limits of the jurisdiction of the court comprising unelected judges. Second, judging the purpose and policy of an enactment passed by Parliament without any clear violation beyond reasonable doubt of any of the fundamental rights guaranteed under the Constitution or of any other constitutional provision.

Justice Mansoor further stated that the judgement has fallen short, in his humble opinion, to recognise the constitutional command that the State shall exercise its power and authority through the chosen representatives of the people and to recognise the principle of trichotomy of powers, which is the foundation of parliamentary democracy.

“The majority has fallen prey to the unconstitutional objective of a parliamentarian, of transferring a political debate on the purpose and policy of an enactment from the Houses of the Parliament to the courthouse of the Supreme Court,” Justice Mansoor held, adding that without setting out a clear and objective test for determining how the claimed right to have accountability of the parliamentarians is an integral part of any of the fundamental rights guaranteed under the Constitution, the majority judgement through a long winding conjectural path of far-fetched “in turn” effects has tried hard to “ultimately” reach an apprehended violation of the fundamental rights.

The judge further noted that the judgement has also fallen short to appreciate that what Parliament has done, Parliament can undo; the legislative power of Parliament is never exhausted.

“If Parliament can enact the NAB law, it can also repeal the entire law or amend the same,” Justice Mansoor noted. The judge stated that further reasons to be recorded in detailed opinion later, adding that with great respect, he disagree with his learned brothers and dismiss this petition.