‘SC has a very low opinion of parliament, politicians’

KARACHI: Legal experts find little to celebrate in Friday’s majority verdict by the Supreme Court in the NAB amendments case, and caution that the judgment amounts to extraordinary expansion of the court’s jurisdiction and could come to haunt politicians hailing it.

High court advocate and former faculty at LUMS Hassan Abdullah Niazi first explains the Supreme Court verdict as: “In its verdict the Supreme Court hasn’t declared all provisions of the NAB Amendment Act unconstitutional, instead focusing on amendments that it believes would have made it harder for NAB to prosecute public office holders.”

For Hassan A Niazi, “the best way to sum up the majority’s judgment is that the court has a very low opinion of parliament and politicians. It has a clear moral view on the impact of corruption on Pakistan and hence believes that it must protect any dilution of NAB’s powers to prosecute public office holders, regardless of how NAB has been historically used as a tool for political victimization.”

Lawyer Abdul Moiz Jaferii too has a similar opinion of the NAB law, calling it a “draconian and unnecessary law which should have been buried by the courts when it was first challenged in the Asfandyar Wali Khan case”. Giving his opinion on the judgment, the Supreme Court, says Jaferii, has now just “reverted the NAB law from the farce the PDM made it, to the earlier farce it was before the amendments.”

Meanwhile, reacting to the judgment on Friday, high court advocate Abuzar Salman Khan Niazi posted on X (former Twitter) that “We shouldn’t celebrate the Supreme Court judgment...It gives NAB all powers to abuse [the] process of law, become [an] instrument of oppression and help various quarters settle scores.”

According to constitutional lawyer Usama Khawar, “In the Khawaja Saad Rafique Bail judgment, Justice Maqbool Baqar elucidated how accountability laws have been weaponized to manipulate political allegiances and disrupt political parties....the judiciary’s involvement in this arena risks undermining the democratic process and the principle of popular sovereignty”.

For lawyer Waqqas Mir “the verdict is a surprising result. I remain unconvinced by the majority’s reasoning that these petitions were maintainable. In addition, the court appears to have adopted a novel and unrestrained theory according to which people’s fundamental rights are somehow violated if the elected representatives make changes to a criminal statute.”

Mir feels that “A law shouldn’t be struck down just because judges think it’s imperfect from a policy or morality oriented lens. Lesser convictions under a law, changing ingredients of offence or even outright decriminalizations aren’t novel. Yet the majority’s disdain for these amendments is surprising. I say surprising because there isn’t much solid legal reasoning in the majority’s verdict.”

Hassan A Niazi explains how the majority decision has viewed accountability as a right: “The majority’s main argument is that parliament was attempting to make NAB toothless, in turn making public property more vulnerable to corruption, and this violates the fundamental rights of the people. The court also draws on its previous jurisprudence in justifying that it has a role in creating an efficient regulator to curb corruption in the country.”

For him, this line of reasoning “is inherently problematic from the standpoint of separation of powers. The court not only ventures into the domain of parliament, it also significantly waters down parliament’s power to legislate on accountability laws, and perhaps as a consequence, many other criminal laws. The Supreme Court is keeping for itself the power to determine what should be a crime, an extraordinary expansion of its own jurisdiction at the expense of parliament.”

Khawar says that the verdict creates legal ambiguities and constitutional concerns since it “appears to confer a constitutional status upon NAB by deeming it a fundamental element of citizens’ constitutional rights, even though NAB is not explicitly mentioned in the constitution.”

Responding to how some people see the verdict as favouring a party, Mir warns that “a judgment that espouses, even celebrates, cynicism about the motives of elected representatives will not serve democracy or accountability in the long run. A resurgent NAB definitely doesn’t benefit the PTI or Imran Khan. The fact that Imran even took this to court shows his myopic worldview, not to mention an unenviable naive view of history and constitutional politics.”

Hassan A Niazi too is wary of the celebration and says that there is in fact “little to celebrate in this verdict” and that “those celebrating across the aisle should understand that accountability laws in Pakistan, from Toshakhana to NAB, have a history of abuse and it is only through political dialogue in parliament, rather than the courts, that these cycles of abuse can be addressed. Much like the jurisprudence of disqualification of politicians, I fear this judgment will one day come to haunt those politicians who are celebrating today.”

On the matter of Justice Mansoor Ali Shah’s dissenting note, Waqqas Mir says that, while the judge’s detailed reasons are awaited, “the factors he grounds his dissent in are undeniably important and hopefully one day will shape constitutional adjudication”.

For Hassan A Niazi, Justice Shah’s note “demonstrates his strong objection to the majority’s interference in parliament’s domain. After many years of countless judges pursuing their own legacy through judicial activism, it is refreshing to see a judge bringing a different perspective to the debate.”

Moiz Jaferii, however, says that though Justice Mansoor Ali Shah’s “dissent and his belief in the primacy of parliament makes for great reading, it is quite obvious that these amendments were made by self serving politicians who had bought and colluded their way into power precisely so they could stop the process of accountability against themselves by this method.” Jaferii adds that “There is a time to hold aloft the primacy of parliament. It is perhaps not that time when political leaders are busy giving themselves a get out of jail free card, when heavily evidenced cases against them were finally reaching conclusions.”

Offering a different perspective into the dissenting note, Hassan A Niazi feels that it is quite “possible that Justice Shah may have the last word on this issue. There will likely be a review petition filed against this judgment. Normally a review is heard by the same judges who gave the original decision, but with one judge gone [with CJ Bandial retired] the next chief will have to nominate a replacement. If the replacement has views similar to Justice Shah his views might well become the majority.”

A solution to the matter could be independence of accountability bodies, says Abuzar Salman Niazi who posted on X that “If we are serious about accountability, the best thing to be done is independence of NAB. Laws won’t do any good until and unless NAB acts as an independent authority.”