Military officers, judges ‘fully liable’ under NAB law: Justice Shah

ISLAMABAD: Supreme Court’s Justice Mansoor Ali Shah issued a 27-page dissenting note on the NAB amendments verdict, observing that members of the armed forces and judges are accountable under the accountability laws. 

In a majority 2-1 verdict, the apex court on September 15 annulled some amendments made to the National Accountability Ordinance (NAO), 1999 during the tenure of the previous Pakistan Democratic Movement (PDM) government.

Headed by then-chief justice Umar Ata Bandial, the three-member bench included Justice Mansoor Ali Shah and Justice Ijazul Ahsan.

In the dissenting note issued on Monday, Justice Shah said during the course of over 50 dates of hearings in the case, the SC judge said a question was also raised as to whether the judges of the constitutional court and the members of the armed forces enjoy exemption from the NAB Ordinance.

“We must, therefore, strongly shun the above generally professed opinion and be clear that members of armed forces and the judges of the constitutional courts are fully liable under the NAB Ordinance, like any other public servant of Pakistan,” the judge observed.

Justice Shah observed that the courts should decide cases as per the law and Constitution even if the public sentiment is against them, highlighting the principle of “trichotomy of power,” saying no state organ can claim superiority over the other.

“Courts must rise above the ‘hooting throng’ and keep their eyes set on the future of democracy, undeterred by the changing politics of today. Courts unlike political parties don’t have to win popular support. Courts are to decide according to the Constitution and the law even if the public sentiment is against them,” wrote Justice Shah.

Raising objections to the majority verdict, the apex court judge said the country’s Constitution is based on the principle of trichotomy of power in which legislature, executive and judiciary have their separately delineated functions.

“The legislature is assigned the function to legislate laws, the executive to execute laws and the judiciary to interpret laws. None of these three organs are dependent upon the other in the performance of its functions nor can one claim superiority over the others,” he added.

The senior judge further said all state pillars enjoyed complete independence in their own sphere and “is the master in its own assigned field” under the Constitution.

“Any one of these three organs cannot usurp or interfere in the exercise of each other’s functions, nor can one encroach upon the field of the others”. He said that examining the legislation by keeping the interest of the legislators in front was tantamount to undermining the parliament and democracy.

On Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan’s objections to the amendments, Justice Shah said the learned counsel for the petitioner could not explain how the right to accountability of the elected holders of public offices through criminal prosecution under the NAB Ordinance is an integral part of the fundamental rights to life, dignity, property and equality or how it partakes of the same basic nature and character as the said fundamental rights so that the exercise of such right is in reality and substance nothing but an instance of the exercise of these fundamental rights.

“As discussed above, the learned counsel for the petitioner has utterly failed to clearly establish beyond any reasonable doubt that the challenged amendments to the NAB Ordinance are constitutionally invalid on the touchstone of ‘taking away’ or ‘abridging’ any of the fundamental rights, in terms of Article 8(2) of the Constitution. I find the petition meritless and therefore dismiss it,” read the note.

Justice Shah said the parliament through the challenged amendment, merely changed the forums for investigation and trial of the offences of corruption involving the amount or property less than Rs500 million.

After the amendment, he said the cases of alleged corruption against the holders of public offices that involve the amount or property of a value less than Rs500 million are to be investigated by the anti-corruption investigating agencies and tried by the anti-corruption courts of the federation and provinces respectively, under the Prevention of Corruption Act 1947 and the Pakistan Criminal Law Amendment Act 1958, instead of the NAB Ordinance.

“This matter undoubtedly falls within the exclusive policy domain of the legislature, not justiciable by the courts. In my opinion, this and other challenged amendments, which relate to certain procedural matters, in no way take away or abridge any of the fundamental rights guaranteed by the Constitution to the people of Pakistan.”