Legal triumph but ethical questions linger: experts

KARACHI: Legal experts view the Supreme Court’s Friday verdict in the NAB Amendments case as a necessary correction. Some, however, criticize the decision from a moral perspective, arguing that while the ruling aligns with legal doctrines, the amendments remain ethically questionable. The verdict will also provide the PTI some respite in its cases, say lawyers.

On Friday, the Supreme Court overturned an earlier apex court ruling that had nullified the amendments to the National Accountability Ordinance (NAO), 1999. A five-member bench led by Chief Justice Qazi Faez Isa accepted intra-court appeals against the September 2023 judgment that had struck down most amendments made to the NAO by the PDM-led government in 2022. The court found that the petition filed by PTI chief Imran Khan failed to prove that the amendments were unconstitutional.

How do legal experts see this verdict and what are the possible repercussions it could have? High court advocate and former faculty at LUMS Hassan Abdullah Niazi sees the decision as a “necessary correction”, saying that the earlier decision by the SC “was based more on the majority’s own moral views on corruption in Pakistan rather than any legal doctrine. This made the judgment inherently problematic from the standpoint of the separation of powers.”

Niazi sees Friday’s judgment in light of what the courts can and cannot do: “It is not the role of courts to make policy decisions regarding the best way to counter corruption as they lack the expertise and the democratic mandate to do so. Courts can only strike down legislation where there is a clear violation of the constitution -- and the original judgment failed to demonstrate any such violation apart from vague references to various fundamental rights.”

Imran Khan’s petition against the amendments was dismissed by the court “on the grounds of maintainability without having to concern itself with the merits of the case”, says Supreme Court advocate Basil Nabi Malik who says the verdict “gives rise to questions about case management in the Supreme Court.” In particular, he asks, “how could this matter, like so many others, be allowed to consume so much time, effort, and resources, before finally being dismissed, eventually?”

The verdict “attempts to uphold parliamentary wisdom, and the right of legislators to undo what they have previously done” which Malik calls “commendable” while also cautioning that “the subsequent trajectory of delivered judgments will indicate as to whether the line drawn is permanent, or merely another line in the sand.”

While the verdict has dismissed Imran’s 2022 petition, the PTI has responded to it with favour claiming the verdict means that the Al-Qadir and other such cases will no longer be able to go ahead.

Regarding this claim, lawyer Abdul Moiz Jaferii says the judgment is really a “lose-win for Imran Khan. The Al-Qadir trust cases cannot proceed after the amendments which are now back in the field.” How? The amendments essentially “limit NAB’s jurisdiction to inquire into matters related to decision making by the cabinet.” Barrister Ali Tahir explains this further: “Under Section 4(2) (as amended) decisions of the federal or provincial cabinet (and other such bodies) -- except where the holder of the public office has received a monetary gain as a result of such decision -- are out of NAB’s jurisdiction.”

The same does not hold for the Toshakhana case -- since the case made is beyond the Rs500 million benchmark. [Under the NAB amendments, NAB’s jurisdiction is limited to cases involving corruption of Rs500 million rupees or more].

Jaferii agrees that the verdict is “a correct reading of the law” and that legislation “must meet the test of unconstitutionality if being struck down and cannot operate on feigned considerations of general rights of the citizenry as was attempted by the majority of the three-member SC bench. Justice Shah’s dissent in the original decision was absolutely clear on this and it is satisfying to see a five-member appellate bench concur with his position.”

According to constitutional expert Hafiz Ehsaan Ahmad Khokhar, “the Supreme Court made significant legal observations regarding the impugned judgment, emphasizing that legislation should not be treated on the same level as executive actions.” Khokhar criticizes the earlier judgment for failing to test the amendments against the constitution and for applying its own criteria, which he says “is not constitutionally permissible”.

However, there is another view regarding Friday’s verdict -- one that sees the matter through a moral lens. Barrister Tahir feels that the majority’s view that the petitions were non-maintainable because the Practice and Procedure Act required a five-member bench to hear the original petition is incorrect. He also does not agree with the reasoning that Imran Khan did not approach the SC in a bonafide manner since when he was prime minister similar amendments were made, pointing out that the SC “cannot go into the political realm, and the political antecedents of politicians are not what the SC should be concerned with.”

Although agreeing that “the judgment under appeal could not clearly decipher how fundamental rights were breached other than in boldly vague terms” and also supporting the verdict “on the grounds of trichotomy of powers”, Barrister Tahir adds that per him “on the moral and ethical plane, these amendments are completely malafide”.