Imran moves SC against changes in NAB law

ISLAMABAD: Former prime minister and Pakistan Tehreek-e Insaaf Chairman Imran Khan Saturday challenged in the Supreme Court the government’s recent amendments made to the NAB law, saying that they have the effect of legitimising certain forms of corruption and creating select islands of unaccountability so as to exclude from the prosecution under National Accountability Ordinance (NAO) 1999.

He filed the petition under Article 184(3) of the Constitution through Khwaja Haris making the Federation of Pakistan through the Law and Justice Division Secretary and the National Accountability Bureau (NAB) as respondents.

He prayed the apex court to declare that amendments made by the National Accountability (Amendment) Act (XI of) 2022 are ultra vires of the Constitution of the Islamic Republic of Pakistan and violative of the fundamental rights of the people of Pakistan as guaranteed by Articles 9, 14, 19A, 24 and 25 of the Constitution, and to direct that accordingly these amendments be struck off from the statute books.

In his petition, the PTI chairman submitted that the parliamentary form of government blended with Islamic provisions is a salient feature of our Constitution, adding that it is not sustainable without accountability of those who are chosen by the people to govern them.

He submitted that the impugned amendments to the NAO, 1999, have deprived the citizens of Pakistan of having access to law to effectively question their chosen representatives in case of breach of their duty towards the people of Pakistan and, as such, are violative of their fundamental right to life, dignity and protection of property as guranteed by Articles 9, 14 and 24 of the Constitution.

The fundamental right to life in terms of Article 9 of the Constitution includes the right to social, economic and political justice, but this right too, in-effect, stands denied to the people of Pakistan because of the immunities introduced to the law of accountability vide the impugned amendments, he submitted.

The former premier submitted that the impugned amendments, insofar as these operate to place certain classes of offences committed by holders of public office beyond the grasp of law in matters involving corruption and corrupt practices, are designed to nullify the provisions relating to qualifications of holders of public office, especially those enumerated in paragraphs (d) and (f) of clause (i) of Article 62 of the Constitution.

He submitted that the re-definition of the word “Benamidar” has been introduced (to clause (e) of Section 5 of NAO, 1999) so as to pave the way for providing benefit of acquittal to all those accused who are facing trial, or have faced trial, for offences involving allegations of holding benami assets beyond their known sources of income, notwithstanding that these accused were/are not in a position to “reasonably account for” the sources from which these assets were purchased, nor prove “payment of full and lawful consideration.”

The PTI chairman submitted that Explanation II to Section 9(a)(v), as introduced by the impugned amendments, is also person/s specific and designed to provide instant grounds for acquittal in all such cases wherein fake accounts are alleged to have been opened to route money obtained from corruption and/or corrupt practices, or to conceal ownership of movable assets beyond the known sources of income of the accused.

By introducing Explanation II to Section 9(a)(v) of NAO, 1999, the federation has, indeed provided a clean chit to, inter alia, those holders of public office in particular who had periodically deposited with and thereafter withdrawn from their bank accounts, (or from “fake” bank accounts got opened or controlled by them), the ill-gotten gains acquired by them from corruption and corrupt practices, and, as such, the Explanation II has also been introduced by holders of public office to help them get exonerated from prosecution in pending cases relating to such accounts. He submitted that this is, therefore, a nullity in the eye of law, and liable to be struck down under Article 184(3) of the Constitution.

Similarly, the PTI chairman contended that by removing Section 14 from the NAO, 1999, the impugned amendment has ensured that it becomes impossible for the prosecution to prove white collar crimes against the holders of public office, and, as a corollary, for the people of Pakistan to hold their chosen representatives accountable for their corruption and corrupt practices, and has thereby violated the fundamental rights of the people of Pakistan under Articles 9, 14, 19A and 24 of the Constitution.

He contended that deletion of Section 14 from the NAO, 1999, is not only designed to provide blanket immunity to all categories of white collar crimes falling under the NAO, 1999, i.e. law applicable to holders of public office, this deletion is also violative of the fundamental right of equality as guaranteed by Article 25 of the Constitution.

“That the impugned amendments are tantamount to deliberately turning a blind eye to corruption, in so far as they exclude from prosecution, all those persons who have illegally gained or benefitted from the corruption and corrupt practices of a holder of public office, only because there is no trail of evidence left by the holder of public office (who conferred the benefit), or any other person acting on his behalf, that such holder of public office, or person acting on his behalf, had received monetary benefit from the transaction, and as such, the impugned amendments are repugnant to the fundamental rights of the people of Pakistan on this score as well.”

The former prime minister further submitted that the omission of clause (g) of Section 21 of the NAO, 1999, is also person/s specific and is designed to negate and frustrate the entire process of and material collected against inter alia holders of public office as a result of International co-operation by way of request for mutual legal assistance as mandated by clauses (a) to (g) and (h) of Section 21 and is, therefore, aimed at preventing evidence gathered or obtained from abroad regarding corruption and corrupt practices of holders of public office who own assets abroad from being used against them.

“By virtue of the impugned amendments, not only all the cases of the category mentioned in Section 4(2)(b) of the NAO, 1999, pending trial against, inter alia the ministers, chief ministers, prime ministers and a president stand virtually terminated, even those ministers, chief ministers or prime ministers, as much as all other holders of public office, and prime ministers who may already stand convicted prior to the promulgation of the impugned amendments, have also been provided an opportunity to have their respective convictions undone by taking advantage of the amendments made effective retrospectively, i.e. from the date of commencement of the NAO, 1999, and that too without any clause saving past and closed transactions, he contended.

The PTI chairman further submitted that the amendment whereby the authority to appoint the NAB chairman has been taken away from the President of Pakistan, and has been placed in the hands of the government, is also a maneuver by the bulk of the Holders of Public Office to assume control over and influence the impartiality of the NAB chairman.

He prayed the apex court to declare that amendments made by the National Accountability (Amendment) Act (XI of) 2022, insofar as they substitute Sections 1(2), 2, 4, 5(c)(e)(q) and (s), 6 (insofar as it empowers the government in place of the president as the appointing authority for the Chairman NAB), Section 9 (a)(v),(vi),(ix), Section 10(d), Section 18, proviso to sub-section (b) of Section 25, and proviso in Section 26, and further substitute the words “National Assembly and the Senate” in place of “President” in Section 33D, and also insofar as they omit Section 14, sub-section (b) in the proviso to sub-section (a) of Section 15, clause (g) of Section 21,and Section 23, are ultra vires of the Constitution of the Islamic Republic of Pakistan and violative of the fundamental rights of the people of Pakistan as guaranteed by Article 9, 14, 19A, 24 and 25 of the Constitution, and to direct that, accordingly these amendments be struck off from the statute books.