NAB cases against politicians back to square one

In a 2-1 verdict, top court strikes down some amendments to NAB laws n Orders to restore all inquiries, investigations against public office holders, mostly senior politicians n I am unable to agree with my colleagues, notes Justice Mansoor Ali Shah n NAB and all accountability courts are directed to proceed with restored proceedings in accordance with law: CJP.


ISLAMABAD  -  The Supreme Court of Pakistan Friday in a majority 2-1 verdict annulled some amendments made to the National Account­ability Ordinance (NAO) 1999 during the tenure of the previ­ous Pakistan Democratic Move­ment (PDM)-led government.

Besides striking down some amendments, the apex court also ordered to restore the cor­ruption cases against public of­fice holders that were with­drawn after amendments were made to the accountability laws.

In this regard, a three-member bench of the Supreme Court head­ed by Chief Justice of Pakistan Jus­tice Umar Ata Bandial and com­prising Justice Mansoor Ali Shah and Justice Ijazul Ahsan issued the verdict which it had reserved on September 5 after conduct­ing 50 hearings on the petition of Chairman Pakistan Tehreek-e-In­saf (PTI) Imran Khan against the amendments in accountability laws. However, Justice Shah is­sued a dissenting note in the NAB amendments case.

In the majority verdict, the apex court noted that the titled Constitution Petition is maintain­able on account of violating Arti­cles 9 (security of person), 14 (in­violability of dignity of man), 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. It stated, “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 Rs.500 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 in so far 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.”

It added that Section 3 of the Second Amendment and Sec­tion 2 of the 2022 Amendments pertaining to Sections 5(o) and 4 of the NAB Ordinance are de­clared to be valid 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 Chief Justice wrote, “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. To this extent Section 8 of the First Amend­ment is declared void.” He fur­ther said 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. He added, “Section 14 and Section 21(g) of the NAB Ordinance are restored from the date of com­mencement of the First Amend­ment. Consequently, Sections 10 and 14 of the First Amendment are declared void; and 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. Therefore, Section 14 of the Second Amendment is void to this extent.”

“On account of our above find­ings, all orders passed by the NAB and/or the Accountability Courts placing reliance on the above 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 fora. The NAB and all Accountability Courts are directed to proceed with the restored proceedings in accordance with law,” main­tained the CJP.

He held, “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 which shall be pro­ceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned.”

He maintained, “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 Rs.500 million Parlia­ment has effectively absolved them from any liability for their acts. 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).”

However, Justice Shah is­sued a dissenting note in the NAB amendments case saying, “I have read the judgment au­thored by the Hon’ble Chief Jus­tice of Pakistan to which my learned brother Justice Ijaz ul Ahsan has concurred (“major­ity judgment”) provided to me last night. With great respect, I could not make myself agree to it. 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, he added, “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 Shah stated that in his humble opinion, the primary question in this 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. “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 the Parlia­ment, without any clear violation beyond reasonable doubt, of any of the fundamental rights guar­anteed under the Constitution or of any other constitutional pro­vision,” added the judge. He con­tinued, “The majority judgment has fallen short, in my 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 recognize 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.”

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