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some amendments, the apex court also ordered to restore the corruption cases against public office holders that were withdrawn after amendments were made to the accountability laws.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