Chief Justice of Pakistan (CJP) Umar Ata Bandial on Friday observed that elections themselves were a form of accountability as he sought further arguments on a petition filed by PTI chief Imran Khan challenging the recent amendments to accountability laws.
The National Accountability (Second Amendment) Act 2022, which was passed by the National Assembly and Senate, earlier this week, has been criticised by the opposition PTI as an attempt by a government facing serious graft charges to defang NAB.
A three-member bench comprising the top judge, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, heard the case.
The CJP regarded described polls as a measure of “political accountability” in which voters hold their representatives answerable, while Justice Ahsan said that the court has to see if NAB laws violate the fundamental rights of the people.
‘Ask Imran why was he in favor of amendments earlier’
At the outset of the hearing today, Additional Attorney General Amir Rehman said that Advocate Makhdoom Ali Khan had been nominated as the federal government’s counsel in the case after which the court granted him permission to present his arguments.
Taking the stand, Makhdoom said neither the bar councils nor civil society had raised any objections to the NAB amendments.
Here, Imran’s lawyer Khawaja Haris pointed out that the Islamabad Bar Council had challenged the law in the high court.
Makhdoom said that efforts were being made to turn the Supreme Court into the “third chamber” of parliament. “Several NAB cases have been fought [over the years]. The honourable judges know what happens in the assets-beyond-means cases.
“Should we just believe that before 1999 the country was mired in corruption and there was no progress,” he asked, arguing that the economy today is in a difficult situation. “Nowadays, investors have stopped investing [money].”
The lawyer said that the president, instead of approving the NAB law, had sent a letter to PM Shehbaz Sharif, which included suggestions regarding the amendments. “We have made the letter part of the case too,” he stated.
Makhdoom said that Imran should be asked why he was opposing the amendment now when he himself was in favour of them earlier. “If this is a political strategy, he should use another forum instead of the court,” he contended.
To this, Justice Ahsan said that the court is not seeing who introduced the law, but whether it violates fundamental rights.
“Also tell us how NAB contributed to the economy,” Justice Shah asked.
The chief justice also remarked here that the economy was at the brink of collapse today. “The court also has to look at the public interest,” he said.
New NAB amendment
During the hearing, Justice Bandial said that some new amendments had been made to the NAB law,
According to the new bill, all corruption cases involving an amount under Rs500 million would not come in its purview.
Referring to it in the hearing today, Justice Ahsan asked if the bill would be included in the record of the court’s proceedings. “The clause on keeping corruption amounting to less than Rs500 million outside the jurisdiction of NAB was included in the first amendment,” he observed.
PTI’s lawyer replied that he had submitted an additional request in that regard and highlighted that the clause could have “grave consequences”.
Here, Justice Shah said that to challenge the bill, the petition would have to be amended.
Meanwhile, Makhdoom contended that the new law cannot be challenged until it becomes “an Act of the parliament”.
He argued that if the president does not sign the new amendment, the matter will go to a joint session. “It is too early to say whether the recent amendment to the NAB law will be approved in the joint session,” the lawyer added.
Subsequently, the chief justice remarked that the case is one in which the court will not act in haste. He also said that elections themselves were a form of accountability, adding that during the polls, the people held their leaders answerable.
Imran’s lawyer said that even the present amendments were a violation of the constitutional mandate, arguing that laws opposing the basic structure of the Constitution could be challenged.
He added that they — the government — had rendered the law ineffective.
Here, Justice Shah asked: “Is it our job to fill the empty spaces?”
‘Can amnesty be given to certain people under the law?’
Meanwhile, Justice Bandial, addressing Imran’s lawyer, said that his plea stated that there should be accountability on assets beyond means as it was a part of the fundamental rights.
“Good governance and accountability fall under fundamental rights,” he observed.
Separately, Justice Shah said that decision-making institutions could not be caught under the NAB amendments. “If a civil servant makes money, they can still be held answerable.
“If there is a crackdown on decision-making institutions, no one will invest in Pakistan,” he stated.
Justice Ahsan observed that under the NAB amendment law, the definition of assets in excess of income had been applicable since 1985. “This means that the law was formed decades ago but it is being defined now.”
He said that in such a case, punishments from the past will have to be repealed and fines will have to be returned. “There will be demands for a refund of the money deposited in the national treasury through plea bargains,” Justice Ahsan said.
He then inquired: “Can amnesty be given to certain persons by making a law?”
For his part, Haris said that even Hazrat Umar (RA) was questioned about excess income, claiming that the NAB amendment was an “abuse”.
However, Justice Shah interjected that a law cannot be struck off just on the basis of abuse, highlighting that parliament was a reflection of the people’s principles.
“It is true that the parliament is subject to Constitution,” he said, but added that he was personally against the argument that amendments in the law could not be against the basic structure of the Parliament.
Subsequently, the court asked the lawyers to submit detailed written responses in the case and adjourned the hearing till August 19.
In his petition, the ex-premier named the Federation of Pakistan through its secretary Law and Justice Division and the NAB through its chairman as respondents in the case.
Imran requested the court to adjudicate upon questions of “great public importance” with reference to the enforcement of fundamental rights of citizens under articles 9 (security of a person), 14 (inviolability of dignity of a man, etc), 19A (right to information), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution.
Most of the amendments brought into NAB, he argued, were person-specific. “As such, it is just and fair to protect the constitutional and fundamental rights of the citizens of Pakistan.”
The petition added that the amendment hands over the president’s right to appoint the body’s chairman to the government which will “maneuver by the bulk of the holders of public office to assume control over and influence the impartiality of the NAB chairman.”
“The removal of hurdles in the normal time-tested and universally adopted methods of proving ‘white collar crimes’, reducing the efficacy, transparency, and fairness of these laws coupled with a free and independent judiciary, and freedom of the investigators and the prosecutors from the influence and interference of those very chosen representatives whose alleged corruption and corrupt practices they are tasked to investigate and prosecute.”
He cautioned that making accountability law “weak and ineffectual” was a severe breach of the Constitution and underscored that the people of Pakistan had the right to hold their elected representatives accountable for their fiduciary actions.
NAB law amendment
The NAB (Second Amendment) Bill 2021 states that NAB’s deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.
The bill has also reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years. After approval of the law, NAB will not be able to act on federal, provincial or local tax matters. Moreover, the regulatory bodies functioning in the country have also been placed out of NAB’s domain.
It says that “all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions … shall stand transferred to the concerned authorities, departments and courts under the respective laws.”
It has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB to ensure the availability of evidence against an accused prior to his or her arrest.
According to one of the key amendments, the act “shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999”.