Imran should have raised concerns against NAB amendments in parliament instead of SC, observes Justice Shah

Published October 5, 2022
<p>From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website</p>

From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website

Justice Syed Mansoor Ali Shah of the Supreme Court said on Wednesday that former prime minister and PTI chairman Imran Khan should have approached the parliament regarding his reservations against recent amendments to the National Accountability Bureau (NAB) ordinance instead of bringing the matter to the apex court.

Justice Shah is a part of the three-member Supreme Court bench — also comprising Chief Justice of Pakistan Umar Ata Bandial and Justice Ijazul Ahsan — that took up Imran’s plea, which claims the new NAB laws are and “violation of fundamental rights”.

During the hearing today, Justice Shah said that the public had trusted Imran by electing him a member of the National Assembly. “Why did he leave the assembly without the wish of the people of his constituency?” he inquired, adding that the PTI chief could have raised his objections against the NAB ordinance in the parliament as well.

The hearing

At the outset of the hearing today, Imran’s lawyer Khwaja Haris presented his arguments before the bench, claiming that the new amendments had rendered the accountability law “ineffective”.

“In the past, the Supreme Court had declared corruption cancer for the country,” he recalled. “Public officeholders were never given exemption in any accountability laws that were made.

“And the law for them [public officeholders] has been the same since 1949,” Imran’s counsel argued, adding that holding a public office was a “sacred responsibility”.

At this, Justice Shah said that the court could not do anything if the parliament had abolished a law. “Has the court ever restored a repealed law before?”

Haris replied that in 1990, the court had restored a repealed law.

At one point during the hearing, CJP Bandial remarked that the parliament was only submissive towards the Constitution and shariah.

Justice Ahsan concurred and said that accountability was a fundamental principle of Islam.

Continuing his arguments, Haris said that important changes had been made to the accountability laws regarding plea bargains. “Those who do not pay instalments of the plea bargain have been facilitated [under the new law].”

The lawyer contended that earlier, action was taken against those who failed to pay the plea bargains. “After the amendment, the plea bargain of the non-payer will expire,” he said, adding that if the corruption case was regarding an amount of less than Rs50 million, the charges against the accused would be automatically removed.

“Under the amendment, the accused can claim the amount of plea bargain deposited after being acquitted,” he pointed out. “A person who has paid the full plea bargain amount can also ask for the money deposited.”

Here, Justice Bandial observed that this way the state would have to pay billions of rupees.

Justice Shah also wondered if taking money from the accused under pressure was correct. To this, Haris replied that the plea bargain was only approved by the accountability court.

“But if the accused is under pressure, they can let the court know,” the lawyer added.

Subsequently, the court adjourned the hearing till Oct 6.

Imran’s petition

In his petition, Imran Khan had claimed that the amendments to the NAB law were made to benefit the influential accused persons and legitimise corruption.

The coalition government led by the PML-N had introduced 27 key amendments to NAO, but President Dr Arif Alvi did not accord his assent to these. However, the bill was adopted in a joint sitting of parliament and notified later.

The petition pleaded that the fresh amendments tend to scrap corruption cases against the president, prime minister, chief ministers and ministers and provide an opportunity to the convicted public office-holders to get their conviction undone.

“The amendments to the NAO is tantamount to depriving 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,” the petition argued.

Moreover, the word “benamidar” has been re-defined, making it difficult for the prosecution to prove someone as fictitious owner of a property, the petition argued.

The application has also challenged the second amendment to the law done by the coalition government on Aug 16 in which offences involving misappropriation of less than Rs500 million were taken out of the purview of the law.

Moreover, absconders who were punished under Section 31 of the ordinance in absentia were also taken out.

The petition stated that most of the changes were ‘person specific’.

The petitioner pleaded that it would be just and fair in protecting the constitutional and fundamental rights of the citizens that NAB should be asked to provide details of all cases, which relate to prominent and influential holders of public office, especially regarding cases pertaining to offences of owning assets (movable and immovable) beyond known sources of income and misuse of authority.

However, the petitioner feared, the recent amendments operated to preemptively exonerate public office holders or their co-conspirators from offences of corruption.

The petition claimed the amendments were also ultra vires of the fundamental rights guaranteed to people in articles 9, 14, 18, 24 and 25 of the Constitution.

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”.

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