Special Assistant to the Prime Minister on Accountability, Irfan Qadir, said on Thursday that matters of superior court judges could be referred to the National Accountability Bureau (NAB) if they have “criminal overtones” or an “element of corruption”.
“The National Accountability Ordinance has the jurisdiction and NAB can be referred to … there is no sacred cow for this law,” Qadir said in a news conference in Islamabad.
Qadir’s remarks come at a time when Parliament has passed a law to curtail the suo motu powers of the chief justice through the Supreme Court (Practice and Procedure) Act, 2023.
“There is only one category,” Qadir said. “And that is our superior court judges for whom confusion was created [with regard to laws].”
He added: “It was said that their matters were to be referred to the Supreme Judicial Council (SJC). Today I want to clarify that, yes, [judges’] matters do go to the SJC. However, where there are elements of corruption that attract criminality — that require criminal proceedings — it is there that they can be tried under this [accountability] law.”
Qadir said that in the past several years, even as prime ministers were disqualified and their governments were lost, “our Supreme Court ordered that their cases should be referred to NAB, who should investigate them and file references [against the PMs]”.
“Superior court judges’ matters will definitely be referred to the SJC, and if there are criminal overtones and an element of corruption … NAB has jurisdiction and they can look into it. There is no sacred cow [for] this law.”
The former attorney-general also spoke about audios that circulated on social media in February, allegedly linked to a sitting Supreme Court judge. The leaked audios were claimed to contain conversations between the judge and prominent politicians as well as specific lawyers. On May 20, the government formed a three-judge commission under Justice Qazi Faez Isa to investigate the veracity of the clips. Within days, a five-judge bench of the apex court halted the panel’s proceedings.
Qadir added that it appeared that the judicial system was being “manipulated by certain people on the outside” and that “there were indications of an element of corruption”.
Considering these matters, he said, the government exercised “extreme caution” to form the commission comprising fellow judges to investigate the matter.
“This was a fair opportunity provided to the judges to prove their innocence. If the commission’s report had come out favourable then the matter would not have been referred to the supreme judicial council or the anti-corruption institutions,” Qadir said.
He added that it was unfortunate that the SC itself ordered a stay on this order.
He stated that the Supreme Court (Practice and Procedure) Act, 2023, empowered the SC and protected the chief judge from allegations but instead, the courts formed a bench against the act and stopped it from being instated.
“The government and the parliamentarians tried their best to protect the apex courts from the allegations against the chief,” he stated.
“No one has the fundamental right where they can stop law-making before it is implemented,” Irfan added while referring to the SC’s stay orders against the act.
Bill becomes law
Article 184(3) of the Constitution sets out the Supreme Court’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The bill, titled the Supreme Court (Practice and Procedure) Bill 2023, was aimed at depriving the office of the CJP of powers to take suo motu notice in an individual capacity.
The draft law was initially passed by both houses of Parliament in March and sent to the president for his assent. However, the president had sent it back, saying that the proposed law travelled “beyond the competence of parliament”. The bill was subsequently adopted by a joint session of parliament on April 10 — albeit with some amendments.
Meanwhile, the top court — while hearing three petitions challenging the then-bill — in an “anticipatory injunction” on April 13, barred the government from enforcing the draft law, saying the move would “prevent the imminent apprehended danger that is irreparable” as soon as it became an act of parliament.
“The moment that the bill receives the assent of the president or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the act that comes into being shall not have, take or be given any effect nor be acted upon in any manner,” said the interim order issued by the eight-member bench.
The ruling coalition government was swift to reject the apex court’s ruling and on April 19 the president again refused to give his assent and sent the draft law back to Parliament.
Despite this, the bill technically became an act of parliament on April 21 under Article 75(2) of the Constitution, and despite the court’s order halting the law’s implementation, the National Assembly Secretariat formally asked the Printing Corporation of Pakistan (PCP) to publish it in the official gazette.
Article 75(2) of the Constitution says that when the president has returned a bill to the parliament, it shall be reconsidered in a joint sitting. If it is again passed, with or without amendment, by the votes of most members of both houses, it is again referred to the president for their assent. If the bill was not signed by the president within 10 days, their assent would have been deemed granted.
According to the legislation, a three-member bench consisting of the CJP and the two senior-most judges of the apex court will decide whether to take up a matter suo motu. Previously, this was solely the prerogative of the chief justice.
The law also states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench, which would be formed by a committee comprising the chief justice and the two senior-most judges.
The legislation also includes the right to file an appeal within 30 days of the judgement in a suo motu case and that any case involving constitutional interpretation would not have a bench of fewer than five judges.
The law would allow former prime minister Nawaz Sharif and other parliamentarians disqualified by the Supreme Court under suo motu powers (such as Jahangir Tareen) to appeal their disqualification within 30 days of the law’s enactment.