ISLAMABAD: The attr­i­bution of malice of “colourable exercise of jurisdiction” to parliament in amending NAB laws sha­kes the foundations of parliamentary democracy, Justice Syed Mansoor Ali Shah observed during a hearing on Thursday.

He was part of a three-judge bench which had taken up the challenges by former prime minister Imran Khan to the August 2022 amendments to the National Accountability Ordinance (NAO).

“We, the unelected 17 people (judges), can touch legislation made by representatives of 250 million only when it violates Art­icle 8 of the Constitution, which bars enactments in derogation of fundamental rights,” Justice Shah observed.

He contested an impression that the Rs500 million threshold, which entitles the National Accoun­ta­bility Bureau (NAB) to take cognisance of corruption allegations, means that an accused who has committed corruption inv­o­lving an amount below that limit would go scot-free. He can be tried by another forum, Justice Shah argued.

“When the parliament in its wisdom wants this to happen, how can we attribute any malice to parliament,” Justice Shah wondered.

Could the court put a clog on parliament if it concluded that the investigation had been very costly and to no avail, the judge added.

But Khawaja Haris Ahmed, the counsel for Imran Khan, contended it would amount to a colourable exercise of jurisdiction, adding this court could put a clog on parliament since corruption affects fundamental rights, especially when the apex court in the past had taken cognisance under Article 184 (3) of the Constitution on the wastage of public money.

“You want to say that colourable exercise is when the accused gets exonerated because of amendments to the NAB law,” observed Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial.

The CJP asked the petitioner’s counsel to cite judgements in which the phrase “colourable exercise of jurisdiction” has been used.

Fundamental rights the key

Justice Ijazul Ahsan observed that the Supreme Court could examine and strike down laws on the touchstone of “colourable exercise of jurisdiction” by parliament if it affects fundamental rights.

“The ingredient still is the fundamental right and this is exactly what we are trying to search for the last many hearings in the petition challenging the amendments in NAB laws,” Justice Shah observed.

The effect of setting the threshold of Rs500m in the NAB law is that the provision of plea bargain has become redundant since an accused who enters into plea bargain, instead of paying the settled instalments, will now try to contest the case in an accountability court where NAB would argue the case was not in their jurisdiction, the counsel contended.

The CJP said the 2022 amendments had put the entire investigation against an accused for committing corruption in limbo since the new law did not provide any mechanism to transfer the reference or assigning it to any other forum. “This is a major omission.”

The CJP observed the entire system grinds to a halt if the administrative machinery suffers from a lack of timely decision-making. This is the reason why many public sector organisations, for example the Pakistan International Airlines, or the electricity distribution network., are running losses, Justice Bandial added. In Karachi the authorities have tried to address the issue of line losses, the CJP said.

Senior counsel Makhdoom Ali Khan contended on behalf of the government that the major reason for line losses was the “Kunda” system (electricity theft).

The counsel contended that load-shedding was confined to areas where electricity bills were not paid, but when the K-Electric tried to enforce this decision, the Supreme Court restrained the utility from doing so.

Now laws are enforced on affluent areas where the consumer has the capacity to pay bills, but no law is enforced where no bills are paid as the administration feels a law and order situation might ensue, the counsel said.

Referring to the Rs500m threshold, the counsel recalled the court judgments in which NAB was asked to focus on mega corruption, adding the criteria of Rs500 million was not irrational.

The Supreme Court may consider these amendments as dilution of penalties, but for some it may be rationalisation of the law. “Change in a law is not unconstitutional,” he added.

The case will be taken up again on Friday.

Published in Dawn, September 1st, 2023

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