ISLAMABAD: As the Supreme Court reserved its verdict on a petition contesting changes to the National Accountability Bureau (NAB) law, members of the three-judge bench debated the power of parliament to enact legislation with retrospective effect.

After 53 hearings, the bench led by Chief Justice Umar Ata Bandial, while making a reference to the judgement, said something “short and sweet” would be released soon.

But before closing the case, Justice Syed Man­soor Ali Shah wondered when the petition asked for across-the-board acco­u­n­tability, why serving army officers’ corrupt pra­ctices have been removed from NAB’s purview.

Justice Shah recalled that as per the 2001 Khan Asfandyar Wali case, army officers have their own system of accountability under the Pakistan Army Act (PAA). But in the same vein, civil servants also have the Civil Servants Act, while the politicians also have their own system of accountability like the Elections Act 2017, but they are still subject to the NAB law.

Senior counsel Khawaja Haris Ahmed, on behalf of petitioner Imran Khan, explained that his client had not challenged Section 5(m) of the NAO, which bars NAB action against officers who come under the purview of the Pakistan Army Act.

Justice Shah also wondered when Article 209 of the Constitution deals with the removal of judges how the Supreme Judicial Council (SJC) could order the recovery of corruption money in case it ordered the removal of a superior court judge.

Senior counsel Makhdoom Ali Khan, on behalf of the previous government, explained that except for Article 209 of the Constitution, no action could be taken against retired judges.

Cases returned from NAB

During the hearing, Additional Prosecutor General Mumtaz Yousuf told the court that under the 2022 NAB amendments, 336 cases have been returned by accountability courts to NAB, whereas 24 have been transferred to relevant courts.

Likewise, under the 2023 amendments, 212 cases have been returned; 30 cases have been sent to relevant courts on grounds that no case of misuse of authority could be made out against the accused.

CJP Bandial regretted that the real allegation against the NAB was that it followed no criteria since sometimes it misused authority by proceeding against those involved in corruption involving less money.

The court again asked the NAB to furnish a complete report suggesting how many cases have been returned to the NAB by the accountability courts.

Debate on retrospective laws

During the hearing, the CJP wondered whether amendments to give retrospective effect would also change the meaning of the offence.

“What is the purpose of this retrospective effect,” the CJP observed, adding that would retrospective effect mean the end of the conviction and the return of the money allegedly misappropriated.

Justice Shah, however, asked whether parliament was entitled to make amendments to give retrospective effect; if so, could the court attribute malice to parliament for amending the law to this effect? “And if we can’t say anything against the parliament in this regard, then we have to live with it,” Justice Shah emphasised.

But Justice Ijazul Ahsan observed that parliament was not permitted to do everything and thus could not end offences by giving retrospective effect to laws. At this, Justice Shah again wondered which provisions of the law barred parliament from making laws with retroactive effect.

The CJP, however, observed that the NAB law could be amendment to provide retrospective effect but the past and closed transactions or cases which have reached finality should not be reopened.

Justice Shah wondered could the court send the amendments back to parliament for reconsideration. The CJP interjected saying if the judges find defects in the law, the law could be sent back to parliament but what do the courts do in the meantime? “How we can say defects [in law] should continue while parliament decides to reconsider the law,” Justice Ahsan observed.

Justice Shah conceded that the court could look into any law if it involves a violation of fundamental rights, asking how were the fundamental rights involved in the present case.

Justice Ahsan observed that if public property was misappropriated then the fundamental rights of every citizen were breached.

Khawaja Haris told the court that NAB had no authority to deal with the corruption references that have been returned by the accountability courts. Justice Shah said that the return of the cases “does not mean that these have been closed, or dissolved or dismissed rather currently no forum was available to send these cases”.

So far all the accused whose cases have been returned have gone straight to their homes while the cases were being dumped at the NAB office, argued Khawaja Haris. He said it was alleged by the other side that some amendments were done during the PTI government, but his client told the accountability watchdog that he would not benefit from these laws, the counsel said.

Published in Dawn, September 6th, 2023

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