SC orders restoration of corruption cases against public office holders

Published September 15, 2023
From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website
From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website

In a 2-1 verdict, the Supreme Court (SC) on Friday ordered the restoration of corruption cases against public office holders that were withdrawn after amendments were made to the country’s accountability laws.

The reserved verdict was announced by a three-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah on PTI Chairman Imran Khan’s 2022 petition challenging amendments made to the accountability laws.

CJP Bandial and Justice Ahsan declared Imran’s plea to be maintainable while Justice Shah disagreed with the majority verdict, according to which not just the corruption cases but also the inquiries and investigations were directed to be restored.

The court also declared some amendments to the accountability laws to be contrary to the Constitution and struck them down.

These included one that limited the National Accountability Bureau’s (NAB) jurisdiction to cases involving over Rs500 million and one that allowed the accused to claim the amount of plea bargain deposited after being acquitted.

The court directed that the cases that were withdrawn after NAB’s jurisdiction was limited to investigating cases below Rs500m be fixed for hearing in accountability courts.

The court also declared null and void the verdicts issued by the accountability courts in light of the amendments made to the laws.

In a written order issued in the evening, a copy of which is available with Dawn.com, the court said: “All inquiries, investigations, and references which have been disposed of on the basis of the struck down sections are restored to their positions prior to the enactment of the 2022 Amendments and shall be deemed to be pending before the relevant fora.”

It also directed the NAB and accountability courts to proceed with the restored proceedings in accordance with the law.

“The NAB and/or all other fora shall forthwith return the record of all such matters to the relevant fora and in any event not later than seven days from today which shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned,” the order added.

Meanwhile, in his dissenting note, Justice Shah said the primary question raised in the case was not about the “alleged lopsided amendments introduced in the NAB law by the Parliament but about the paramountcy of the Parliament”.

He said the question was about the constitutional importance of parliamentary democracy and separation of powers between the three state organs, as well as the limits of the jurisdiction of the court, comprising unelected judges, “second judging the purpose and policy of an enactment passed by the Parliament, without any clear violation beyond reasonable doubt, of any of the fundamental rights guaranteed under the Constitution or of any other constitutional provision”.

The judge said the majority verdict had “fallen short” in recognising the constitutional command that the state would exercise its power and authority through the chosen representatives of the people and in recognising the principle of trichotomy of powers, which Justice Shah was the “foundation of parliamentary democracy”.

“Without setting out a clear and objective test for determining how the claimed right to have accountability of the parliamentarians is an integral part of any of the fundamental rights guaranteed under the Constitution, the majority judgment through a long winding conjectural path of far-fetched ‘in turn’ effects has tried hard to ‘ultimately’ reach an apprehended violation of the fundamental rights,” the dissenting note reads.

It concluded that the majority judgement had thus “fallen short to appreciate that what Parliament has done, Parliament can undo; the legislative power of the Parliament is never exhausted. If the Parliament can enact the NAB law, it can also repeal the entire law or amend the same.”

In June 2022, the PTI chief had moved the apex court against amendments made to the National Accountability Bureau (NAB) ordinance under the National Accountability (Second Amendment) Act 2022.

The amendments made several changes to the National Accountability Ordinance (NAO) 1999, including reducing the term of the NAB chairman and prosecutor general to three years, limiting NAB’s jurisdiction to cases involving over Rs500 million, and transferring all pending inquiries, investigations, and trials to the relevant authorities.

In his petition, the PTI chief had claimed that the amendments to the NAB law had been made to benefit influential accused persons and legitimise corruption.

In recent hearings, Justice Shah had repeatedly urged for a full court to hear the case, citing the frozen Supreme Court (Practice and Procedure) law.

However, CJP Bandial had opposed it, noting that his retirement was near and the matter had already been pending before the court for a considerable time — since at least July 19, 2022.

The SC had reserved its verdict in the case on September 5, after 53 hearings, with the members of the three-judge bench debating the power of parliament to enact legislation with retrospective effect. Making a reference to the judgement, the bench had said something “short and sweet” would be released soon.

Speaking to the media outside the SC after the verdict was announced, PTI lawyer Shoaib Shaheen said that the first order of business of the previous Pakistan Democratic Movement (PDM) government was to introduce amendments to the NAB laws.

He said that the amendments had been declared to be a violation of Articles 9 (security of person), 14 (inviolability of dignity of man, etc) and 89 (power of president to promulgate ordinances) of the Constitution.

He further said that cases that were below Rs500m had been restored after today’s verdict. He further said that the previous government had introduced several changes in order to benefit itself.

“The amendments were prepared by the Sharif family’s personal lawyers,” he alleged. At the same time, Shaheen said that the NAB was still being used to target Imran.

Mixed reactions from politicians

Former interior minister Rana Sanaullah congratulated the PTI and Imran for today’s verdict, snarking that the party would now be punished by the “draconian law” the same way the PML-N did.

“I was always of the opinion that the NAB law should not have been changed so that other people too could suffer the way we did. But sense prevailed and amendments were made to the law,” he recalled.

But now, the PML-N leader continued, the PTI would now have to undergo the same “difficulties that we did”.

“They won’t be able to go to court and get bails in dozens anymore. This is karma … we have suffered remands and inquiries in our cases, now the tables have turned,” Sanaullah added.

PPP Chairman Bilawal Bhutto-Zardari said the decision was “expected”.

“We have an established and clear stance about NAB: it is a dictator-made institution that should cease to operate,” he stated.

Bilawal mentioned that he had not read the SC verdict but stated, “It is sufficient to say that it was expected.” He went on to say that the PPP had fought NAB cases against its members before, irrespective of whether they were filed under the new law or the old law.

Former PTI leader Fawad Chaudhry said the verdict had restored the corruption cases against the “former ruling junta”. At the same time, he said that the issue had highlighted the need for a charter of democracy as “no one believes [that] the NAB law needs no amendments”.

“A majority do want amendments to bring fairness and transparency in NAB cases. This should include live coverage of court cases and remand provisions,” he said.

Reacting to the SC’s verdict, former PPP leader Mustafa Nawaz Khokhar said that NAB was the “stick used by our establishment to whack politicians in line”.

“It’s ironical that the SC, which itself has decried NAB’s role in victimisation and political engineering, has strengthened it once again,” he said.

The petition

In his petition, Imran had claimed that the amendments to the NAB law had been 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 convictions 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 a fictitious owner of a property, the petition argued.

CJP Bandial bids adieu

Earlier in the day, CJP Bandial had greeted the lawyers and reporters in the courtroom with a final “good to see you”.

The lawyers present in the courtroom praised the apex judge’s patience and expressed their well wishes for him.

Presiding over a hearing alongside Justice Muhammad Ali Mazhar and Justice Ayesha Malik, the CJP took the chance to reflect on his tenure as top judge.

Justice Bandial said he “always worked while keeping God’s pleasure in mind”, adding that it was his duty to do so.

Thanking journalists, he said he “welcomed criticism from the media”. While saying that criticism on verdicts was welcome, CJP Bandial emphasised, “When you criticise a judge, make sure that it is based on facts.”

The outgoing CJP noted that “black coats always remain connected to the bar” and said, “Now, God-willingly, I will meet the lawyers in the bar room.”

In response to the compliments and greetings from the lawyers, the CJP recited a verse from a poem and expressed his gratitude to God for giving him the chance to serve as the chief justice.

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