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the Supreme Court (SC) on Friday ordered the restoration of corruption cases against public office holders that were withdrawn after amendments were made to Pakistan’s accountability laws last year.
The reserved verdict was announced by a three-member bench comprising the outgoing Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah on PTI Chairman Imran Khan’s petition challenging amendments made to the accountability laws.
The judgment came after 53 hearings were conducted on the ex-prime minister’s plea.
In the order, CJP Bandial and Justice Ahsan declared the petition 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 detailed court verdict, a copy of which is available with Dawn.com, said the bench was primarily concerned with the amendments made in 2022, adding they had “indeed brought about a significant change in the legal position under the National Accountability Bureau Ordinance”.
It said Imran had sought the nullification of almost all of the amendments made in 2022. “However, on a careful examination of these, we are not convinced that the fundamental rights of the people of Pakistan are violated by each and every section,” the order reads.
It said that judicial scrutiny of only Sections 2, 8, 10, and 14 of the National Accountability (Amendment) Act, 2022 (from here on referred to as First Amendment) and Sections 2, 3, and 14 of the National Accountability (Second Amendment) Act, 2022 (from here on referred to as Second Amendment) was required.
Here, Dawn.com will now take a look at how the court verdict impacts the aforementioned sections:
Section 2s of the First and Second Amendments
Section 2 of the First Amendment inserted sub-sections (a)-(f) into Section 4 of the NAB Ordinance and Section 2 of the Second Amendment added sub-section (g) in Section 4 of the NAB Ordinance, thus excluding certain holders of public office from the application of the NAB Ordinance and thereby limiting its effect.
Reasoning: The order said that from comparing the unamended and amended versions of Section 4 of the NAB Ordinance, “it becomes plain that exceptions have been created for the decisions, advice, reports, opinions of and works, functions, projects, schemes undertaken by holders of public office and public/governmental bodies unless there is evidence of the holder of public officer or a person acting on his behalf having received monetary or other material benefit. Such exceptions are novel not only to the NAB Ordinance but also other accountability laws such as the 1947 Act.”
Referring to the rationale provided for the changes, the order said the court appreciated the “efforts of Parliament to address and rectify what has long been regarded unguided discretion of the NAB authorities”.
It added that the two sections were clearly an attempt by Parliament to “rein in the unguided powers of the NAB and to protect the bureaucracy from unnecessary harassment”.
“However, the exceptions granted by Section 2 operate as an enmasse exemption for holders of public office from facing accountability. The freshly inserted condition that the NAB shall provide evidence of monetary or other material benefit received by the holder of public office or a person acting on his behalf to overcome the exceptions listed in Section 2 of the 2022 amendments cannot be satisfied in the references already pending before the accountability courts.
“Therefore, where such condition will not be met by the NAB the result will be (and in fact has been) that references will be returned,” the order reads.
It said the two sections of the First and Second Amendments thus affected fundamental rights — Articles 9, 14, 23 and 24 of the Constitution — and raised problems regarding the accountability of elected public office holders.
The order elaborated that under the two sections, persons in the service of Pakistan may still be investigated and prosecuted under the Prevention of Corruption Act, 1947 for the offences listed in Section 9a(i-v) of the NAB Ordinance but elected public office holders will not be amenable to the jurisdiction of any other accountability for the offence of corruption and corrupt practices.
Status: Declared void for elected public office holders from the date of commencement of the 2022 amendments, intra vires (valid) for people in the service of Pakistan pertaining to offences in Section 9a(i-v) of the NAB Ordinance and ultra vires (invalid) for people in the service of Pakistan pertaining to offences in Section 9a(vi-xii) of the NAB Ordinance
Sections 8 and 10 of the First Amendment
Section 8 inserted new ingredients in the offence under Section 9(a)(v) of the NAB Ordinance and added explanations thereto. Section 9(a)(v) criminalises the act of holding assets beyond means.
Section 10 deleted Section 14 of the NAB Ordinance which provides evidentiary presumptions that may be drawn against the accused.
Reasoning: The order said Section 8 “significantly altered” Section 9 of the NAB Ordinance which lays down various categories of the offence of corruption and corrupt practices.
The order said that apart from reducing the circumstances in which the offence of assets beyond means could be made out against the holder of a public office, the First Amendment section had made another material change in Section 9a(v) of the NAB Ordinance through the obligation on NAB to prove that an accused had accumulated substantially disproportionate assets through corrupt and dishonest means.
It added that this element was previously not a part of Section 9a(v). “This is evident from the ingredients of Section 9a(v) which were well-established in the jurisprudence of the court” and required NAB to prove the accused was a holder of public office; the nature and extent of the pecuniary resources of the property found in the accused’s possession; the known sources of income of the accused and the resources or property found in the possession of the accused were objectively disproportionate to their known sources of income.
“Once the NAB had established the above-mentioned four elements, the accused was presumed to be guilty of the offence of corruption and corrupt practices unless he could account for the resources or property so recovered from him.
“The NAB was not required to demonstrate that the accused had obtained the resources or property ‘through corrupt and dishonest means’ because the mere presence of disproportionate assets led to the presumption that the accused had engaged in corrupt and dishonest conduct.
“Such a presumption is provided in Section 14(c) of the NAB Ordinance. The fact of the matter is that the proof of acquisition of assets ‘through corrupt and dishonest means’ itself constitutes a complete offence.
“Therefore, by changing Section 9a(v) the First Amendment has amalgamated two separate offences into one. As a result, the original offence contained in Section 9a(v) has now been rendered redundant. To further ensure the futility of the said offence all of the evidentiary presumptions contained in Section 14 of the NAB Ordinance sustaining the erstwhile offence under Section 9a(v) and the remaining offences in the NAB Ordinance have been omitted by Section 10 of the First Amendment. The presumption relevant to Section 9a(v) of the Ordinance existed in Section 14(c),” the order reads.
It further said that the insertion of the second explanation to Section 9a(v) removed entries in bank statements from the scope of assets whereas banking transactions could only be regarded as assets if there was evidence of the creation of a corresponding asset through specific transactions.
“The source, object and quantum of credits/receipts in the bank accounts can now no longer be shown for proving the creation of assets. Nor can debit transfers from one account to another be used to show accumulation of money for the creation of an asset. It goes without saying that bank records are usually the most pivotal evidence in financial crimes. However, by virtue of Explanation II, limited resort can be made to them,” the order explained.
The court verdict noted that while the changes from Sections 8 and 10 of the First Amendment might appear innocuous in nature, their effect both individually and collectively had “actually rendered the offence of corruption and corrupt practices in the category of assets beyond means pointless”.
It further said that if accused persons could not be held to account for owning or possessing assets beyond their means, the natural corollary would be that public assets and wealth would become irrecoverable which would encourage “further corruption”.
“This will have a direct adverse effect on the peoples’ right to life and to public property because the economic well-being of the state will be prejudiced,” the order said.
Meanwhile, the court order points out that no similar or corresponding changes were made to other accountability laws.
The verdict reiterated that people in the service of Pakistan could be tried under the Prevention of Corruption Act, 1947 for the offence of corruption and corrupt practices even if they stood excluded from NAB’s jurisdiction pursuant to the amendments made in Section 4 of the NAB Ordinance.
“However, the same cannot be said of elected holders of public office because they only fall within the purview of the NAB Ordinance. The amended Section 9a(v) and the omission of Section 14(c) would treat similarly placed persons differently because while elected holders of public office are relieved from prosecution for the offence under Section 9a(v), persons in the service of Pakistan will still have to go through the rigours of trial under the 1947 Act for the same offence.
“This would offend the equal treatment command of Article 25 of the Constitution. Insofar as the other presumptions contained in Section 14 of the NAB Ordinance for the other categories listed in Section 9(a) ibid are concerned, the same too stand revived as their omission will prevent the recovery of public assets and wealth from the holders of public office thereby defeating the peoples’ fundamental rights of accessing justice and protecting their public property.
Status: Sections 8 and 10 for elected public office holders declared invalid to the extent that the phrase ‘through corrupt and dishonest means’ used in Section 9a(v), along with its Explanation II, struck down from the NAB Ordinance from the date of commencement of the First Amendment for being unworkable.
Section 14 restored in its entirety to the NAB Ordinance for public office holders from the date of commencement of the First Amendment.
Amendments in Section 8 to NAB Ordinance Section 9a(v) upheld in their entirety for people in service of Pakistan since they can be tried for the same offence under the Prevention of Corruption Act, 1947.
Section 10 of the First Amendment struck down from the date of commencement of the First Amendment and Section 14(a), (b) and (d) stand restored to the NAB Ordinance for people in service of Pakistan because such presumptions do not exist in any other accountability law.
Section 14 of the First Amendment
Section 14 deleted Section 21(g) of the NAB Ordinance which permitted foreign evidence to be admissible in legal proceedings under the mutual legal assistance regime.
Reasoning: The order said that it was a “common fact” that many people being tried under the NAB Ordinance had stashed their wealth and assets abroad in tax havens under fiduciary instruments.
It added that after the omission of Section 21(g), the admissibility of foreign public documents would be governed by Article 89(5) of the Qanun-e-Shahadat Order, 1984.
The verdict pointed out that the process of admitting foreign public documents under the above order was “protracted and cumbersome”.
Explaining the proceedings under the aforementioned order, the verdict said such a process naturally entails time as the foreign evidence needs to pass through red tape and thus defeats the purpose for which Section 21(g) was inserted into the NAB Ordinance.
That purpose was that after state cooperation led to the receipt of relevant foreign evidence, it would be directly admissible in legal proceedings initiated under the NAB Ordinance without fulfilling the “onerous conditions” of Article 89(5) of the Qanun-e-Shahadat Order, 1984.
“By deleting Section 21(g) from Section 14 of the NAB Ordinance, the First Amendment has made it near impossible for relevant and necessary foreign evidence to be used in the trials of accused persons. It therefore offends the fundamental rights of the people to access justice and protect public property from waste and malfeasance,” the verdict explains.
Status: Section 14 struck down for being illegal and Section 21(g) restored in the NAB Ordinance for both elected holders of public office and persons in the service of Pakistan with effect from the date of commencement of the First Amendment for facilitating the right to access justice and for protecting their public property from squander.
Section 3 of the Second Amendment
Section 3 changed the definition of ‘offence’ in Section 5o of the NAB Ordinance by inserting a minimum pecuniary jurisdiction of Rs500 million below which value the NAB cannot take cognisance of the offence of corruption and corrupt practices.
Reasoning: The court verdict noted that as a result of the above change, offences that caused a loss valued at less than Rs500m no longer came within NAB’s ambit.
It said the apparent rationale provided for enhancing the pecuniary jurisdiction was so NAB could be limited to “take only action against mega scandals”.
The court order said the government’s counsel relied on prior verdicts, adding that it was clear from the court pronouncements quoted that NAB’s principal focus was to mainly prosecute mega scandals.
“But whilst the judgments of the superior courts indicate that the minimum pecuniary threshold of NAB should be Rs100m (except in limited circumstances where offences less than Rs100m cannot be prosecuted by any other accountability agency), Section 3 of the Second Amendment has increased this minimum threshold to Rs500m.
“No cogent argument was put forward by learned counsel for the respondent federation as to why Parliament has fixed a higher amount of Rs500m for the NAB to entertain complaints and file corresponding references in the accountability courts when the superior courts have termed acts of corruption and corrupt practices causing loss to the tune of Rs100m as mega scandals,” the court verdict notes.
The order said it was accepted that Parliament was empowered to legislate freely within its legislative competence, however, it was also a settled principle of Pakistan’s constitutional dispensation that the three state organs performed distinct functions and one could not encroach into another’s jurisdiction.
“By enacting Section 3 of the Second Amendment we are afraid that Parliament has in fact assumed the powers of the judiciary because by excluding from the ambit of the NAB Ordinance the holders of public office who have allegedly committed the offence of corruption and corrupt practices involving an amount of less than Rs500, Parliament has effectively absolved them from any liability for their acts,” the order said.
It added that this was a function which under the Constitution only the judiciary could perform with the exception of a presidential pardon.
The order said that the government’s counsel had argued that the increase in the pecuniary threshold did not mean public officeholders were absolved and there were other accountability forums as well.
The order said the counsel had referred to the provisions of the Prevention of Corruption Act, 1947; Pakistan Penal Code (PPC), 1860; Income Tax Ordinance, 2001; and Anti-Money Laundering Act, 2010.
However, the verdict said a careful examination of the first two showed they were applicable only to public servants and not to elected public officeholders for a number of reasons the order expounded upon.
Thus, it said that in contrast to what the government counsel had said, elected holders of public office were not triable under the 1947 Act or the PPC for the offence of corruption and corrupt practices.
The court order said Section 3 of the Second Amendment had “undone the legislative efforts beginning in 1976 to bring elected holders of public office within the ambit of accountability laws” because elected public office holders were granted retrospective and prospective exemption from accountability laws.
“Once excluded from the jurisdiction of the NAB no other accountability fora can take cognisance of their alleged acts of corruption and corrupt practices as noted above.
“Such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution because it permits and encourages the squandering of public assets and wealth by elected holders of public office as there is no forum for their accountability.
“This in turn affects the economic well-being of the state and ultimately the quality and dignity of the peoples lives because as more resources are diverted towards illegal activities less resources remain for the provision of essential services to the people such as health facilities, education institutes and basic infrastructure etc,” the court verdict reads.
It added that the immunity granted also negated Article 62(1)(f) of the Constitution and offended the equal treatment command of Article 25 as differential treatment was being meted out to persons in the service of Pakistan compared to elected holders of public office.
Thus, there would be an “anomalous situation” if Section 3 was allowed to remain on the statute book, the order pointed out.
Status: Termed unconstitutional, declared to be ultra vires the Constitution and of no legal effect for elected public office holders.
Declared intra vires and Rs500m bar to continue for people in service of Pakistan regarding offences contained in Section 9a(i-v) of the NAB Ordinance since they can be tried under Prevention of Corruption Act, 1947.
Declared void and without legal effect from the date of commencement of the Second Amendment for people in service of Pakistan regarding offences noted in Section 9a(vi)-(xii) of the NAB Ordinance, since they cannot be tried under Prevention of Corruption Act, 1947 or any other accountability law, for discharging the accused without trial which is tantamount to legislative judgment thus Rs500m bar will not apply.
Section 14 of the Second Amendment
Section 14 added a second provision to Section 25(b) of the NAB Ordinance whereby an accused who enters into a plea bargain duly approved by the accountability court under Section 25(b) can renege from the same if they have not paid the full amount of the bargain settlement as approved by the accountability court.
Reasoning: The court order noted that this provision appeared to protect the interests of the state by ensuring prompt recovery of looted public money.
However, it said that despite the “benign purposes” behind introducing the provision, its actual effect was that it nullified Section 25(b), which was inserted to facilitate the early recovery of ill-gotten wealth through a settlement where practical, because it placed no restrictions on the accused from revoking the plea bargain entered by them.
“The second proviso gives the accused an uninhibited right to withdraw from a plea bargain without obtaining the approval of the accountability court which in the first place approved the plea bargain,” the verdict pointed out.
It added that the accountability court’s exclusion from the process undermined the judiciary’s independence and violated Article 25 of the Constitution.
It further said that allowing an accused person to renege from their plea bargain would be tantamount to conferring an unlawful benefit on them since they would “escape the consequences stipulated in Section 15(a) of the NAB Ordinance”.
Status: Declared void and of no legal effect, second provision to Section 25(b) struck down from NAB Ordinance from the date of commencement of the Second Amendment for exceeding its purpose by nullifying Section 25(b), for violating the independence of the Judiciary and for enabling accused persons to avoid the consequences of Section 15(a).