CJP’s parting shot opens new can of worms

Published September 16, 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 2-1 verdict, SC orders restoration of corruption cases on Imran’s plea challenging changes to accountability law
• Directs NAB, others to return records of cases against public office holders to relevant forums within seven days
• Zardari, Nawaz, Shehbaz, Fazl, Sanaullah may face cases again; those in ‘service of Pakistan’ spared
• Justice Shah authors dissenting note, argues parliament has authority to make, repeal and amend laws

ISLAMABAD: The Supreme Court ordered on Friday to restore corruption cases against public representatives as it struck down some sections of the amendments made to the country’s accountability laws last year by the previous coalition government.

The reserved verdict was announced by a three-member bench comprising outgoing 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 the amendments to the National Accountability Ordinance (NAO).

It was a 2-1 verdict, with Justice Bandial and Justice Ahsan declaring Mr Khan’s plea to be maintainable and Justice Shah issuing a dissenting note, arguing that if parliament could enact the NAB law, it could also repeal or amend it.

The 55-page detailed judgement restored all inquiries, investigations and references that were disposed of based on the now struck-down sections of NAO to their positions before the amendments, and thus deemed to be pending before relevant forums.

The judgement was announced in Courtroom No. 1 by outgoing CJP Bandial, a day before his retirement.

Earlier this month, he said that the court would soon announce a “short and sweet” verdict of the case.

In the judgement, the Supreme Court also ordered NAB and all accountability courts to go ahead with the restored proceedings according to 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 judgement said.

It held Imran Khan’s petition maintainable on account of violating Article 9 (security of person), Article 14 (inviolability of dignity of man), Article 24 (protection of property rights) and Article 25 (equality of citizens) of the Constitution and for affecting the public at large because the unlawful diversion of state resources from public development projects to private use leads to poverty, declining quality of life and injustice.

Zardari, Nawaz may face cases again

Prominent politicians who allegedly benefited from the amendments and now may face cases again include former president Asif Ali Zardari, former prime ministers Nawaz Sharif and Shehbaz Sharif, Maulana Fazlur Rehman, Faryal Talpur, Khawaja Asif, Khawaja Saad Rafique, Rana Sanaullah, Javed Latif, Makhdoom Khusro Bakhtiar, Amir Mehmood Kayani, Akram Durrani, and Saleem Mandviwalla.

Friday’s judgement explained that Section 3 of the Second Amendment pertaining to Section 5(o) of NAO sets the minimum pecuniary threshold of NAB at Rs500 million and Section 2 of the 2022 amendments pertaining to Section 4, which limits the application of the ordinance by creating exceptions for public office-holders, are declared void ab initio.

Likewise, Section 3 of the Second Amendment and Section 2 of the 2022 amendments pertaining to Section 5(o) and Section 4 of the NAO were declared to be valid.

Under this provision, the persons in the service of Pakistan have been omitted from the NAO since these persons can still be tried under the Prevention of Corruption Act 1947 for the offence of corruption and corrupt practices even if they stand excluded from the jurisdiction of NAB.

The phrase “through corrupt and dishonest means” inserted in Section 9(a)(v) of the NAB ordinance along with its Explanation II was also struck down from the date of commencement of the First Amendment for references filed against elected holders of public office. Similarly, Section 14 was also omitted, which allowed the accountability court to draw different evidentiary presumptions against the accused.

Likewise, Section 21(g) of the NAB ordinance was restored from the date of commencement of the First Amendment. The amendment has omitted this provision, which allowed evidentiary material transferred by a foreign government through Mutual Legal Assistance (MLA) as evidence. Consequently, Sections 10 and 14 of the First Amendment are declared void.

Therefore, “all orders passed by the NAB and/or the Accountability Courts placing reliance on the above Sections are declared null and void and of no legal effect”, the judgement said.

Justice Shah’s dissenting note

In his dissenting note, Justice Syed Mansoor Ali Shah said he did not agree with the majority judgement, which he received on Thursday night.

He said the primary question in this case was not about the alleged lopsided amendments introduced in the NAB law by parliament, but about the supremacy of parliament.

He said the majority judgement “has fallen short to recognise the principle of trichotomy of powers, which is the foundation of parliamentary democracy”.

The majority has also “fallen prey to the unconstitutional objective of a parliamentarian, of transferring a political debate on the purpose and policy of an enactment from the Houses of the Parliament to the courthouse of the Supreme Court”, Justice Shah said.

He said the majority judgement had also fallen short to appreciate that parliament can undo what it has done because its legislative power was never exhausted. “If Parliament can enact the NAB law, it can also repeal the entire law or amend the same,” he said. Justice Shah said he would give his detailed opinion later.

Published in Dawn, September 16th, 2023

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