ISLAMABAD: The federal government has finally moved the much-anticipated intra-court appeal (ICA) against the Supreme Court’s majority judgement, declaring amendments to the anti-graft law illegal.

Moved through senior counsel Makh­doom Ali Khan, the government also sought 15 days to file additional documents with a plea that the majority decision was against the facts of the case and contrary to the law.

On Sept 15, the Supreme Court by a majority of two to one ruled that the public representatives who benefited from the amendments made by the PDM government in the National Accountability Ordinance (NAO) will have to face corruption references again.

Through the ICA, the federal government argued that PTI Chairman Imran Khan, who had challenged the amendments, was given opportunities during the hearing not only to make verbal submissions for 27 hearings but also to make submissions in rebuttal, whereas the federation was restricted only to answering queries from the bench.

Request for grant of time for written submissions was not entertained, appeal states

Similarly, the ICA said the respondent (Mr Khan) was allowed three months’ time to file his written submissions, but the federation’s request for grant of the same time or at least three weeks was not entertained.

Having left with no other option, the written submissions were hurriedly prepared and filed by the federation on Sept 12, as yet another government’s request seeking postponement of the case or constitution of a full court bench for hearing the petition in view of the SC (Practice and Procedure) Act, 2023 was also not decided.

Thus, the majority judgement is contrary to the principles of natural justice and due process of law and against the dicta law laid down by SC larger bench in 1990 Amanullah Khan case.

The ICA emphasised that a number of references were returned or transferred to other fora under the amendment act and as per the information provided by NAB, no acquittals were ordered under the amendment act.

On the contrary, a number of acquittals were ordered pursuant to the amendment ordinances promulgated during the PTI government and in some cases NAB had gone in appeal and in others the accused had.

Majority of the appeals and petitions are pending before high court but none of the accused, whose references were returned or transferred pending to other fora or appeals, were parties before the SC and the facts of their cases were not before the top court.

The appellant regretted that the entire premise of the majority judgement was flawed as it assumed that the cases if transferred to other fora would not proceed against elected holders of public office.

It also ignored that a proper mechanism and procedure for transfer of inquiries, investigations, trials and proceedings was prescribed by sub-section 4 of Section 4 of the Third Amendment Act.

As per the majority decision, cases transferred from NAB or accountability courts can only be tried under the Prevention Corruption Act (PCA), 1947 and Pakistan Penal Code (PPC), 1860.

It further held that elected public office holders could not be tried under the PCA or PPC that according to the judgement apply only to persons in service of Pakistan, the ICA contended.

“This finding is incorrect,” the ICA argued, adding that if an elected public office holder was accused of a fiscal crime he could be tried under the fiscal statutes, like the Income Tax Ordinance, 2001.

Similarly, it added, if that person is accused of money laundering, he can be prosecuted under the Money Laundering Act, 2010. If the allegation against an elected public office holder was of holding property in favour of benamidars, they could be tried by a sessions court under the Benami Transaction (Prohibition) Act, 2017, the ICA emphasised.

Published in Dawn, October 18th, 2023