Islamabad (Web Desk): The Supreme Court (SC) on Friday reinstated the changes in the country's anti-corruption laws after accepting the federal government’s appeal against the September 15, 2023 majority judgement, which struck down the amendments to the National Accountability Ordinance (NAO).
The federal and provincial governments had submitted intra-court appeals after the NAB amendments were earlier declared unconstitutional. The SC had reserved its ruling on the federal government’s appeal on June 6.
A larger bench headed by Chief Justice of Pakistan (CJP) Qazi Faiz Isa and comprising Justice Aminuddin, Justice Jamal Khan Mandukhel, Justice Athar Minallah and Justice Hasan Azhar Rizvi announced the unanimous verdict.
In a 16-pages written order, the court said: “The Ordinance was enacted thirty-four days after Army Chief General Pervez Musharraf forcibly assumed power after he was sacked. He overthrew the constitutional-democratic order, and bestowed on himself legislative and executive powers, and removed the judges of the superior courts who did not endorse his take-over.”
The court said that three amendments had been made in the Ordinance which include NAB (Amendment) Act, 2022, NAB (2nd Amendment) Act, 2022, and 3rd NAB (Amendment) Act, 2023. The 3rd Amendment was in the field when the Petition was heard (six hearings took place after its promulgation) yet the impugned judgment did not attend to it and created an anomalous situation.
The judgment said: “We allow these appeals by setting aside the impugned judgment, and dismiss the Petition. However, there is no order as to costs.”
The order read: “The Constitution has set out the respective roles of the Legislature and that of the Judiciary and every care should be taken to ensure that neither encroaches onto the domain of the other. Constitutional institutions better serve the people when they respect each other and perform the functions respectively granted to them by the Constitution. The Chief Justice and the Judges of the Supreme Court are not the gatekeepers of Parliament.”
It said, “The Supreme Court whenever possible must try to uphold legislation rather than rush to strike it down, and if there be two or more interpretations of any legislation to adopt the interpretation which upholds it. The petition and the impugned judgment failed to establish that the Amendments were unconstitutional, nor have we been so persuaded in this regard.”
The judgment said: “The impugned judgment did not demonstrate how the Amendments violated or infringed any of the Fundamental Rights which were cursorily mentioned therein. The impugned judgment had referred to Article 9 (security of person) but did not even briefly explain how anyone’s security was undermined or affected by the Amendments. Reference was also made to Article 14 (inviolability of dignity of man) but there was no explanation forthcoming on how any of the Amendments had affected anyone’s dignity. The next reference in the impugned judgment was to Article 25 (equality of citizens) but once again no explanation was offered nor was it elaborated how citizens were being subjected to different laws or were being treated differently. Passing reference was also made to Article 23 (provision as to property) and to Article 24 (protection of property) but neither of these Articles were expounded or elucidated with regard to the Amendments, let alone that the Amendments, or any part thereof, offended either of them. Without stating, demonstrating and then establishing that the Amendments, or any of its provisions did not conform to the said Fundamental Rights, the same could not be struck down.”
It added, “The impugned judgment did not test the Amendments on the touchstone of the Constitution, it instead proceeded to consider the Amendments by applying their lordships’ own criteria and yardstick, which, with respect, was not permissible in terms of the Constitution. Needless to state, Judges must abide, as their oath of office prescribes by the constitution.”
The verdict said: “These appeals could justifiably be allowed on the ground that since the Petition was not heard and decided as required by the Act by a five-member Bench the impugned judgment is coram non judice and a nullity in law.”
It stated: “Syed Mansoor Ali Shah, J, was correct in stating that Intra Court Appeal No. 2/2023 etc. 11 after the promulgation of the Act the Petition could not be heard by a three member Bench. Had Syed Mansoor Ali Shah, disassociated himself from the Bench the Petition could then not have been heard by the remaining two Judges, nor could it have been decided by them.”
The decision said that the 3rd Amendment was pertained to trials and proceedings before other Courts. “We had already appointed on 14 May 2024 learned Khawaja Haris Ahmed to represent Mr. Niazi and had directed the State to pay his professional fee, however, the learned Senior Advocate graciously without claiming any amount from the State agreed to represent Mr. Niazi,” it added.
Justice Athar Minallah in his note stated: “I have carefully read the opinion eloquently authored by the Chief Justice and I concur that the impugned majority judgment is liable to be set aside. With profound respect, in my opinion the appeal filed by the Federation was not competent under section 5 of the Supreme Court (Practice and Procedure) Act, 2023 and the same is hereby dismissed. However, the appeals preferred by the private appellants were maintainable and the same are allowed. Consequently, the impugned judgment is set aside.
Moreover, the opinion recorded in the minority judgment is affirmed to the effect that members of the Armed Forces and Judges of the constitutional courts are not immune from accountability under the National Accountability Ordinance, 1999. The detailed reasons shall be recorded later.”
It is pertinent to mention that the apex court had previously struck down the NAB amendments in response to a plea filed by the Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan.
In September 2023, then-CJP Umar Ata Bandial and Justice Ijazul Ahsan had accepted PTI founder’s 2022 petition while Justice Syed Mansoor Ali Shah dissented from the 2-1 verdict.
Imran’s plea had challenged the changes introduced by the coalition government at the time, led by the Pakistan Muslim League-Nawaz (PML-N).
The NAB (Second Amendment) Bill 2021 reduced the four-year term of the NAB chairman and the bureau's prosecutor general to three years.
After approval of the law, NAB was not be able to act on federal, provincial or local tax matters.
Moreover, the regulatory bodies functioning in the country have also been placed out of NAB's domain.
As per the bill "all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions, shall stand transferred to the concerned authorities, departments and courts under the respective laws."
It set a three-year term for the judges of the accountability courts. It also made it binding upon the courts to decide a case within one year. Under the proposed law, it had been made binding upon anti-graft body to ensure the availability of evidence against an accused prior to his or her arrest.
According to one of the key amendments, the act "shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999."