SC delivers a stunning blow to politicians

ISLAMABAD:

SC delivers a stunning blow to politiciansStrikes down sections of NAB law amendments; directs courts to proceed in accordance with lawHASNAAT MALIKISLAMABAD: In a highly anticipated verdict, the Supreme Court in a majority decision has allowed ex-prime minister Imran Khan’s petition challenging amendments made to the National Accountability Ordinance (NAO) 1999 by the PDM-led government during its tenure, and ordered the restoration of corruption cases against public office holders that were withdrawn following the tweaks.

The apex court, with a majority of 2 to 1, has ordered the reopening of all corruption cases worth less than Rs500 million that were previously closed against political leaders from various parties and public office holders.

The court has declared the amendments null and void.

Furthermore, the SC has directed the National Accountability Bureau (NAB) to return all case records to the relevant courts within seven days.

Read CJP terms NAB law tweaks ‘dubious’

The verdict also highlights that the NAB amendments in question impacted the rights of the public as outlined in the constitution. The order, announced by Chief Justice of Pakistan Umar Atta Bandial in his final session before retirement, states, "By a majority of 2:1 (Justice Syed Mansoor Ali Shah dissenting), Constitution Petition No.21 of 2022 is allowed."
The court has also invalidated the judgments issued by the accountability courts based on the amended laws.

A written order, available to The Express Tribune, states, "All inquiries, investigations, and references that were disposed of based on the struck-down sections are reinstated to the positions they held before the enactment of the 2022 Amendments and shall be considered pending before the relevant fora."

Moreover, the court has directed the NAB and accountability courts to proceed with the reinstated 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.

The majority judgement is being considered a setback for major parties especially PML-N and PPP leadership whose cases will be revived.

A three-judge special bench led by CJP Bandial and comprising Justice Ijaz ul Ahsan and Justice Syed Mansoor Ali Shah conducted 53 hearings on Imran Khan's petition.

The ruling explained that the petition was maintainable on account of violating Articles 9 (security of person), 14 (inviolability of dignity of man), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution and for affecting the public at large because unlawful diversion of state resources from public development projects to private use leads to poverty, declining quality of life and injustice.

"Section 3 of the Second Amendment and Section 2 of the 2022 Amendments pertaining to Sections 5(o) and 4 of the NAB Ordinance are declared to be valid for references filed against persons in the Service of Pakistan for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance,” the verdict said.

Definition of ‘offence’

The majority judgement noted that Section 3 of the Second Amendment has changed the definition of ‘offence’ in Section 5(o) of the NAB Ordinance by inserting a minimum pecuniary jurisdiction of Rs500 million below which value the NAB cannot take cognizance of the offence of corruption and corrupt practices; causing loss to the tune of Rs100 million as mega scandals.

By enacting Section 3 of the second amendment, the ruling stated, “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 million parliament has effectively absolved them from any liability for their acts.”

This, it noted, was a function which under the constitution only the judiciary can perform (with the exception of the president who has been conferred the power to grant a pardon under Article 45 of the Constitution).

It said that by amending Section 5(o) of the NAB Ordinance to raise the minimum pecuniary threshold of the NAB to Rs500 million, Section 3 of the Second Amendment has undone the legislative efforts beginning in 1976 to bring elected holders of public office within the ambit of accountability laws because by virtue of Section 3 elected holders of public office have been granted both retrospective and prospective exemption from accountability laws.

Once excluded from the jurisdiction of the NAB no other accountability fora can take cognizance of their alleged acts of corruption and corrupt practices, it read.

The ruling said that 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, the ruling noted, in turn affects the economic well-being of the state and ultimately the quality and dignity of the people’s 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.

It elaborated that the immunity also negated Article 62(1)(f) of the Constitution which mandates that only ‘sagacious, righteous, non-profligate, honest and ameen’ persons enter parliament.

It also offends the equal treatment command of Article 25 of the Constitution as differential treatment is being meted out to persons in the service of Pakistan than to elected holders of public office. This is because persons in the service of Pakistan can still be prosecuted for the offence of corruption and corrupt practices under the 1947 Act as they fall within the definition of public servants.

"The 1947 Act shares some of the essential features of the NAB Ordinance, namely, it provides for the prosecution of public servants who have accumulated assets beyond means [refer Section 5(1)(e) of the 1947 Act] and it permits the drawing of an evidentiary presumption against public servants who cannot account for their disproportionate pecuniary resources or property [refer Section 5(3) of the 1947 Act]. Consequently, if Section 3 of the Second Amendment is allowed to remain on the statute book there will be an anomalous situation in that elected holders of public office will be exempted from accountability under the amended and much relaxed requirements of the NAB Ordinance."

The court noted that section 2 of the 2022 Amendments is 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 en masse 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 judgement held the phrase ‘through corrupt and dishonest means’ inserted in Section 9(a)(v) of the NAB Ordinance along with its explanation II is struck down from the date of commencement of the first amendment for references filed against elected holders of public office.

It also held that to this extent Section 8 of the first amendment is declared void.

"Section 9(a)(v) of the NAB Ordinance, as amended by Section 8 of the first amendment, shall be retained for references filed against persons in the service of Pakistan.

The court also held that section 14 and Section 21(g) of the NAB Ordinance are restored from the date of commencement of the first amendment. Consequently, Sections 10 and 14 of the first amendment are declared void; and the second proviso to Section 25(b) of the NAB Ordinance is declared to be invalid from the date of commencement of the second amendment.

Therefore, Section 14 of the second amendment is void to this extent.

The court noted that by the insertion of Explanation II to Section 9(a)(v) entries in bank statements have been removed from the scope of assets whereas banking transactions can only be regarded as assets if there is 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."

"On a first reading, the changes to Section 9(a)(v), the addition of explanation II and the omission of Section 14(c) might appear innocuous in nature but their effect both individually and collectively has actually rendered the offence of corruption and corrupt practices in the category of assets beyond means pointless.”

"If accused persons cannot be held to account for owning or possessing assets beyond their means, the natural corollary will be that public assets and wealth will 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 court noted that persons who are in the service of Pakistan can still be tried under the 1947 Act for the offence of corruption and corrupt practices even if they stand excluded from the jurisdiction of the NAB 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 9(a)(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 9(a)(v), persons in the service of Pakistan will still have to go through the rigors of trial under the 1947 Act for the same offence.

The SC said that this would offend the equal treatment command of Article 25 of the Constitution. In so far 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.

"More so, when presumptions comparable to those in Section 14(a) [presumption as to motive] and (d) [presumption as to guilt] for the categories of ‘illegal gratification,’ ‘obtaining a valuable thing without consideration,’ ‘fraudulent misappropriation,’ ‘obtaining property/valuable thing/pecuniary advantage through illegal means’ and ‘misuse of authority’ do not exist in any other accountability law, including the 1947 Act."

The court also noted that section 14 of the first amendment has omitted Section 21(g) of the NAB Ordinance.

"It is a common fact that many accused persons being tried under the NAB Ordinance have stashed their wealth and assets abroad in tax havens under fiduciary instruments. However, after the omission of the said provision the admissibility of foreign public documents shall be governed by Article 89(5) of the Qanunbe-Shahadat Order, 1984.”

"It may be observed that the process of admitting foreign public documents under the 1984 Order is protracted and cumbersome because it requires either the production of the original document or a copy which is certified not only by the legal keeper of the document but also by the Embassy of Pakistan. Further, the character of the document needs to be established in accordance with the law of the foreign country.”

Additionally, foreign private documents would need to be established through the procedure set out in Articles 17 and 79 of the 1984 Order which would require that two attesting witnesses from the foreign country enter personal appearance for proving the execution of the foreign private document.

“Such a process naturally entails time as the foreign evidence needs to pass through red tape. It therefore defeats the purpose for which Section 21(g) was inserted into the NAB Ordinance i.e., that after State cooperation led to the receipt of relevant foreign evidence the same would be directly admissible in legal proceedings initiated under the NAB Ordinance without fulfilling the onerous conditions of Article 89(5) of the 1984 Order.”

"By deleting Section 21(g) from the NAB Ordinance Section 14 of 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."

"Section 21(g) is hereby 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 peoples right to access justice and for protecting their public property from squander. Accordingly, Section 14 of the First Amendment is struck down for being illegal,” said the judgement.

The exclusion of the accountability court by the second proviso to Section 25(b) of the NAB Ordinance therefore undermines the independence of the judiciary and is violative of Article 175(3) of the Constitution.

Moreover, it is an admitted fact that under the proviso to Section 15(a) of the NAB Ordinance (disqualification to contest elections or to hold public office) an accused person who enters into a plea bargain suffers the same consequences as an accused person who is convicted of the offence of corruption and corrupt practices under Section 9(a).

The ruling stated that such consequences are that the accused person either forthwith ceases to hold public office, if any, held by him or further stands disqualified for a period of ten years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body etc. Therefore, allowing an accused person to renege from his plea bargain would be tantamount to conferring an unlawful benefit on him i.e., he would escape the consequences stipulated in Section 15(a) of the NAB Ordinance.