—— Says wait for ‘short and sweet’ verdict on NAB law
—— Supreme Court bench reserves verdict on PTI Chief’s petition
Staff Report
Islamabad: The Supreme Court on Tuesday finally reserved its verdict on PTI Chairman Imran Khan’s 2022 petition challenging amendments made to the accountability laws, bringing months of extensive proceedings — comprising more than 50 hearings — to an end.
A three-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah took up the plea today. In June 2022, the former premier had moved the apex court against amendments made to the National Accountability Bureau (NAB) ordinance under the National Accountability (Second Amendment) Act 2022.
The amendments made several changes to the National Accountability Ordinance (NAO) 1999, including reducing the term of the NAB chairman and prosecutor general to three years, limiting NAB’s jurisdiction to cases involving over Rs500 million, and transferring all pending inquiries, investigations, and trials to the relevant authorities.
In his petition, the PTI chief had claimed that the amendments to the NAB law had been made to benefit influential accused persons and legitimise corruption.
In recent hearings, Justice Shah has repeatedly urged for a full court to hear the case, citing the matter of the frozen Supreme Court (Practice and Procedure) law. However, CJP Bandial had opposed it, noting that his retirement was near and the matter had already been pending before the court for a considerable time — since at least July 19, 2022.
In the previous hearing, Justice Shah, while questio¬ning the bona fide of the petitioner, had said he sometimes felt tired of pushing too hard to find errors in the NAB amendments.
If someone believes that the amendment is tailored to benefit certain politicians and their family members, then the only available remedy is to throw them out in the elections and elect a new parliament to bring amendments for refining the NAB law, he had said. During the hearing today, Khawaja Haris appeared before the court as Imran’s counsel while senior lawyer Makhdoom Ali Khan was the federal government’s. Both counsels have completed their arguments in the case.
CJP Bandial noted that it was now on record that references against whom had been returned till May this year, adding that they were “with the NAB till today”.
He remarked that the lack of clarity in the law on crimes such as smuggling, illegal transfer of money, or state assets being used for corruption was “upsetting”.
Subsequently, the apex court reserved its verdict on the matter, with the CJP saying: “We will soon announce a short and sweet verdict of the case.”
The hearing
At the outset of the hearing, Haris contended before the court: “A lot of pending cases have been returned after the NAB amendments.”
At this, CJP Bandial inquired if there were any sections in the amendments under which cases could be referred to another relevant forum. “After these amendments, a lot of NAB’s work has come to an end,” he remarked.
The lawyer then replied that as per the amendments, an investigation would be conducted, after the review of which the cases could be sent to other forums.
He also informed the court that after the changes to the law, neither did the NAB have the authority to deal with the cases nor to send them to other relevant forums.
Here, Justice Shah noted that a law was not needed to forward cases to other forums, saying, “If there was a murder in the NAB’s office, the matter will [automatically] go to the relevant forum.”
“Will definitely ask about the matter of not getting the authority to send cases to other forums,” he added. Here, Imran’s counsel informed the court that written requests have been submitted to the court.
At this point during the hearing, the CJP asked Haris if he had read the NAB report submitted to the Supreme Court, referring to an updated report the NAB furnished last week detailing the return of corruption references since January 1.
“The NAB has detailed the reasons for references returned till May [this year]. The reasons for the return of references indicate where the law is leaning towards,” the top judge remarked.
Noting that it was now on record that references against whom had been returned till May this year, CJP Bandial recalled that one amendment to section 23 (transfer of property void) of the NAO was made in May while another in June this year.
“The references returned before May are with the NAB till today,” he stated, asking who would answer these questions on the NAB’s behalf. To this, Special Prosecutor Sattar Awan informed the court that the additional prosecutor general “will be reaching the court shortly”.
Here, while admitting that defending oneself was easier under the NAB amendments, Haris contended that his client was not taking advantage of them and recalled he had told the NAB the same.
“The statement submitted to the NAB is also part of the court record,” he added.
Chief Justice Bandial said the NAB report indicated that there were 36 pending references in Karachi and 21 in Lahore. The NAB prosecutor clarified that those references included details of ongoing cases unaffected by recent amendments.
CJP Bandial noted a case involving an individual named Tariq Awan that had been sub-judice for eight years. The prosecutor explained that those cases were related to illegal land allotment.
The chief justice inquired if the returned cases were still pending with NAB, to which the prosecutor replied in the affirmative.
“In 2022, we received 386 NAB references back,” the prosecutor informed the court.
The court instructed the Attorney General (AG) to provide a written report on this matter. However, the additional attorney general apologised to the court for the AG’s absence, citing that he was currently out of the country.
At this point during the hearing, Justice Ahsan observed, “After the amendments, the pending investigations and inquiries have gone to the mortuary. Till the mechanism for the transfer of inquiries is formed, the public’s rights will be directly affected.”
Imran’s counsel then stated that “elected representatives also have to undergo the test of Section 62(1)(f) (of the Constitution) and they use their powers as an Ameen”.
Here, Justice Shah noted that army officers had been excused from the NAB ordinance, to which Haris responded that the petition “had not challenged the amendments pertaining to army officers” as the Army Act 1952 already had provisions to deal with corruption cases against military officials.
“Punishments are also present against civil officers and public office holders,” Justice Shah responded, to which Haris said that under the civil servants’ law, only institutional action was to be taken and not a criminal complaint against corruption offences.
Justice Shah then asked, “Is a corrupt army officer not directly related to the public?”, noting that officers of institutions other than the military were dealt with according to the NAB ordinance.
“Judges of the honourable judiciary are not excused under the NAB ordinance. Under Article 209, the judge can only be dismissed [but] recovery [of the amount] is not possible,” he stated.
Haris then argued that if a judge was dismissed, the NAB should also take action against him.
To this, CJP Bandial responded, “Whether it is the use of state assets for corruption, smuggling or the illegal transfer of money — action should be taken. The lack of clarity in the law on these crimes is upsetting”.
“Making the public prosper and secure is the state’s responsibility,” he observed.
The court then reserved the verdict on the matter, with the CJP saying, “We will soon announce a short and sweet verdict of the case.”
The petition
In his petition, Imran had claimed that the amendments to the NAB law had been made to benefit the influential accused persons and legitimise corruption.
The coalition government led by the PML-N had introduced 27 key amendments to NAO, but President Dr Arif Alvi did not accord his assent to these. However, the bill was adopted in a joint sitting of parliament and notified later.
The petition pleaded that the fresh amendments tend to scrap corruption cases against the president, prime minister, chief ministers and ministers and provide an opportunity to the convicted public office-holders to get their convictions undone.
“The amendments to the NAO is tantamount to depriving the citizens of Pakistan of having access to law to effectively question their chosen representatives in case of breach of their duty towards the people of Pakistan,” the petition argued.
Moreover, the word “benamidar” has been re-defined, making it difficult for the prosecution to prove someone as a fictitious owner of a property, the petition argued.
NAB law amendment
The NAB (Second Amendment) Bill 2021 states that the NAB deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.
The bill has also reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years. After approval of the law, NAB will 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.
It says that “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 has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB 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”.
