SC overturns its order on NAB amendments

• CJP says court should strive to uphold legislation unless clearly unconstitutional
• Justice Minallah in dissenting note says govt’s appeal should have been dismissed
• Gohar hopes for legal relief for Imran after verdict
ISLAMABAD: The Supreme Court on Friday overturned its earlier, divided ruling that public representatives who benefited from amendments to the National Accountability Ordinance (NAO) under the Pakistan Democratic Movement (PDM) coalition government must face renewed corruption charges.
A five-member bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, reviewed the federal government’s intra-court appeal (ICA) against the Sept 15, 2023, majority judgement, which had declared amendments to the NAO illegal.
Justice Athar Minallah, though agreeing with the conclusion to set aside the earlier judgement, dissented in reasoning, stating that the federal government’s appeal should have been dismissed for not being competent under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023.
The original Sept 15 judgement had come on the challenge moved by former prime minister Imran Khan to the 2022 amendments to the NAO. However, Justice Syed Mansoor Ali Shah, then a member of the three-judge bench, had dissented and observed that if parliament can enact the accountability law, it can also repeal the entire law or amend it.
Through the earlier judgement, the Supreme Court had restored all inquiries, investigations and references disposed of on the basis of amendments to the NAO to their positions before the enactment of the 2022 amendments and thus deemed to be pending before relevant forums. The apex court had also ordered the National Accountability Bureau (NAB) and all accountability courts to proceed with the restored proceedings according to the law.
In the latest 16-page verdict, CJP Isa stressed that the Supreme Court should strive to uphold legislation rather than rush to strike it down unless it is clearly unconstitutional.
“The Chief Justice and judges of the Supreme Court are not the gatekeepers of Parliament,” CJP Isa observed.
He further noted that where multiple interpretations of legislation are possible, the interpretation that supports the law should be favoured.
The judgement clarified that while unconstitutional laws should be struck down, the Sept 15 ruling failed to demonstrate that the amendments had violated the Constitution. The Constitution clearly defines the roles of the judiciary and legislature, and both must respect their domains, the CJP remarked.
The court found that the earlier judgement did not adequately explain how the amendments violated or infringed on fundamental rights. The impugned (Sept 15) judgement 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. A reference was also made to Article 14 (inviolability of dignity of man), but there was no explanation of how any of the amendments had affected anyone’s dignity, as the verdict explained.
Similarly, Article 25 (equality of citizens) was mentioned, but once again, no explanation was offered, nor was it elaborated on 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 Article 24 (protection of property), but neither of these articles was expounded or elucidated with regard to the amendments, let alone that the amendments, or any part thereof, offended either of them.
“Merely because this Court considers that it could have drafted or formulated a law better than Parliament does not empower it to strike down or disregard legislation enacted by Parliament,” the CJP emphasised.
CJP Isa also reflected on the origin of the NAO, enacted 34 days after Pervez Musharraf’s military coup in 1999. “He (Mr Musharraf) 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 takeover,” CJP Isa pointed out.
He said the ordinance, initially designed to combat corruption, was perceived as a tool for political victimisation, with politicians loyal to Mr Musharraf receiving favourable treatment. The chief justice lamented that many had aligned with Gen Musharraf’s dictatorship, benefiting from its trappings while undermining the Constitution.
Meanwhile, Justice Minallah concurred with the minority opinion from Justice Mansoor Ali Shah’s earlier dissent, affirming that members of the armed forces and judges of constitutional courts should not be immune from accountability under the NAO. Justice Minallah stated that he would provide detailed reasons at a later date.
Gohar sees relief for Imran
PTI Chairman Barrister Gohar Khan expressed optimism regarding legal relief for party founder Imran Khan, hoping that key cases against him would no longer fall under the NAB’s jurisdiction.
Speaking to Geo News after the verdict, Mr Gohar highlighted that both the Toshakhana case — valued at Rs30-40 million — and the Al-Qadir Trust case were now outside the scope of NAB’s jurisdiction.
He emphasised that the £190 million corruption case against Imran Khan should also be decided on merit. Mr Gohar said the case could not move forward either, as it involved no personal interest.
Published in Dawn, September 7th, 2024