Former chief justice Umar Ata Bandial’s last act as CJ – his parting shot, if you may – was a 2-1 verdict by the Supreme Court last Friday, approving PTI chief Imran Khan’s plea challenging amendments made to the National Accountability Bureau’s (NAB) laws passed during the PDM-led government. With the verdict, the court has ordered the restoration of corruption cases against public office-holders that were withdrawn after the NAB amendments last year. The three-member bench – headed by the former chief justice and comprising Justice Mansoor Ali Shah and Justice Ijazul Ahsan – had held more than 50 hearings on the case. The 2-1 verdict included a dissenting note by Justice Mansoor Ali Shah. The verdict was hailed by lawyers for the PTI chief but few other legal experts have found much worth celebrating in it, for varying reasons. By most legal analysis, the SC’s majority verdict has been seen as the court trying to expand its jurisdiction into parliamentary matters. Others have questioned how restoring NAB to its earlier iteration – which was criticized for being a tool for political witch-hunts – can possibly lead to accountability. In very layperson terms, the majority verdict has argued that watering down NAB’s powers was somehow tantamount to violating the fundamental rights of the people since it makes corruption easier.
At the root of the matter is the National Accountability Bureau and what it has meant for both accountability and politics the past many years. As the main government agency responsible for investigating and prosecuting allegations of corruption, NAB needed to be purer than the driven snow since any hint of impropriety would call into question its credibility. The person heading it too needed to be as above controversy as possible. Unfortunately, on both counts NAB not only failed but failed spectacularly. During the PTI regime, we saw arbitrary arrests, half-baked cases – at the behest of a body that seemed to wield far too much power. NAB’s inglorious past resulted in a consistent demand by the then opposition parties that the law needed to be amended or scrapped. This is how the PDM coalition government ended up making changes to the NAB law twice already after taking over.
While some of the changes to the NAB law were needed interventions, it was hard even last year to ignore the way the amendments had been enacted. It had been argued back then that, while FIA, the SBP and other bodies are there to keep a check on some forms of financial corruption, perhaps what was really needed was not a toothless accountability mechanism but one that could not be swayed by political considerations, or vindictive justice or petty witch-hunts. That all may be so, and a new parliament – after a fair and free election – could have easily figured out how to manage the NAB laws, but the SC verdict is rightly seen by Justice Shah’s dissenting opinion as ignoring the supremacy of parliament. How can arbitrary definitions of fundamental rights by the apex court help the cause of accountability when it in fact ends up assuming authority that belongs to elected representatives of the people? Since legal experts have said that perhaps a review petition could end up making the Justice Shah opinion more viable, there may be hope yet for the verdict’s majority opinion to become a minority opinion. Accountability should be part of any governance structure but accountability, like justice, has to rise above political considerations and partisanship. The SC’s majority opinion should be cause for concern for all who wish to see justice that adheres strongly in the principle of separation of powers.