SC restores NAB law tweaks made by PDM govt

ISLAMABAD: The coalition government on Friday had the last laugh, as the Supreme Court restored the amendments made to the National Accountability Ordinance (NAO) 1999, setting aside the earlier judgment that declared some of the amendments as unconstitutional.

A five-member bench of the apex court, headed by Chief Justice of Pakistan Justice Qazi Faez Isa, announced the reserved judgment on Intra-Court Appeals (ICAs) of the federal government and others.

Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Athar Minallah and Justice Syed Hasan Azhar Rizvi were the bench members.

The court on June 6 reserved the verdict on the ICAs and granted a week for submission of further written arguments from the parties concerned.

The court by a majority judgment 5-0 while accepting the Intra-Court Appeals (ICAs) of the federal government as well as other petitioners, including Zuhair Ahmed Siddiqui and Muhammad Zahid Imran and another, set aside the earlier judgment delivered on September 15, 2023.

The court remarked that the Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan could not prove that the NAB amendments were unconstitutional.

In his additional note, Justice Athar Minallah agreed with the majority judgment setting aside the earlier judgment but held that the government’s appeal was not acceptable.

“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,” Justice Athar Minallah held.

The judge, however, opined that the appeal filed by the federation was not competent under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 and the same was hereby dismissed; however, the appeals preferred by the private appellants were maintainable and the same were allowed.

Consequently, the impugned judgment is set aside,” Justice Minallah noted adding that the opinion recorded in the minority judgment was affirmed to the effect that the members of the armed forces and judges of the constitutional courts were not immune from accountability under the National Accountability Ordinance, 1999.

The judge held that the detailed reasons shall be recorded later.

On Friday, the 15-page judgment, authored by the Chief Justice Qazi Faez Isa, held that the impugned judgment did not demonstrate how the amendments violated or infringed upon any of the fundamental rights which were cursorily mentioned therein.

The court noted that 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.

A 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 while 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,” says the judgment.

The court held that 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.

Similarly, the majority judgment held that 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, the judges must abide, as their oath of office prescribes, by the Constitution of the Islamic Republic of Pakistan and the law,” the court held adding that unless the law was clearly found to offend the Constitution, and it was first so declared, it could not be disregarded or struck down.

The court held that the petition should not have been allowed as it merited dismissal.

“Having arrived at this conclusion we need not consider the remaining submissions of the appellant’s counsel and those who supported them, including that some of the amendments gave effect to the decisions of the superior Court, that Mr. Niazi himself was the architect of many of the provisions which were later incorporated into the amendments and that Mr. Niazi did not act bona fide,” says the judgment.

The majority judgment held that the Supreme Court whenever possible must try to uphold the 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.

“This does not mean that when the law, or any provision thereof, is unconstitutional it should not be so declared and struck down,” says the judgment adding that the petition and the impugned judgment failed to establish that the amendments were unconstitutional, nor have we been so persuaded in this regard.

The majority judgment held that the Constitution had set out 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,” says the judgment.

The court held that the chief justice and the judges of the Supreme Court were not the gatekeepers of Parliament.

The majority judgment noted that the ordinance was enacted 34 days after the then 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 takeover,” says the judgment

The court further noted that the preamble of the ordinance provided the reason for its enactment, which was, ‘to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices.

“However, those politicians who came over to General Musharraf and/or joined the political party sponsored by him were exonerated,” says the judgment adding that the manner in which the provisions of the ordinance were applied, or were disregarded, led to the widely held perception that the Ordinance primarily was an instrument of political victimization and political engineering.

The court noted that in the new dispensation of General Musharraf many coveted the baubles, trinkets and pomp, which he offered, and by siding with his dictatorial rule became complicit in the wrecking of the Constitution and the illegal and undemocratic actions that were taken.

The court allowed the Intra Court Appeals of the federal government and set aside the impugned judgment, and dismiss the Petition. The court however, declared that there is no order as to the costs.