HASNAAT MALIKISLAMABAD: In a highly anticipated verdict, a majority of the Supreme Court ruled in favour of former prime minister Imran Khan’s petition challenging amendments made to the National Accountability Ordinance (NAO) 1999 by the PDM-led government during its tenure, allowing corruption cases against public offenders to proceed as before.

The three-member bench hearing NAB amendments case comprises Justice Umar Ata Bandial (L), Justice Mansoor Ali Shah (C) and Justice Ijazul Ahsan (R). PHOTO: FILE

By a vote of 2 to 1, the Supreme Court has ordered the reopening of all closed corruption cases involving political figures from different parties and public office holders involving amounts of corruption less than Rs500 million.

The court has ruled that the changes are invalid.

The Supreme Court has also ordered the NAB to return all case records to the appropriate courts within seven days.

The CJP has called proposed changes to NAB law “dubious.”

The ruling further shows how the challenged NAB modifications violated the rights guaranteed by law. On his last day on the bench, Pakistan’s Chief Justice Umar Atta Bandial made the following order: “By a majority of 2:1 (Justice Syed Mansoor Ali Shah dissenting), Constitution Petition No.21 of 2022 is allowed.”
The court has also overturned accountability court rulings that relied on the new legislation.

Specifically, according to a written order obtained by The Express Tribune, “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.”

The court has also ordered the NAB and accountability courts to follow the law when carrying out the revived procedures.

The order specifies that “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,” after which “these shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned.”

Major parties, including the PML-N and PPP leadership, are expected to appeal the majority judgement, which is seen as a defeat for them.

There were a total of 53 hearings on Imran Khan’s plea before a special bench of three judges chaired by CJP Bandial and including Justice Ijaz ul Ahsan and Justice Syed Mansoor Ali Shah.

Because unlawful diversion of state resources from public development projects to private use leads to poverty, a declining quality of life, and injustice, the ruling explained, the petition was maintainable because it violated 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 affected the public at large.

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

Meaning of the Word “Offence”

The majority judgement pointed out that Section 3 of the Second Amendment altered 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 practises; causing loss to the tune of Rs100 million as mega scandals.

According to the ruling, Section 3 of the second amendment effectively absolves public officials who have been accused of corruption and corrupt practises involving an amount of less than Rs500 million from liability for their actions because it removes them from the purview of the National Accountability Bureau Ordinance.

It pointed out that this is a constitutionally mandated role for the judiciary (with the exception of presidential pardons, which are granted by the president in accordance with Article 45 of the Constitution).

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

If someone is removed from the NAB’s jurisdiction, no other accountability forum can consider their alleged corrupt actions or practises.

According to the judgement, Articles 9, 14, 23, and 24 of the Constitution are violated when there is no venue for holding elected holders of public office accountable for the waste of public assets and riches.

The ruling pointed out that this has repercussions for the state’s economy and the people’s quality of life and dignity as a whole because fewer funds are available to provide necessities like healthcare, schools, and roads when more money is spent on illegal activities.

It went on to explain how the immunity violated Article 62(1)(f) of the Constitution, which states that only “sagacious, righteous, non-profligate, honest, and ameen” individuals may serve in parliament.

As those in the service of Pakistan are still subject to prosecution for the crime of corruption and corrupt practises under the 1947 Act, this violates the equal treatment command of Article 25 of the Constitution because those in the service of Pakistan are being treated differently than elected holders of public office.

Section 5(1)(e) of the 1947 Act allows for prosecution of public servants who have amassed assets beyond means, and Section 5(3) of the 1947 Act allows for an evidentiary presumption to be drawn against public servants who cannot account for their disproportionate pecuniary resources or property. These provisions are also found in the NAB Ordinance. Thus, an unusual scenario will arise if Section 3 of the Second Amendment is permitted to remain on the statute books, as elected holders of public office will be free from responsibility under the revised and significantly loosened standards of the NAB Ordinance.

Parliament’s attempt to curb in the NAB’s unguided powers and shield the bureaucracy from unwarranted harassment was recognised by the court as an attempt in section 2 of the 2022 Amendments.

Section 2’s exemptions, however, function as a blanket immunity for all public officeholders from legal responsibility.

There are no pending references before the Accountability Courts that meet the newly inserted requirement 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.

In cases where the NAB is unable to provide this requirement, references will be returned, as they always have been.

The court ruled that references submitted against elected public officials prior to the implementation of the first amendment are invalid because the language “through corrupt and dishonest means” was added to Section 9(a)(v) of the NAB Ordinance together with its explanation II.

Further, it determined that Article 1, Section 8 is null and void in this regard.

For references submitted against persons in the service of Pakistan, Section 9(a)(v) of the NAB Ordinance, as amended by Section 8 of the first amendment, shall be kept in its entirety.

From the date of the first amendment’s implementation, the court reinstated Section 14 and Section 21(g) of the NAB Ordinance. As a result, Sections 10 and 14 of the first amendment are null and void, and Section 25(b)(2) of the NAB Ordinance is rendered null and void as of the effective date of the second amendment.

As a result, the second amendment’s Section 14 is null and void to that extent.

The court ruled that bank statement entries are no longer considered assets due to the addition of Explanation II to Section 9(a)(v), as banking transactions are only considered assets if there is evidence of the development of a corresponding asset through particular transactions.

It goes without saying that bank records are typically the most pivotal evidence in financial crimes, but now “the source, object, and quantum of credits/receipts in the bank accounts can no longer be shown for proving the creation of assets,” nor can debit transfers from one account to another show accumulation of money for the creation of an asset.

“At first glance, the amendments to Section 9(a)(v), the addition of explanation II, and the deletion of Section 14(c) may seem innocuous in nature, but their effect, both individually and collectively, has actually rendered the offence of corruption and corrupt practises in the category of assets beyond means.”

If those who have been accused of corruption are not punished for amassing riches beyond their means, then that wealth and other public assets will be lost forever, fueling the cycle of corruption. The state’s economic well-being will be jeopardised, which will have a direct negative impact on the people’s right to life and to public property.

Despite being outside of NAB’s purview due to Section 4 of the NAB Ordinance’s revisions, the court remarked that those in Pakistan’s employ are still subject to prosecution under the 1947 Act for corruption and corrupt practises.

Elected holders of public office, on the other hand, are only subject to the NAB Ordinance, so the omission of Section 14(c) and amendment to Section 9(a)(v) would result in inequitable treatment of similarly situated individuals. This is because, while persons in the service of Pakistan are exempt from prosecution for the offence under Section 9(a)(v), elected holders of public office are subject to trial under the 1947 Act.

The Supreme Court ruled that this would violate Article 25’s mandate for equal treatment and that the other presumptions contained in Section 14 of the NAB Ordinance for the other categories listed in Section 9(a) ibid, also stand revived because their absence would prevent the recovery of public assets and wealth from the holders of public office, thereby undermining the people’s fundamental rights to access justice and to protect their public property.

More so when no other accountability law, including the 1947 Act, provides for “comparable presumptions” 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.”

As the court pointed out, Section 21(g) of the NAB Ordinance was left out of the first amendment’s Section 14.

It is a well-known fact that many defendants in cases brought under the NAB Ordinance have hidden their money and assets in offshore tax havens through trusts and other legal mechanisms. However, after this clause is removed, the Qanunbe-Shahadat Order, 1984, Article 89(5), shall govern the admissibility of foreign public materials.

To quote the 1984 Order: “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, two attesting witnesses from the foreign country must enter personal presence to prove the execution of the foreign private document in accordance with the method outlined in Articles 17 and 79 of the 1984 Order.

Such a procedure “naturally entails time as the foreign evidence needs to pass through red tape,” and thus “frustrates the purpose for which Section 21(g) was inserted into the NAB Ordinance,” which is “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.”

Due to Section 21(g)’s removal from the NAB Ordinance, it is now extremely difficult to use relevant and necessary foreign evidence in trials of accused persons, as required by Section 14 of the First Amendment. As a result, it violates citizens’ rights to due process and the prevention of waste and abuse of public resources.

With the First Amendment’s effective date, “Section 21(g) of the NAB Ordinance is hereby restored for both elected holders of public office and persons in the service of Pakistan in order to facilitate people’s right to access justice and to protect their public property from squander.” The ruling declared that Section 14 of the First Amendment was invalid because it violated the law.

Therefore, the second proviso to Section 25(b) of the NAB Ordinance violates Article 175(3) of the Constitution by excluding the accountability court.

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

According to the ruling, the accused must either resign from any public office he currently holds or be permanently barred from running for public office or accepting nomination or appointment for a period of ten years. Thus, permitting a defendant to back out of a plea deal would be the same as giving him an illegal advantage, as he would avoid the penalties outlined in Section 15(a) of the NAB Ordinance.