ISLAMABAD: Justice Syed Mansoor Ali Shah of the Supreme Court on Wednesday said he wanted to know why PTI Chairman Imran Khan had decided to walk out of parliament instead of opposing recent changes in the National Accountability Ordinance (NAO) [on the floor of the house].

“The petitioner (Imran Khan) could have raised this issue, but he walked out even though he enjoyed the trust of his constituency,” observed Justice Shah. “Now the petitioner has raised the issue before the Supreme Court rather than in parliament,” he said.

Justice Shah made the observations during the hearing of a petition filed by the Pakistan Tehreek-i-Insaf chairman challenging the amen­­dments made in the accountability law in August.

Chief Justice Umar Ata Bandial headed the bench.

PTI chief’s counsel fears amendments will enable the accused to reclaim the amount paid under plea bargain

Justice Ijaz-ul-Ahsan, the third judge on the bench, said the judiciary believed that parliament’s sovereignty was not absolute. “It is subject to the Constitution.”

The fundamental thing here is that accountability is governed by basic Islamic principles, whether in this world or the hereafter, Justice Ahsan observed.

The observations came after Khawaja Haris, Imran Khan’s counsel, compared Sections 25a and 25b of the NAO, through which retrospective effect was given to past and closed transactions, nullifying the entire accountability process.

“The recent amendments are regressive in nature,” the judge observed.

Citing different decisions, Khawaja Haris tried to emphasise that efforts had been made from the outset to curb corruption and the abuse of authority by public office-holders. “But instead of improving the law, loopholes have been left, affecting fundamental rights.”

When the nation’s chosen representatives betray their oath, it amounts to violation of the Constitution, the counsel argued.

Benefits were being given to “certain people” and the amendments to the NAB law were beneficial to them, Khawaja Haris added.

The CJP asked the counsel to cite examples to illustrate that the NAB law amendments had violated the basic principles and the spirit behind accountability.

“Even if the entire NAB law is repealed by parliament, what the apex court can do to help the petitioner,” Justice Shah asked.

The counsel said it was regrettable that through Section 25b of the amended NAB law, provisions of voluntary return and plea bargain had been undone. Payments due through instalments after a partial deposit of 25-33 per cent of the amount agreed upon by the accused with the NAB will now stand waived, he added.

He contended that amendments in the law would benefit an accused since failure to deposit instalments of amounts agreed upon in the plea bargain would no longer invite punishment. “Instead, it would relegate the accused to the position he was in when he entered into plea bargain, either at the inquiry, investigation or trial stage.”

Toothless law

And in case of trial, Khawaja Haris contended, the accused would be facing a toothless law under which offences would no longer be culpable and it would be impossible to prove charges of corruption.

Thus the amendments would ultimately benefit the accused by enabling the individual to reclaim the amount deposited by him at the time of entering into a plea bargain, he feared.

Chief Justice Umar Ata Bandial observed that the amendments were not a relegation but complete exoneration of an accused, while Justice Ahsan described the situation as “fruit of a poisonous tree”.

Another interpretation could be that if the plea bargain becomes irrelevant to the rights of parties, the matter will go back to the trial court, Justice Shah observed.

The counsel, however, argued that even then the accused would “get out of the case”.

“The accused will neither accept the plea bargain agreement nor will he pay instalments.”

Citing Section 25(b) of the NAO, Khawaja Haris argued that it was designed to undo a plea bargain entered into between NAB and an accused by allowing the latter to take a plea that the agreement was reached under duress. Thus the accused could submit an application to a court seeking exoneration from all charges and to allow him to claim refund of the amount deposited, the counsel said.

Justice Shah asked him whether the trial court could look into allegations of coercion, observing that it was not easy to establish allegations of coercion before a court.

“And in case NAB returns the money deposited by an accused, the application for refund will become infructuous.”

The hearing will resume on Thursday (today).

Published in Dawn, October 6th, 2022