The Supreme Court on Tuesday summoned 23 years’ worth of case records — from 1999 to June 2022 — from the National Accountability Bureau (NAB) on a petition filed by PTI chief Imran Khan challenging the recent amendments to anti-graft laws.

Chief Justice of Pakistan Umar Ata Bandial passed the orders after a three-member bench, comprising the CJP, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, heard the plea that called the new act a “violation of fundamental rights”.

During the hearing today, the top judge directed NAB to submit details of all the references filed so far along with the investigations completed ever since the amendments were introduced.

“There are several mafias in Pakistan […] I don’t want to take names because corruption is present everywhere in the world,” Justice Bandial said, observing that there were some defects in the accountability laws, while some amendments were of a “very serious nature”.

“The court has to create balance,” he added.

‘Which fundamental law violated?’

At the outset of the hearing today, Justice Shah asked: “On the basis of which constitutional provision should the law be declared null and void?”

Imran’s lawyer Khwaja Haris, while resuming his arguments, replied that the new NAB amendments had made the definition of benamidar very difficult.

The case, he contended, was concerned with politicians involved in corruption. “Wherever public money is concerned, the matter falls under the category of fundamental rights.

“Even people who are public officeholders, matters related to them fall under the category of fundamental rights,” Haris said, pointing out that benami was also a concern in cases pertaining to fake bank accounts.

At one point during the proceedings, the PTI lawyer also said that economic policies should be drafted in a manner to prevent them from affecting fundamental rights.

Here, the CJP said that economic policies was not in the apex court’s purview. “If someone has been charged with a crime, the law has a fully transparent procedure of trial,” he stated.

Subsequently, Haris said that he was taking back his words regarding economic policies.

Meanwhile, Justice Shah questioned the petitioner’s claim of NAB amendments violating fundamental rights. “First tell us which fundamental right was breached because of the new laws.

“Okay, let me simplify the question. Let’s suppose that Parliament has fixed a limit for corruption […] the question is how will it affect a common man? How is it related to a citizen?”

In his response, Haris said that people with pending cases were the real beneficiaries of the new laws.

‘SC’s job is to interpret laws, not design them’

At one point during the hearing, Justice Shah asked: “Is there any judicial precedent where the court has restored a previous law on the petition of a citizen? How can the court annul the law made by Parliament on the petition of the citizen?”

“On issues pertaining to public money, the court can declare the legislation null and void,” the PTI lawyer replied.

However, the judge said that laws could only be repealed when they conflicted with fundamental rights.

“How are fundamental rights affected by NAB amendments,” he asked once again, highlighting that arguments on the point of contravention had not yet been presented.

For his part, Haris said that using the public’s money for corruption was a major violation of basic rights. “The Supreme Court has declared that the state is responsible for preventing corruption and improving economic conditions.”

Separately, Justice Shah observed that in China the punishment for corruption was death and then wondered if a citizen could approach the court in Pakistan seeking the death penalty for corrupt persons.

“We also have to look at our jurisdiction,” he said, adding that the court could tell the Parliament to form accountability laws only if they otherwise didn’t exist. “But if laws already exist, how can the court order them removed?”

He also said that even if the new laws were nullified, “how can the previous laws be automatically restored”. “The Supreme Court’s job is to interpret laws, not to design them.”

Here, Justice Bandial asked who was responsible for determining the extent of corruption in the NAB laws and subsequently summoned records from the anti-graft body from 1999 to June 2022.

Imran’s petition

In his petition, Imran Khan had claimed that the amendments to the NAB law were made to benefit influential accused persons and legitimise corruption.

The coalition government led by the PML-N had introduced 27 key amendments to NAO, but President Dr Arif Alvi did not accord his assent to these. However, the bill was adopted in a joint sitting of parliament and notified later.

The petition pleaded that the fresh amendments tend to scrap corruption cases against the president, prime minister, chief ministers and ministers and provide an opportunity to the convicted public office-holders to get their conviction undone.

“The amendments to the NAO is tantamount to depriving the citizens of Pakistan of having access to law to effectively question their chosen representatives in case of breach of their duty towards the people of Pakistan,” the petition argued.

Moreover, the word “benamidar” has been re-defined, making it difficult for the prosecution to prove someone as fictitious owner of a property, the petition argued.

The application has also challenged the second amendment to the law done by the coalition government on Aug 16 in which offences involving misappropriation of less than Rs500 million were taken out of the purview of the law.

Moreover, absconders who were punished under Section 31 of the ordinance in absentia were also taken out.

The petition stated that most of the changes were ‘person specific’.

The petitioner pleaded that it would be just and fair in protecting the constitutional and fundamental rights of the citizens that NAB should be asked to provide details of all cases, which relate to prominent and influential holders of public office, especially regarding cases pertaining to offences of owning assets (movable and immovable) beyond known sources of income and misuse of authority.

However, the petitioner feared, the recent amendments operated to preemptively exonerate public office holders or their co-conspirators from offences of corruption.

The petition claimed the amendments were also ultra vires of the fundamental rights guaranteed to people in articles 9, 14, 18, 24 and 25 of the Constitution.

NAB law amendment

The NAB (Second Amendment) Bill 2021 states that NAB’s deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.

The bill has also reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years. After approval of the law, NAB will not be able to act on federal, provincial or local tax matters. Moreover, the regulatory bodies functioning in the country have also been placed out of NAB’s domain.

It says that “all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions … shall stand transferred to the concerned authorities, departments and courts under the respective laws.”

It has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB to ensure the availability of evidence against an accused prior to his or her arrest.

According to one of the key amendments, the act “shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999”.