Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday observed that holding the entire cabinet or committee responsible for jointly taken decisions would slow up the country’s decision making process, as the Supreme Court (SC) took up former prime minister Imran Khan’s petition against the recent amendments to the National Accountability Bureau (NAB) ordinance.

A three-member bench, comprising the chief justice himself, Justice Mansoor Ali Shah and Justice Ijazul Ahsan, heard PTI lawyer Khwaja Haris’ arguments on Imran’s plea, which claims the new NAB laws “are a violation of fundamental rights”.

At the outset of the hearing today, Imran’s lawyer pointed out that as part of NAB amendments, the decision of the federal cabinet and working development parties had been excluded from the jurisdiction of accountability watchdog. “The new laws are also a violation of the international conventions of anti-corruption.”

At this, Justice Bandial remarked that important decisions in the country are taken jointly by the federal cabinet and committees, and if all its members were to be deemed accused, “who would take the decisions then?”

“If the parliament starts doing everything, the decision-making process will slow down,” he said.

The CJP questioned the history of NAB law’s application, recalling that cases pertaining to LNG (liquified natural gas) contracts were lodged without proper examination of the facts. “Such contracts are prepared on the government level.”

The top judge said that several bureaucrats were made to serve jail time only to be later acquitted in the reference, adding that “sometimes things are not under the control of the bureaucracy”.

Talking about cases regarding assets beyond means, he said that such cases were considered a crime across the world. “We will review the NAB amendments in the context of international standards and local laws,” Justice Bandial observed.

Meanwhile, Justice Shah inquired if those who managed to come out scot-free from the NAB laws could be punished under any other law.

“There is no other law for misuse of power,” the PTI lawyer replied, adding that after the new amendments, it had become impossible to prove corruption of more than Rs500 million.

‘New laws will promote systematic corruption’

At one point during the hearing, Justice Ahsan observed that the new laws would promote systematic corruption. “The amendments have allowed the provision of financial benefits that do not fall within the category of the NAB law.”

Here, Haris said that action against public officeholders could be taken only after proving the financial benefit they had gained. “A case won’t be merited even if the officeholder’s front man and children were misusing the powers.”

Subsequently, Justice Shah asked if the amendments would have been challenged if they were passed in 1999.

“A law is only challenged when defects are revealed in its implementation,” Haris said, adding that the new NAB laws were formed to benefit “certain people”.

He alleged that the first target of the incumbent government was to close its NAB cases. “Can we just let billions of rupees spent on NAB investigations go to waste?

“Do the judges of accountability courts have doubts that they can’t serve justice,” the PTI lawyer argued.

The court subsequently adjourned the hearing till October 18.

Imran’s petition

In his petition, Imran Khan had claimed that the amendments to the NAB law were made to benefit the 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”.