A FEW weeks ago, the Supreme Court struck down two acts that amended the National Accountability Ordinance. The amendments were primarily introduced to limit the applicability of the NAO to certain persons and transactions, alter the definition of ‘offence’ and limit the offence of misuse of authority to only those actions taken in bad faith or where there was evidence of monetary benefit.

The amendments were struck down on the grounds that they were in excess of the legislative powers of parliament and in violation of fundamental rights. However, the reasons given by the Supreme Court rest on a slippery slope. They undermine the trichotomy of powers, the supremacy of parliament and when the principles set in the judgement are applied to other cases, the results can be absurd. Two examples explain this concern.

One of the main amendments that was struck down pertained to the definition of an ‘offence’ in s.5(o) where the National Accountability Bureau’s jurisdiction was excluded if the value was below Rs500 million. The reason for striking down s.5(o) was based on the premise that by increasing the threshold and excluding NAB’s jurisdiction, parliament had given immunity to persons against being tried for corruption of value between Rs100m to Rs500m, without a judicial pronouncement, which encroached on the domain set exclusively for the courts.

While corruption is a huge problem and ought to be prosecuted seriously, if we apply the reasoning behind the decision to cases dealing with similar legal issues, the outcome will defeat the constitutional structure.

There are concerns about the court’s decision on the NAO.

Applying this principle to a less controversial issue makes the problem obvious. Take the example of the Criminal Law Amendment Act, 2022, through which Section 325 of the Pakistan Penal Code was repealed, ie, the offence of attempting suicide was decriminalised. If the same reasoning is applied to the CLA’s legality, parliament could not have decriminalised attempted suicide and the determination of liability would always have to be made by the court. If that is the case, can parliament never decriminalise an offence or reduce punishment for any offence without a judicial decision?

Take another example, the amendment acts amended s.4, which mainly, ousted the jurisdiction of NAB and courts where there was a decision of the cabinet, the Economic Coordination Committee, SOEs, etc, only if there was no monetary benefit involved. The Supreme Court, however, did not consider this. The amendment to s.4 had the effect of limiting the perverse incentives created by NAO for good-faith actions, a fact recognised by the court, by tying it together with collective decision-making and giving immunity to those decisions — an idea loosely based on the Condorcet jury theorem, ie, the probability of a group of individuals arriving at a correct decision is more likely than one individual.

The apex court struck down the amendment on the ground that it impinged on the right to life, dignity, property and equality by taking away the only forum of accountability of public office holders created by the legislature. In other words, what the court was saying is that when the legislature provided a forum for accountability in 1999, it did so to guarantee certain rights since it could prosecute accountability-related offences, and once parliament created that forum, it could not take it away because if it did, it would end up violating fundamental rights. That is an implausible proposition. Does that mean that before 1999 when there was no forum, or before the Ehtesab Bureau, parliament’s failure to legislate on the issue was a violation of fundamental rights such that the failure to legislate would also become justiciable?

The point to consider for implications of the reasoning on other matters is the institutional difference between the legislature and judiciary. For the former, there is greater reliance on the electoral process for selection of legislators, and provided the system is allowed to work, accountability will always be there (among other legal options); while the courts play a vital role in structuring the overall process of representation or checking against legislative excesses, they cannot impeach laws that are clear. The courts cannot be expected to safeguard and guarantee all rights that do not directly affect fundamental rights, and even though these laws may be “uncommonly silly”, it “is not for the courts to substitute their social and economic beliefs for the judgement of legislative bodies, who are elected to pass laws”. (Griswold vs Connecticut).

But with the Supreme Court upholding the Practice and Procedure Act relating to prospective appeals, there is now room to revisit the NAB decision. Here’s hoping that the court takes this opportunity and controls the impact of the decision on subsequent cases.

The writer is a lawyer.
samar.masood2@gmail.com

Published in Dawn, October 17th, 2023