Supreme Court’s Justice Mansoor Ali Shah on Monday observed that members of the armed forces and judges of constitutional courts were “fully liable” under accountability laws.

He made this observation in a dissenting note for the apex court’s September 15 verdict wherein it struck down changes to the accountability laws and ordered the restoration of corruption cases against public office holders.

A three-member bench comprising then-chief justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Shah had announced the verdict on PTI Chairman Imran Khan’s 2022 petition challenging amendments made to the National Accountability Bureau’s (NAB) laws.

Justice Bandial and Justice Ahsan had declared Imran’s plea to be maintainable while Justice Shah had disagreed with the majority verdict, saying that not just the corruption cases but inquiries and investigations should also be restored.

In the hearings towards the end of the case proceedings, Justice Shah had repeatedly urged for a full court to hear the case, citing the then-frozen Supreme Court (Practice and Procedure) law.

The top court is now set to hear the first-ever intra-court appeals (ICAs) against the majority judgement, which have been filed by the federal government and former SSGCL managing director Zuhair Ahmed Siddiqui.

In the detailed note issued today, Justice Shah concluded that Imran’s petition was “meritless”.

He noted that the petitioner’s counsel “utterly failed to clearly establish beyond any reasonable doubt that the challenged amendments in the NAB Ordinance are constitutionally invalid on the touchstone of ‘taking away’ or ‘abridging’ any of the fundamental rights”.

On the matter of members of the armed forces being held accountable, which had previously been discussed in multiple hearings of the case, Justice Shah noted that the “generally professed opinion that members of the armed forces and the judges of the constitutional courts are not triable under the anti-corruption criminal laws of the land, requires some clarification”.

He highlighted that such an understanding would “make the members of the armed forces and the judges of the constitutional courts untouchable and above the law”.

The same would be “reprehensible and revolting to the conscience of the people of Pakistan and bring the court into serious disrepute”, the judge added.

“We must, therefore, strongly shun the above generally professed opinion and be clear that members of armed forces and the judges of the constitutional courts are fully liable under the NAB Ordinance, like any other public servant of Pakistan,” he stated.

Public office holders still triable under other laws

Stating the reasons for dissenting the majority verdict, Justice Shah said that even after the challenged amendments, public office holders were “still triable under the Prevention of Corruption Act 1947 (PCA) and the Pakistan Penal Code 1860 (PPC) for the alleged offences of corruption and corrupt practices and no one goes home scot-free”.

“They are still triable under other laws. This aspect has been, with respect, seriously misunderstood by the majority,” Justice Shah noted.

Explaining his observation later, he recalled that the majority judgement had “found that the elected holders of public offices do not fall within the definition of ‘public servant’”.

It had “failed to fully examine the definition of the expression ‘public servant’ provided in the latter part of clause ninth of Section 21, PPC,” the judge added.

Listing bribery, embezzlement, kickbacks, nepotism and cronyism, extortion, money laundering, shell companies, fraudulent land deals, insider trading, and tax evasion as the means to commit corruption, Justice Shah said all these actions were triable for the offence of corruption not only under the PPA and the PPC but also the “under the Income Tax Ordinance 2001, the Anti-Money Laundering Act 2010 and the Elections Act 2017, etc”.

‘Not domain of courts’ to determine thresholds for probe

He further observed that the “challenged amendment of adding the threshold value of Rs500 million for an offence to be investigated and tried under the NAB Ordinance simply changes the forums for investigation and trial of the alleged offences of corruption and corrupt practices involving the amount or property less than Rs500m”.

The judge highlighted that the matter fell “within the exclusive policy domain of the legislature (Parliament)”. He noted that it was “not the domain of the courts to determine what value of the amount or property involved in an offence of corruption and corrupt practice makes it one of ‘mega scandals’ to be investigated and tried under the NAB Ordinance”.

Justice Shah also pointed out that the omission of Section 14 (presumption against accused accepting illegal gratification) of the NAB Ordinance made through the majority verdict made “no substantial effect in view of the provisions of Article 122 of the Qanun-e-Shahadat 1984”.

On the addition of the words “through corrupt and dishonest means” in section 9(a)(v) of the NAB Ordinance, the apex court judge stated it also had “no substantial effect”.

Amendments do not abridge fundamental rights

The SC judge further noted that the NAB amendments did “not take away or abridge any of the fundamental rights guaranteed under Articles 9 (security of person), 14 (inviolability of dignity of man, etc), 23 (provision as to property), 24 (Protection of property rights) and 25 (equality of citizens) of the Constitution”.

Terming the petitioner’s counsel’s argument as “quite circuitous”, Justice Shah observed: “With respect, I am completely at a loss to understand the correlation of the claimed right to the accountability of the elected representatives through criminal prosecution with fundamental rights to life (Art. 9), dignity (Art. 14), property (Art. 24) and equality (Art. 25).”

He wrote that the “mode of holding the elected representatives accountable for the offences of corruption […] has not been provided by the Constitution but by the sub-constitutional laws — the PPC, the PCA and the NAB Ordinance”, which he said the Parliament had the power to enact, amend, modify or repeal.

Justice Shah noted that the fundamental rights guaranteed in the Constitution were “not capable of precise or permanent definition” and that the “courts are to construe the fundamental rights guaranteed in the Constitution with a progressive, liberal and dynamic approach”.

However, he observed that it did not mean that the “judges are at liberty to give any artificial meaning to the words and expressions used in the provisions of the fundamental rights, on the basis of their subjective ideological considerations”.

“The acceptance of ‘remote and uncertain effect’ [of the changes to the NAB laws] on a fundamental right as an infringement of that right, I am afraid, would thus reduce to naught the principle of trichotomy of power,” Justice Shah added.

The SC verdict

The 55-page detailed judgment had restored all inquiries, investigations and references that were disposed of based on the now struck-down sections of NAO to their positions before the amendments, and thus deemed to be pending before relevant forums.

In the judgment, the Supreme Court also ordered NAB and all accountability courts to go ahead with the restored proceedings according to the law.

“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, which shall be proceeded with in accordance with law from the same stage these were at when the same were disposed of/closed/returned,” the judgment had said.

It had held Imran’s petition maintainable on account of violating Articles 9, 14, 24 and 25 of the Constitution and for affecting the public at large because the unlawful diversion of state resources from public development projects to private use leads to poverty, declining quality of life and injustice.

The judgment had explained that Section 3 of the Second Amendment pertaining to Section 5(o) of NAO sets the minimum pecuniary threshold of NAB at Rs500 million and Section 2 of the 2022 amendments pertaining to Section 4, which limits the application of the ordinance by creating exceptions for public office-holders, are declared void ab initio.

Likewise, Section 3 of the Second Amendment and Section 2 of the 2022 amendments pertaining to Section 5(o) and Section 4 of the NAO had been declared to be valid.

Under this provision, the persons in the service of Pakistan have been omitted from the NAO since these persons can still be tried under the Prevention of Corruption Act 1947 for the offence of corruption and corrupt practices even if they stand excluded from the jurisdiction of NAB.

The phrase “through corrupt and dishonest means” inserted in Section 9(a)(v) of the NAB ordinance along with its Explanation II had also been struck down from the date of commencement of the First Amendment for references filed against elected holders of public office.

Similarly, Section 14 had also been omitted, which allowed the accountability court to draw different evidentiary presumptions against the accused.

Likewise, Section 21(g) of the NAB ordinance had been restored from the date of commencement of the First Amendment. The amendment has omitted this provision, which allowed evidentiary material transferred by a foreign government through Mutual Legal Assistance (MLA) as evidence. Consequently, Sections 10 and 14 of the First Amendment are declared void.

Therefore, “all orders passed by the NAB and/or the Accountability Courts placing reliance on the above Sections are declared null and void and of no legal effect”, the judgment had said.