Accountability law amendments struck down: SC restores cases against public office-holders

ISLAMABAD: In a landmark 2-1 majority verdict, the Supreme Court of Pakistan on Friday scrapped amendments made to the controversial National Accountability Ordinance (NAO), 1999 and ordered to immediately restore all graft cases against public office holders, withdrawn after the amendments to the accountability law.

On the very last day of him calling the shots as the country’s top judge while heading a three-judge bench comprising Justice Ejazul Ahsan and Justice Syed Mansoor Ali Shah, the CJP handed an outright rejection to the highly controversial NAB law, through which, the previous regime of Pakistan Democratic Movement (PDM) had given a clean chit to the political bigwigs in some mega corruption cases.

The Chief Justice Bandial drove off– as September 16 (today) would be his last day in office – immediately after announcing the short verdict which, the bench had reserved on September 5 after over 50 hearings on a petition filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan against the amendments.

Supreme Court annuls amendments to NAB Ordinance

Justice Mansoor Shah did not agree with the two judges of the bench and penned a dissenting note. However, the dissenting note was not read out in court as per tradition.

According to the verdict, the petition against NAB amendments was declared maintainable with a majority decision, restoring all closed inquiries filed with the top anti-graft body. The apex court ordered the restoration of all graft cases below a sum of Rs500 million which were closed down against the political leaders belonging to different political parties and public office holders and declared the amendments null and void.

The amendment to the plea bargain clause was also declared illegal. The clauses relating to benami properties and accounts were also declared null and voided.

Besides, the court directed the National Accountability Bureau (NAB), which is now headed by a pensioned three-star general, to transfer all pending inquiries, investigations, and trials to relevant authorities within seven days.

The court also declared null and void verdicts issued by the accountability courts in light of the amendments made to the NAB law and directed the NAB to send the record of the cases to relevant courts within a week.

In its 58-page detailed verdict, issued later in the evening, the apex court said that the petition was declared maintainable as the amendment to NAO 1999 affected the public at large as unlawful diversion of state resources from public development projects to private use leads to poverty, declining quality of life and injustice.

It said that section 3 of the 2nd amendment pertaining to section 5(o) of the NAB Ordinance which sets the minimum pecuniary threshold of NAB at Rs500 million and section 2 of 2022 Amendments pertaining to section 4 of the NAB Ordinance which limits the application of NAB Ordinance by creating exceptions for holders of public office are declared void ab initio insofar as these concern the references filed against elected holders of public office and references filed against persons in the service of Pakistan for the offences noted in Section 9(a)(vi)-(xii) of NAB Ordinance.

It said that section 3 of 2nd amendment and section 2 of the 2022 Amendments pertaining to sections 5(o) and 4 of the NAB Ordinance are declared to be valid for references filed against persons in Service of Pakistan for offences listed in section 9(a)(i)-(v) of the NAB Ordinance.

“The phrase ‘through corrupt and dishonest means’ inserted in section 9 (a)(v) of the NAB Ordinance along with its explanation II is struck down from the date of commencement of the first amendment for references filed against elected holders of public office. To this extent section 8 of the First Amendment is declared void,” it added.

Section 9 (a) (v) of the NAB Ordinance, as amended by section 8 of the first amendment, shall be retained for references filed against persons in the service of Pakistan, it added.

According to the verdict, the NAB Ordinance is declared to be invalid from the date of commencement of the Second Amendment, adding section 14 of the second amendment is void to this extent.

“On account of our above findings, 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. Therefore, all inquiries, investigations and references which have been disposed of on the basis of the struck down sections are restored to their positions prior to the enactment of the 2022 amendments and shall be deemed to be pending before the relevant fora,” the verdict said, adding NAB and all Accountability Courts are directed to proceed with the restored proceedings in accordance with 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 verdict said.

The verdict has some far-reaching consequences as the striking down of the amendment would mean that references against some of the country’s political bigwigs will once again land in the accountability courts.

These include the Toshakhana reference against Pakistan Muslim League-Nawaz (PML-N) supremo Nawaz Sharif, Pakistan People’s Party co-chairman Asif Ali Zardari and ex-prime minister Syed Yousuf Raza Gilani along with the liquefied natural gas (LNG) reference against another ex-premier Shahid Khaqan Abbasi, the rental power reference against ex-prime minister Raja Pervez Ashraf, cases against ex-premier Shehbaz Sharif, and Shaukat Aziz, among many others.

With the verdict, a graft case against the caretaker prime minister Anwaar-ul-Haq Kakar would also be restored, as were cases against Faryal Talpur of PPP, and former federal ministers including Ishaq Dar, Khawaja Saad Rafique and Rana Sanaullah of PML-N.

Other politicians whose corruption cases would also be reopened include Javed Latif along with Akram Durrani, Saleem Mandviwala, former Public Accounts Committee Chairman Noor Alam Khan, former Balochistan chief minister Nawaz Aslam Raisani, Dr Malik Baloch, former Balochistan chief minister Nawab Sanaullah Zehri, former federal minister Birjees Tahir, Nawab Wassan, Sharjeel Inam Memon, Latif Jatoi, Engineer Amir Muqam, Jaffar Khan Mandokhel, former Gilgit-Baltistan governor Mehdi Shah, Abdul Aleem Khan, Syed Adil Gilani, ex-PTI members including Makhdoom Khusro Bakhtiar and Amir Mehmood Kiani.

The last coalition government of PDM led by the Pakistan Muslims League-Nawaz (PML-N) had introduced some key amendments to the NAO, which became law after being passed in a joint sitting of parliament as President Dr Arif Alvi had declined to give assent to the bill.

The key NAB amendments done by the PDM regime include the reduction of the four-year term of the NAB chairman and the bureau’s prosecutor general to three years, as well as, placing all regulatory bodies functioning in the country out of the NAB’s jurisdiction.

Besides, the changes included that a three-year term be set for the judges of the accountability courts and that courts be bound to decide a case within one year.

Challenging the amendments, Imran Khan approached the apex court and petitioned that the amendments be struck down on the grounds that they were unconstitutional. The petition argued that amendments to sections 2, 4, 5, 6, 25, and 26 of the NAB law are against the Constitution, along with amendments made to sections 14, 15, 21, and 23. Furthermore, he argued that amendments in the NAB law are contrary to the fundamental rights, adding all amendments made to NAB law should be declared null and void.

To hear Imran Khan’s plea, a special three-judge bench was formed on July 15, 2022. The first hearing of the case against the NAB amendments was held on July 19 last year after Khan’s lawyer Khawaja Haris filed an application 184/3 against the NAB amendments.

Copyright Business Recorder, 2023