Changes in NAB law restored: SC declares ‘NAO 1999’ amendments null and void

ISLAMABAD: The Supreme Court, unanimously, allowing the appeals of the federal government and some individuals, set aside the judgment, declaring the amendments made to the National Accountability Ordinance (NAO) 1999, null and void, thus changes in the NAB law restored.

A five-member bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Aminuddin Khan Justice Jamal Khan Mandokhail, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, on Friday, announced its reserved judgment on the federation’s and some individuals’ appeals.

Justice Minallah wrote an additional note; “I have carefully read the opinion eloquently authored by the Chief Justice and I concur that the impugned majority judgment is liable to be set aside.”

A three-judge bench, headed by former Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah on September 15, 2023 by a majority of 2:1 declared most provisions of the amendments made to the NAB Ordinance as unconstitutional.

The five judges’ judgment, authored by Justice Faez, said; “The petition (filed by ex-PM Imran Khan) and the impugned judgment failed to establish that the amendments were unconstitutional nor the Court has been so persuaded in this regard.”

The majority decision states that the petition was maintainable because it violated the following Fundamental Rights enshrined in Articles 9 (security of person), 14 (inviolability of dignity of man), 24 (protection of property rights) and 25 (equality of citizens). However, there is no discussion in the impugned judgment stating how the Amendments made to the Ordinance contravened these Fundamental Rights.

The judgment noted that some of the amendments (in NAO) gave effect to the decisions of the superior Court, that Niazi himself was the architect of many of the provisions which were later incorporated into the amendments and that Niazi did not act bona fide.

The judgment said: “Every care should be taken to ensure that neither [constitutional institution] encroaches onto the domain of the other. Constitutional institutions better serve the people when they respect each other and perform the functions respectively granted to them by the Constitution.” “The Chief Justice and the Judges of the Supreme Court are not the gatekeepers of Parliament.”

The judgment said the legislation enacted by Parliament or a Provincial Assembly, must be treated with respect and obeyed. “And, if, and only if, legislation contravenes the Constitution, and it be so declared by a superior court having jurisdiction.” “Merely because this Court considers that it could have drafted or formulated a law better than Parliament does not empower it to strike down or disregard legislation enacted by Parliament.”

The impugned judgment did not test the amendments on the touchstone of the Constitution, it instead proceeded to consider the amendments by applying their lordships’ own criteria and yardstick, which, with respect, was not permissible in terms of the Constitution.

It also said that judges must abide, as their oath of office prescribes, by “the Constitution of the Islamic Republic of Pakistan and the law.” Unless the law is clearly found to offend the Constitution, and it is first so declared, it cannot be disregarded or struck down.

The impugned judgment did not demonstrate how the Amendments violated or infringed any of the Fundamental Rights which were cursorily mentioned therein. The impugned judgment had referred to Article 9 (security of person) but did not even briefly explain how anyone’s security was undermined or affected by the Amendments.

Reference was also made to Article 14 (inviolability of dignity of man) but there was no explanation forthcoming on how any of the Amendments had affected anyone’s dignity. The next reference in the impugned judgment was to Article 25 (equality of citizens) but once again no explanation was offered nor was it elaborated how citizens were being subjected to different laws or were being treated differently. Passing reference was also made to Article 23 (provision as to property) and to Article 24 (protection of property) but neither of these Articles were expounded or elucidated with regard to the Amendments, let alone that the Amendments, or any part thereof, offended either of them. Without stating, demonstrating and then establishing that the Amendments, or any of its provisions did not conform to the said Fundamental Rights, the same could not be struck down.

Justice Minallah also wrote that the appeal filed by the federation was not competent under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 and the same is hereby dismissed. However, the appeals preferred by the private appellants were maintainable and the same are allowed. Consequently, the impugned judgment is set aside.

He stated; “The opinion recorded in the minority judgment is affirmed to the effect that members of the Armed Forces and Judges of the constitutional courts are not immune from accountability under the National Accountability Ordinance, 1999.”

Copyright Business Recorder, 2024