Justice Mansoor declares amendments made to NAO as ‘null and void’

ISLAMABAD: The Supreme Court held that if Parliament can enact the National Accountability Ordinance (NAO), then it can also repeal the entire law or amend the same.

Justice Syed Mansoor Ali Shah, who was part of a three-judge bench with ex-CJP Umar Ata Bandial and Justice Ijazul Ahsan as its other member, on Monday, announced his dissenting note on a SC judgment declaring amendments made to the NAO 1999, null and void.

The three-member bench on September 15 by a majority of 2:1 declared the amendments null and void and ordered the reopening of all corruption cases worth less than Rs500 million that were previously closed against political leaders from various parties and public office holders.

The court had directed the NAB to return all case records to the relevant courts within seven days of the date of judgment.

The federal government on October 17 filed the review petition against the SC’s decision. A five-judge bench headed by Chief Justice Qazi Faez Isa, and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Syed Hasan Azhar Rizvi will take the federal government’s appeal today (October 31).

Justice Mansoor’s judgment said that the mode of holding elected representatives accountable for the offences of corruption and corrupt practices through criminal prosecution has not been provided by the Constitution but by the sub-constitutional laws - the PPC, the PCA and the NAB Ordinance. If Parliament can enact these laws in the exercise of its ordinary legislative power, it can surely amend them in the exercise of the same legislative power.

The argument cannot be acceded to that Parliament after enacting these laws has no power to amend, modify or repeal them.

It said the petitioner (Imran Khan), a parliamentarian who chose not to participate in the process of enactment of those amendments, either by supporting or opposing them in the Parliament, has instead challenged those amendments in this Court invoking its original jurisdiction under Article 184(3) of the Constitution.

It is the petitioner’s assertion that the amendments made in the NAB Ordinance infringe on the fundamental rights of the people of Pakistan in general and not of the persons who are to be dealt with in respect of their life, liberty and property under the NAB Ordinance.

Justice Mansoor wrote; “My learned colleagues, the Hon’ble Chief Justice and Hon’ble Justice Ijazul Ahsan (“majority”), have been convinced by the said assertion and have therefore declared most of the challenged amendments ultra vires the Constitution. With great respect, I have not been able to persuade myself to agree with them.”

The judgment observed that since the members of Parliament (elected holders of public office) being “public servants” are triable under the PPC and the PCA for the alleged commission of the offences of corruption and corrupt practice (criminal misconduct), the observation of the majority that once excluded from the jurisdiction of the NAB no other accountability fora can take cognisance of their alleged acts of corruption and corrupt practices, respectfully submitted, does not stand. It said similar is the position with the observation of the majority that by excluding from the ambit of the NAB Ordinance the holders of public office who have allegedly committed the offence of corruption and corrupt practices involving an amount of less than Rs500 million, Parliament has effectively absolved them from any liability for their acts.

Reliance on Mobashir Hassan is; therefore, also not well placed. The judgment noted that the matter of defining a threshold of value for the investigation and trial of offences under the NAB Ordinance is undoubtedly a policy matter that falls within the domain of the legislature, not of the courts.

Copyright Business Recorder, 2023