Highlights from Supreme Court’s verdict - 2
Section 14 of the First Amendment
Change implemented:
Section 14 deleted Section 21(g) of the NAB Ordinance which permitted foreign evidence to be admissible in legal proceedings under the mutual legal assistance regime.
Reasoning: The order said that it was a “common fact” that many people being tried under the NAB Ordinance had stashed their wealth and assets abroad in tax havens under fiduciary instruments.
It added that after the omission of Section 21(g), the admissibility of foreign public documents would be governed by Article 89(5) of the Qanun-e-Shahadat Order, 1984.
The verdict pointed out that the process of admitting foreign public documents under the above order was “protracted and cumbersome”.
Explaining the proceedings under the aforementioned order, the verdict said such a process naturally entails time as the foreign evidence needs to pass through red tape and thus defeats the purpose for which Section 21(g) was inserted into the NAB Ordinance.
That purpose was that after state cooperation led to the receipt of relevant foreign evidence, it would be directly admissible in legal proceedings initiated under the NAB Ordinance without fulfilling the “onerous conditions” of Article 89(5) of the Qanun-e-Shahadat Order, 1984.
“By deleting Section 21(g) from Section 14 of the NAB Ordinance, the First Amendment has made it near impossible for relevant and necessary foreign evidence to be used in the trials of accused persons. It therefore offends the fundamental rights of the people to access justice and protect public property from waste and malfeasance,” the verdict explains.
Status: Section 14 struck down for being illegal and Section 21(g) restored in the NAB Ordinance for both elected holders of public office and persons in the service of Pakistan with effect from the date of commencement of the First Amendment for facilitating the right to access justice and for protecting their public property from squander.
Section 3 of the Second Amendment
Change implemented:
Section 3 changed the definition of ‘offence’ in Section 5o of the NAB Ordinance by inserting a minimum pecuniary jurisdiction of Rs500 million below which value the NAB cannot take cognisance of the offence of corruption and corrupt practices.
Reasoning: The court verdict noted that as a result of the above change, offences that caused a loss valued at less than Rs500m no longer came within NAB’s ambit.
It said the apparent rationale provided for enhancing the pecuniary jurisdiction was so NAB could be limited to “take only action against mega scandals”.
The court order said the government’s counsel relied on prior verdicts, adding that it was clear from the court pronouncements quoted that NAB’s principal focus was to mainly prosecute mega scandals.
“But whilst the judgments of the superior courts indicate that the minimum pecuniary threshold of NAB should be Rs100m (except in limited circumstances where offences less than Rs100m cannot be prosecuted by any other accountability agency), Section 3 of the Second Amendment has increased this minimum threshold to Rs500m.
“No cogent argument was put forward by learned counsel for the respondent federation as to why Parliament has fixed a higher amount of Rs500m for the NAB to entertain complaints and file corresponding references in the accountability courts when the superior courts have termed acts of corruption and corrupt practices causing loss to the tune of Rs100m as mega scandals,” the court verdict notes.
The order said it was accepted that Parliament was empowered to legislate freely within its legislative competence, however, it was also a settled principle of Pakistan’s constitutional dispensation that the three state organs performed distinct functions and one could not encroach into another’s jurisdiction.
“By enacting Section 3 of the Second Amendment we are afraid that Parliament has in fact assumed the powers of the judiciary because 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, Parliament has effectively absolved them from any liability for their acts,” the order said.
It added that this was a function which under the Constitution only the judiciary could perform with the exception of a presidential pardon.
The order said that the government’s counsel had argued that the increase in the pecuniary threshold did not mean public officeholders were absolved and there were other accountability forums as well.
The order said the counsel had referred to the provisions of the Prevention of Corruption Act, 1947; Pakistan Penal Code (PPC), 1860; Income Tax Ordinance, 2001; and Anti-Money Laundering Act, 2010.
However, the verdict said a careful examination of the first two showed they were applicable only to public servants and not to elected public officeholders for a number of reasons the order expounded upon.
Thus, it said that in contrast to what the government counsel had said, elected holders of public office were not triable under the 1947 Act or the PPC for the offence of corruption and corrupt practices.
The court order said Section 3 of the Second Amendment had “undone the legislative efforts beginning in 1976 to bring elected holders of public office within the ambit of accountability laws” because elected public office holders were granted retrospective and prospective exemption from accountability laws.
“Once excluded from the jurisdiction of the NAB no other accountability fora can take cognisance of their alleged acts of corruption and corrupt practices as noted above.
“Such blanket immunity offends Articles 9, 14, 23 and 24 of the Constitution because it permits and encourages the squandering of public assets and wealth by elected holders of public office as there is no forum for their accountability.
“This in turn affects the economic well-being of the state and ultimately the quality and dignity of the peoples lives because as more resources are diverted towards illegal activities less resources remain for the provision of essential services to the people such as health facilities, education institutes and basic infrastructure etc,” the court verdict reads.
It added that the immunity granted also negated Article 62(1)(f) of the Constitution and offended the equal treatment command of Article 25 as differential treatment was being meted out to persons in the service of Pakistan compared to elected holders of public office.
Thus, there would be an “anomalous situation” if Section 3 was allowed to remain on the statute book, the order pointed out.
Status: Termed unconstitutional, declared to be ultra vires the Constitution and of no legal effect for elected public office holders.
Declared intra vires and Rs500m bar to continue for people in service of Pakistan regarding offences contained in Section 9a(i-v) of the NAB Ordinance since they can be tried under Prevention of Corruption Act, 1947.
Declared void and without legal effect from the date of commencement of the Second Amendment for people in service of Pakistan regarding offences noted in Section 9a(vi)-(xii) of the NAB Ordinance, since they cannot be tried under Prevention of Corruption Act, 1947 or any other accountability law, for discharging the accused without trial which is tantamount to legislative judgment thus Rs500m bar will not apply.
Section 14 of the Second Amendment
Change implemented:
Section 14 added a second provision to Section 25(b) of the NAB Ordinance whereby an accused who enters into a plea bargain duly approved by the accountability court under Section 25(b) can renege from the same if they have not paid the full amount of the bargain settlement as approved by the accountability court.
Reasoning: The court order noted that this provision appeared to protect the interests of the state by ensuring prompt recovery of looted public money.
However, it said that despite the “benign purposes” behind introducing the provision, its actual effect was that it nullified Section 25(b), which was inserted to facilitate the early recovery of ill-gotten wealth through a settlement where practical, because it placed no restrictions on the accused from revoking the plea bargain entered by them.
“The second proviso gives the accused an uninhibited right to withdraw from a plea bargain without obtaining the approval of the accountability court which in the first place approved the plea bargain,” the verdict pointed out.
It added that the accountability court’s exclusion from the process undermined the judiciary’s independence and violated Article 25 of the Constitution.
It further said that allowing an accused person to renege from their plea bargain would be tantamount to conferring an unlawful benefit on them since they would “escape the consequences stipulated in Section 15(a) of the NAB Ordinance”.
Status: Declared void and of no legal effect, second provision to Section 25(b) struck down from NAB Ordinance from the date of commencement of the Second Amendment for exceeding its purpose by nullifying Section 25(b), for violating the independence of the Judiciary and for enabling accused persons to avoid the consequences of Section 15(a).
https://www.dawn.com/news/1776033/highlights-from-supreme-courts-verdict-on-nab-amendments
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The Journal of America Team:
Editor in chief:
Abdus Sattar Ghazali
Senior Editor:
Prof. Arthur Scott
Special Correspondent
Maryam Turab
