Corruption Case

P L D 2024 Supreme Court 102
Present: Umar Ata Bandial, C.J., Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ
IMRAN AHMAD KHAN NIAZI —Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary, Law and Justice Division,
Islamabad and another—Respondents
Constitution Petition No. 21 of 2022 and C.M.A. No. 5029 of 2022 in Constitution
Petition No. 21 of 2022, decided on 30th October, 2023.
Per Umar Ata Bandial, CJ.; Ijaz ul Ahsan, J. agreeing; Syed Mansoor Ali Shah, J.
dissenting. [Majority view]
(a) National Accountability Ordinance (XVIII of 1999)—
—-Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)—National Accountability
(Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14—National Accountability
(Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14—Constitution of Pakistan,
Arts. 9, 14, 23, 24 & 184(3)—Constitutional petition filed before the Supreme
Court challenging amendments made to the National Accountability Ordinance,
1999 (“NAB Ordinance”) by the National Accountability (Amendment) Act, 2022
(“First Amendment”) and the National Accountability (Second Amendment) Act,
2022 (“Second Amendment”) (collectively referred to as the “2022 Amendments”)–
-Maintainability—The 2022 Amendments have rendered the NAB toothless in
accomplishing its objective of eradicating corruption and corrupt practices and
holding accountable all those persons accused of such practices and have left public
property belonging to the people of Pakistan vulnerable to waste and malfeasance
by the holders of public office, thereby ex-facie violating Articles 9, 14, 23 and 24
of the Constitution—Detailed reasons for finding the present Constitutional petition
as maintainable stated.
Acts of corruption and corrupt practices do infringe the Fundamental Rights of
the public and thus meet the test of Article 184(3) of the Constitution.
(Suo Motu Case No.19 of 2016) 2017 SCMR 683; Corruption in Hajj
Arrangements in 2010’s case PLD 2011 SC 963; Bank of Punjab v. Haris Steel
Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.
The National Accountability (Amendment) Act, 2022 (“First Amendment”) and
the National Accountability (Second Amendment) Act, 2022 (“Second
Amendment”) (collectively referred to as the “2022 Amendments”) have limited the
NAB’s jurisdiction thus excluding hundreds of pending references from trial before
any forum and have also made the proof of the offence of corruption and corrupt
practices significantly harder for references that satisfy the jurisdictional
requirements of Section 4 and Section 5(o) of the National Accountability
Ordinance, 1999 (“NAB Ordinance”).
The 2022 Amendments exclude the jurisdiction of the NAB to investigate and
prosecute holders of public office in two significant respects thereby ex-facie
violating Articles 9, 14, 23 and 24 of the Constitution by exonerating the holders of
public office from their alleged acts of corruption and corrupt practices by failing
to provide a forum for their trial. The 2022 Amendments have therefore rendered
the NAB toothless in accomplishing its objective of ‘eradicat[ing] corruption and
corrupt practices and hold[ing] accountable all those persons accused of such
practices’ and have left public property belonging to the people of Pakistan
vulnerable to waste and malfeasance by the holders of public office. Such
interference in the NAB’s jurisdiction and powers most certainly affects the
Fundamental Rights of the people at large. Present Constitutional petition fulfils the
requirements of Article 184(3) of the Constitution and so is maintainable.
Progress Report of NAB in OGRA’s case 2015 SCMR 1813 ref.
(b) Constitution of Pakistan—
—-Art. 184(3)—Constitutional petition under Art. 184(3) of the Constitution filed
before the Supreme Court—Antecedents or standing of the petitioner—Not
relevant—When the Supreme Court exercises jurisdiction under Article 184(3) of
the Constitution it is not concerned with the antecedents or standing of the person
who has filed the petition because that person is merely acting as an informant—
Instead, the Court favours a substantive approach focusing more on the content of
the petition and whether the same crosses the threshold set out in Article 184(3)—
Locus standi (of petitioner) is not an impediment when the Court is exercising
original jurisdiction (under Art. 184(3) of the Constitution).
Muhammad Yasin v. Federation of Pakistan PLD 2012 SC 132 and Muhammad
Ashraf Tiwana v. Federation of Pakistan 2013 SCMR 1159 ref.
(c) Constitution of Pakistan—
—-Art. 184(3)—Constitutional jurisdiction of the Supreme Court under Art. 184(3)
of the Constitution—Scope—Vires of legislation—Supreme Court can consider and
decide the vires of legislation in its original jurisdiction.
Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; Liaquat Hussain v.
Federation of Pakistan PLD 1999 SC 504; Mobashir Hassan v. Federation of
Pakistan PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of Pakistan PLD
2012 SC 923 and Zulfiqar Ahmed Bhutta v. Federation of Pakistan PLD 2018 SC
370 ref.
(d) National Accountability Ordinance (XVIII of 1999)—
—-Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)—National Accountability
(Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14—National Accountability
(Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14—Penal Code (XLV of
1860), S. 21—Prevention of Corruption Act (II of 1947), Ss. 2 & 5—Constitution
of Pakistan, Arts. 9, 14, 23, 24, 25, 62(1)(f), 175(3), 184(3) & 260(1)—
Constitutional petition filed before the Supreme Court challenging amendments
made to the National Accountability Ordinance, 1999 (“NAB Ordinance”) by the
National Accountability (Amendment) Act, 2022 (“First Amendment”) and the
National Accountability (Second Amendment) Act, 2022 (“Second Amendment”)
(collectively referred to as the “2022 Amendments”)—Vires of the “2022
Amendments”—Supreme Court declared sections 2, 8, 10 & 14 of the First
Amendment and sections 2, 3 & 14 of the Second Amendment as ultra vires the
Constitution—Detailed reasons for finding the said sections as ultra vires the
Constitution stated.
The National Accountability (Amendment) Act, 2022 (“First Amendment”) and
the National Accountability (Second Amendment) Act, 2022 (“Second
Amendment”) (collectively referred to as the “2022 Amendments”) have brought
about the following modifications in the National Accountability Ordinance, 1999
(“NAB Ordinance”):
i. Section 3 of the Second Amendment has changed the definition of ‘offence’ in
Section 5(o) of the NAB Ordinance by inserting a minimum pecuniary jurisdiction
of Rs.500 million below which value the NAB cannot take cognizance of the
offence of corruption and corrupt practices;
ii. Section 2 of the First Amendment by inserting subsections (a)-(f) into Section
4 of the NAB Ordinance and Section 2 of the Second Amendment by adding
subsection (g) in Section 4 of the NAB Ordinance has excluded certain holders of
public office from application of the NAB Ordinance and thereby limited its effect;
iii. Section 8 of the First Amendment has inserted new ingredients in the offence
under Section 9(a)(v) of the NAB Ordinance and added explanations thereto.
Section 9(a)(v) criminalizes the act of holding assets beyond means;
iv. Section 10 of the First Amendment has deleted Section 14 of the NAB
Ordinance which provides evidentiary presumptions that may be drawn against the
accused;
v. Section 14 of the First Amendment has deleted Section 21(g) of the NAB
Ordinance which permitted foreign evidence to be admissible in legal proceedings
under the mutual legal assistance regime; and
vi. Section 14 of the Second Amendment has added a second proviso 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 he has not paid the full amount of the bargain settlement as approved by the
Accountability Court.
Section 3 of the Second Amendment
Section 3 of the Second Amendment has amended Section 5(o) of the NAB
Ordinance to set the minimum pecuniary jurisdiction of the NAB at Rs.500 million
for inquiring into and investigating cases involving the commission of the offence
of corruption and corrupt practices. As a result, offences that cause loss valued at
less than Rs.500 million no longer come within the ambit of the NAB. The
principal focus of the NAB is to mainly prosecute mega scandals. Whilst the
judgments of the Superior Courts indicate that the minimum pecuniary threshold of
NAB should be Rs.100 million (except in limited circumstances where offences
less than Rs.100 million cannot be prosecuted by any other accountability agency),
Section 3 of the Second Amendment has increased this minimum threshold to
Rs.500 million. No cogent argument was put forward by counsel for the respondent
Federation as to why Parliament has fixed a higher amount of Rs.500 million 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 Rs.100 million as mega scandals.
State v. Hanif Hyder 2016 SCMR 2031; Amjad Hussain v. National
Accountability Bureau 2017 YLR 1 and Iftikhar Ali Haideri v. National
Accountability Bureau 2019 YLR 255 ref.
Counsel for the respondent Federation submitted that merely because the
minimum pecuniary threshold of the NAB has been increased does not mean that
holders of public office stand absolved; that other accountability fora exist in the
country where the trials of the accused holders of public office who have been
removed from the jurisdiction of the NAB can be held. Counsel referred to the
provisions of Prevention of Corruption Act, 1947 (“1947 Act”) and Pakistan Penal
Code, 1860 (“P.P.C.”) amongst other laws. However, on a careful examination of
these legislations it becomes clear that the two are applicable only to public
servants. Under the Constitution persons in the service of Pakistan are those who
are holding posts in connection with the affairs of the Federation or Province. As a
result, such persons are either dealing with the property of the Federal/Provincial
Government or with the pecuniary interests of the Federal/Provincial Government.
They, therefore, come within the definition of public servant set out in the Pakistan
Penal Code, 1860 (‘P.P.C.”) and adopted by the Prevention of Corruption Act, 1947
(‘the 1947 Act’) and so can be prosecuted under these laws for the offence of
corruption and corrupt practices. However, elected holders of public office do not
qualify as public servants under the guise of being in the service of Pakistan
because Article 260 of the Constitution specifically excludes them from such
service. Resultantly elected holders of public office are not triable either under the
1947 Act or the P.P.C. for the offence of corruption and corrupt practices.
R.S. Nayak v. A.R. Antulay AIR 1984 SC 684 and Zakir Hossain Sarkar v. State
(70) DLR (2018) 203 ref.
By virtue of Section 3 of the Second Amendment elected holders of public office
have been granted both retrospective and prospective exemption from
accountability laws. Once excluded from the jurisdiction of the NAB no other
accountability fora can take cognizance of their alleged acts of corruption and
corrupt practices. 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 people’s 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 immunity also negates Article 62(1)(f) of the
Constitution which mandates that only ‘sagacious, righteous, non-profligate, honest
and ameen’ persons enter Parliament. It also offends the equal treatment command
of Article 25 of the Constitution as differential treatment is being meted out to
persons in the service of Pakistan than to elected holders of public office. This is
because persons in the service of Pakistan can still be prosecuted for the offence of
corruption and corrupt practices under the 1947 Act as they fall within the
definition of public servants.
Section 3 of the Second Amendment is ultra vires the Constitution and of no
legal effect on account of absolving persons accused of the offence of corruption
and corrupt practices without a judicial verdict which amounts to legislative
judgment. Since persons in the service of Pakistan can be tried for offences
contained in Section 9(a)(i)-(v) of the NAB Ordinance under the 1947 Act, the bar
of Rs.500 million shall continue for such offences. To this extent Section 3 of
the Second Amendment is declared to be intra vires the Constitution. However, on
account of the fact that persons in the service of Pakistan cannot be tried for the
offences noted in Section 9(a)(vi)-(xii) under the 1947 Act or any other
accountability law the bar of Rs.500 million will not apply to them for such
offences. Section 3 of the Second Amendment is therefore declared to be void and
without legal effect for these offences for discharging the accused without trial
which is tantamount to legislative judgment and is held to be so from the date of
commencement of the Second Amendment.
Province of Punjab v. National Industrial Cooperative Credit Corporation 2000
SCMR 567 ref.
Section 2 of the 2022 Amendments
Section 2 of the 2022 Amendments has altered Section 4 of the NAB Ordinance.
Section 2 of the 2022 Amendments is an attempt by Parliament to rein in the
unguided powers of the NAB and to protect the bureaucracy from unnecessary
harassment. However, the exceptions granted by Section 2 operate as an enmasse
exemption for holders of public office from facing accountability. The freshly
inserted condition that the NAB shall provide evidence of monetary or other
material benefit received by the holder of public office or a person acting on his
behalf to overcome the exceptions listed in Section 2 of the 2022 Amendments
cannot be satisfied in the references already pending before the Accountability
Courts. Therefore, where such condition will not be met by the NAB the result will
be (and in fact has been) that references will be returned. Section 2 of the 2022
Amendments affects the same Fundamental Rights i.e., Articles 9, 14, 23 and 24
and raises the same problems in terms of the accountability of elected holders of
public office as Section 3 of the Second Amendment, namely, that whilst persons in
the service of Pakistan may still be investigated and prosecuted under the 1947 Act
for the offences listed in Section 9(a)(i)-(v) of the NAB Ordinance, elected holders
of public office will not be amenable to the jurisdiction of any other accountability
fora for the offence of corruption and corrupt practices.
Section 2 of the 2022 Amendments is also declared to be void from the date of
commencement of the 2022 Amendments. Section 2 of the 2022 Amendments
insofar as these pertain to the offences set out in Section 9(a)(i)-(v) of the NAB
Ordinance are declared to be intra vires the Constitution because persons in the
service of Pakistan can be prosecuted for these offences under the 1947 Act.
However, Section 2 is ultra vires the Constitution from the date of commencement
of the 2022 Amendments for the offences listed in Section 9(a)(vi)-(xii) of the NAB
Ordinance because persons in the service of Pakistan cannot be tried for such
offences under the 1947 Act or any other accountability law.
Sections 8 and 10 of the First Amendment
Section 8 of the First Amendment has significantly altered Section 9 of the NAB
Ordinance which lays down various categories of the offence of corruption and
corrupt practices. Apart from reducing the circumstances in which the offence of
assets beyond means can be made out against the holder of a public office, the First
Amendment has made another material change in Section 9(a)(v) of the NAB
Ordinance, namely, the obligation on the NAB to prove that an accused has
accumulated substantially disproportionate assets ‘through corrupt and dishonest
means.’ This element was previously not a part of Section 9(a)(v). Prior to First
Amendment the NAB was not required to demonstrate that the accused had
obtained the resources or property ‘through corrupt and dishonest means’ because
the mere presence of disproportionate assets led to the presumption that the accused
had engaged in corrupt and dishonest conduct. Such a presumption is provided in
Section 14(c) of the NAB Ordinance. The fact of the matter is that the proof of
acquisition of assets ‘through corrupt and dishonest means’ itself constitutes a
complete offence. Therefore, by changing Section 9(a)(v), the First Amendment has
amalgamated two separate offences into one. As a result, the original offence
contained in Section 9(a)(v) has now been rendered redundant. To further ensure
the futility of the said offence all of the evidentiary presumptions contained in
Section 14 of the NAB Ordinance sustaining the erstwhile offence under Section
9(a)(v) and the remaining offences in the NAB Ordinance have been omitted by
Section 10 of the First Amendment.
Further, by the insertion of Explanation II to Section 9(a)(v) of the NAB
Ordinance entries in bank statements have been removed from the scope of assets
whereas banking transactions can only be regarded as assets if there is evidence of
the creation of a corresponding asset through specific transactions. The source,
object and quantum of credits/receipts in the bank accounts can now no longer be
shown for proving the creation of assets. Nor can debit transfers from one account
to another be used to show accumulation of money for the creation of an asset. It
goes without saying that bank records are usually the most pivotal evidence in
financial crimes. However, by virtue of Explanation II limited resort can be made to
them. If accused persons cannot be held to account for owning or possessing assets
beyond their means, the natural corollary will be that public assets and wealth will
become irrecoverable which would encourage further corruption. This will have a
direct adverse effect on the peoples’ right to life and to public property because the
economic well-being of the State will be prejudiced.
The amended Section 9(a)(v) and the omission of Section 14(c) would treat
similarly placed persons differently because while elected holders of public office
are relieved from prosecution for the offence under Section 9(a)(v), persons in the
service of Pakistan will still have to go through the rigors of trial under the 1947
Act for the same offence. This would offend the equal treatment command of
Article 25 of the Constitution.
The phrase ‘through corrupt and dishonest means’ used in Section 9(a)(v) along
with its Explanation II is struck down from the NAB Ordinance from the date of
commencement of the First Amendment for being unworkable. Additionally,
Section 14 in its entirety is restored to the NAB Ordinance from the date of
commencement of the First Amendment. Sections 8 and 10 of the First Amendment
are declared invalid to this extent.
The amendments made in Section 9(a)(v) of the NAB Ordinance by Section 8 of
the First Amendment are upheld in their entirety as persons in the service of
Pakistan can be tried for the same offence under the 1947 Act. However, Section 10
of the First Amendment is struck down from the date of commencement of the First
Amendment and Section 14(a), (b) and (d) stand restored to the NAB Ordinance
because such presumptions do not exist in any other accountability law.
Section 14 of the First Amendment
Section 14 of the First Amendment has omitted Section 21(g) of the NAB
Ordinance, which dealt with International Cooperation Request for mutual legal
assistance. It is a common fact that many accused persons being tried under the
NAB Ordinance have stashed their wealth and assets abroad in tax havens under
fiduciary instruments. However, after the omission of the said provision the
admissibility of foreign public documents shall be governed by Article 89(5) of the
Qanun-e-Shahadat Order, 1984 (“1984 Order”). The process of admitting foreign
public documents under the 1984 Order is protracted and cumbersome because it
requires either the production of the original document or a copy which is certified
not only by the legal keeper of the document but also by the Embassy of Pakistan.
Further, the character of the document needs to be established in accordance with
the law of the foreign country. Additionally, foreign private documents would need
to be established through the procedure set out in Articles 17 and 79 of the 1984
Order which would require that two attesting witnesses from the foreign country
enter personal appearance for proving the execution of the foreign private
document. Such a process naturally entails time as the foreign evidence needs to
pass through red tape. It therefore defeats the purpose for which Section 21(g) was
inserted into the NAB Ordinance. By deleting Section 21(g) from the NAB
Ordinance, Section 14 of 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.
Section 21(g) is hereby 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 peoples right to access
justice and for protecting their public property from squander. Accordingly, Section
14 of the First Amendment is struck down for being illegal.
Section 14 of the Second Amendment
Section 14 of the Second Amendment has inserted two new provisos to Section
25(b) of the NAB Ordinance, which provision pertains to plea bargains entered into
by accused persons. Despite the benign purposes behind introducing the second
proviso to Section 25(b), the actual effect of it is that it nullifies Section 25(b) itself
which was inserted in the NAB Ordinance to facilitate early recovery of the illgotten wealth through settlement where practicable because it places no restrictions
on the accused from revoking the plea bargain entered into by him. Further, 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 exclusion of the Accountability Court by
the second proviso to Section 25(b) of the NAB Ordinance therefore undermines
the independence of the Judiciary and is violative of Article 175(3) of the
Constitution. Furthermore allowing an accused person to renege from his plea
bargain would be tantamount to conferring an unlawful benefit on him i.e., he
would escape the consequences (disqualification to contest elections or to hold
public office) stipulated in Section 15(a) of the NAB Ordinance.
The second proviso to Section 25(b) is struck down from the NAB Ordinance
from the date of commencement of the Second Amendment. As a result, Section 14
of the Second Amendment is declared to be void and of no legal effect to this
extent.
Supreme Court directed that all orders passed by the NAB and/or the
Accountability Courts placing reliance on the struck down 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 NAB and all
Accountability Courts shall 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 date of
present judgment which shall be proceeded with in accordance with law from the
same stage these were at when the same were disposed of/closed/returned.
Constitutional petition was allowed.
(e) Interpretation of statutes—
—-Proviso to a section—Scope—Whilst a proviso can qualify or create an
exception to the main section it cannot nullify the same.
Muhammad Anwar Kurd v. State 2011 SCMR 1560 ref.
Per Syed Mansoor Ali Shah, J; dissenting with Umar Ata Bandial, CJ. [Minority
view]
(f) Constitution of Pakistan—
—-Art. 184(3) & Part.II, Chapt. 1—Legislation—Judicial review—Scope—Courts
can judicially review the acts of the legislators if they offend the Constitution, in
particular the fundamental rights guaranteed by the Constitution—While examining
this conflict of rights and the legislation, the courts must consider that they are
dealing with a legislative document that represents multiple voices, myriad policy
issues and reflective of public ethos and interests, voiced through the chosen
representatives of the people; and remembering that undermining the legislature
undermines democracy—With this background, only if such a legislation is in
conflict and in violation of the fundamental rights or the express provisions of the
Constitution, can the courts interfere and overturn such a legislation.
(g) Constitution of Pakistan—
—-Art. 184(3)— Legislation— Judicial review— Scope— Judicial restraint,
doctrine of—Courts have formulated the doctrine of judicial restraint which urges
Judges considering constitutional questions to give deference to the views of the
elected branches and invalidate their actions only when constitutional limits have
clearly been violated—As the legislative acts of a legislature are the manifestation
of the will of the people exercised through their chosen representatives, the courts
tread carefully to judicially review them and strike them down only when their
constitutional invalidity is clearly established beyond any reasonable doubt—
Reasonable doubt is resolved in favour of the constitutional validity of the law
enacted by a competent legislature by giving a constitution-compliant interpretation
to the words that create such doubt.
Jurists Foundation v. Federal Government PLD 2020 SC 1 and LDA v. Imrana
Tiwana 2015 SCMR 1739 ref.
(h) National Accountability Ordinance (XVIII of 1999)—
—-Ss. 4, 5(n), 5(o), 9(a)(v), 14, 21(g) & 25(b)—National Accountability
(Amendment) Act (XI of 2022), Ss. 2, 8, 10 & 14—National Accountability
(Second Amendment) Act (XVI of 2022), Ss. 2, 3 & 14—Penal Code (XLV of
1860), S. 21—Prevention of Corruption Act (II of 1947), Ss. 2 & 5—Qanun-eShahadat (10 of 1984), Art.122—Constitution of Pakistan, Arts. 9, 14, 23, 24, 25,
175(3) & 184(3)—Constitutional petition filed before the Supreme Court
challenging amendments made to the National Accountability Ordinance, 1999
(“NAB Ordinance”) by the National Accountability (Amendment) Act, 2022 (“First
Amendment”) and the National Accountability (Second Amendment) Act, 2022
(“Second Amendment”) (collectively referred to as the “2022 Amendments”)—
Vires of the “2022 Amendments”—The 2022 Amendments in no way take away or
abridge any of the fundamental rights guaranteed by the Constitution to the people
of Pakistan—Even after the 2022 Amendments elected holders of public offices
(members of Parliament, Provincial Assemblies and Local Government Bodies,
etc.) are still triable under the Prevention of Corruption Act 1947 (‘PCA’) and the
Pakistan Penal Code 1860 (‘P.P.C.’)—Changes brought about by the 2022
Amendments relate to criminal law, criminal procedure and rules of evidence and
fall within the legislative competence of the Parliament and in no way take away or
abridge any of the fundamental rights—If Parliament can enact the NAB Ordinance
in the exercise of its ordinary legislative power, it can surely amend the same in the
exercise of the same legislative power—Detailed reasons given by His Lordship for
disagreeing with the majority view stated.
The Parliament has, through the impugned National Accountability
(Amendment) Act, 2022 (“First Amendment”) and the National Accountability
(Second Amendment) Act, 2022 (“Second Amendment”) (collectively referred to as
the “2022 Amendments”), merely changed the forums for investigation and trial of
the offences of corruption involving the amount or property less than Rs.500
million. After the amendment, the cases of alleged corruption against the holders of
public offices that involve the amount or property of value less than Rs.500 million
are to be investigated by the anti-corruption investigating agencies and tried by the
anti-corruption courts of the Federation and Provinces respectively, under the
Prevention of Corruption Act 1947 and the Pakistan Criminal Law Amendment Act
1958, instead of the National Accountability Ordinance, 1999 (“NAB Ordinance”).
This matter undoubtedly falls within the exclusive policy domain of the legislature,
not justiciable by the courts. This and other challenged amendments, which relate
to certain procedural matters, in no way take away or abridge any of the
fundamental rights guaranteed by the Constitution to the people of Pakistan.
The majority view in the present case is not correct as even after the challenged
amendments:
(i) the elected holders of public offices (members of Parliament, Provincial
Assemblies and Local Government Bodies, etc.) are still triable under the
Prevention of Corruption Act 1947 (‘PCA’) and the Pakistan Penal Code 1860
(‘P.P.C.’) 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
seriously misunderstood by the majority;
(ii) the challenged amendment of adding the threshold value of Rs.500 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 Rs.500 million.
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 exclusive domain of the legislature (Parliament), not of the courts. If a
legislature has the constitutional authority to pass a law with regard to a particular
subject, it is not for the courts to delve into and scrutinize the wisdom and policy
which led the legislature to pass that law; and
(iii) the said and other challenged amendments (law made by the Parliament) do
not take away or abridge any of the fundamental rights guaranteed under Articles 9,
14, 23, 24 and 25 of the Constitution. The majority view has assumed the right to
accountability of the elected holders of public offices through criminal prosecution
as included in the fundamental rights to life, dignity and property guaranteed by
Articles 9, 14 and 24 of the Constitution, without making any discussion for
establishing its close relationship of such an extent with those fundamental rights
that makes this right to be an integral part of them.
Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 distinguished.
The omission of Section 14 of the NAB Ordinance by the 2022 Amendments has
made no substantial effect in view of the provisions of Article 122 of the Qanun-eShahadat 1984. Clauses (a), (b) and (d) of the omitted Section 14 of the NAB
Ordinance relate to the intention of the accused other than that which the character
and circumstances of the act proved against him by the prosecution suggest. These
clauses are, therefore, merely descriptive instances of the applicability of Article
122 read with its illustration (a) of the Qanun-e-Shahadat. And clause (c) of the
omitted Section 14 of the NAB Ordinance that relates to possessing assets
disproportionate to known sources of income is the descriptive instance of the
applicability of Article 122 read with its illustration (b) of the Qanun-e-Shahadat.
Notwithstanding such an innocuous effect, the change in the rules of evidence
squarely falls within the scope of the legislative competence of the Parliament
under Article 142(b) of the Constitution and unless such change offends any of the
fundamental rights, it is not justiciable in courts.
Pir Mazharul Haq v. State PLD 2005 SC 63; Mansur-Ul-Haque v. Government of
Pakistan PLD 2008 SC 166; State v. Idrees Ghauri 2008 SCMR 1118; Qasim Shah
v. State 2009 SCMR 790; Rehmat v. State PLD 1977 SC 515 and Hashim Babar v.
State 2010 SCMR 1697 ref.
Similar is the position with the addition of words “through corrupt and dishonest
means” by the challenged amendments in Section 9(a)(v) of the NAB Ordinance: It
also has no substantial effect on the mode of proving the offence of unaccounted
assets possessed by a holder of public office beyond his known sources of income;
as when the prosecution succeeds in proving that the particular assets of the
accused are disproportionate to his known sources of income (legal means) and are
thus acquired through some corrupt and dishonest means, the burden of proving the
“fair and honest means” whereby the accused claims to have acquired the same,
being within his knowledge, are to be proved by him as per provisions of Article
122, read with its illustration (b), of the Qanun-e-Shahadat.
The majority view has also declared ultra vires the Constitution the addition of
Explanation II to Section 9(v) of the NAB Ordinance; the omission of clause (g) of
Section 21; and the addition of second proviso to Section 25(b). However in
declaring these amendments as ultra vires the Constitution, the majority view has
not explained how they infringe any of the fundamental rights or any other
provision of the Constitution, nor could the counsel for the petitioner point out in
his arguments any such infringement. These amendments being related to “criminal
law, criminal procedure and evidence” fall within the legislative competence of the
Parliament as per Article 142(b) of the Constitution and in no way take away or
abridge any of the fundamental rights in terms of Article 8(2) of the Constitution.
The mode of holding the 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 P.P.C., 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.
The counsel for the petitioner could not explain how the right to accountability
of the elected holders of public offices through criminal prosecution under the NAB
Ordinance is an integral part of the fundamental rights to life, dignity, property and
equality or how it partakes of the same basic nature and character as the said
fundamental rights so that the exercise of such right is in reality and substance
nothing but an instance of the exercise of these fundamental rights. Nor could he
establish that the “direct and inevitable effect” of the challenged amendments
constitutes an infringement of these fundamental rights. The “effect” of the
challenged amendments on these fundamental rights portrayed by him is so “remote
and uncertain” that if such effect is accepted as an infringement of the fundamental
rights then there would hardly be left any space and scope for Parliament to make
laws on any subject; as all laws enacted by Parliament would “ultimately” reach
any of the fundamental rights, particularly rights to life or property, in one way or
the other through such a long winding conjectural path of farfetched “in turn”
effects. Constitutional petition was dismissed.
Corruption in Hajj Arrangements’ case 2010 PLD 2011 SC 963 and Bank of
Punjab v. Haris Steel Industries PLD 2010 SC 1109 distinguished.
(i) Penal Code (XLV of 1860)—
—-S. 21—Public servant—Scope—Every officer remunerated by the fees or
commission for the performance of any public duty is a public servant under
Section 21, P.P.C., irrespective of the fact whether the fee is paid by the
Government or by any other public body or by an Act of Parliament under the
Constitution.
Henly v. Mayor of Lyme (1928) 5 Bing 91 and R v. Whittaker (1914) 3 KB 1283
ref.
(j) Penal Code (XLV of 1860)—
—-S. 21—Prevention of Corruption Act (II of 1947), Ss. 2 & 5—Public servant—
Scope—Member of Parliament—To fall within the scope of the definition of
“public servant” a person should be an officer; he should perform any public duty;
and he should be remunerated by fees or commission for the performance of that
public duty—Member of Parliament is “holder of an office” and is thus an “officer”
within the meaning and scope of this term used in clause ninth of Section 21,
P.P.C.—Person in his position as a member of Parliament does perform a “public
duty”—Furthermore a member of Parliament is, remunerated by fees (salary and
allowances) for the performance of public duties—Member of Parliament, thus,
fulfills all the three conditions to fall within the scope of the definition of “public
servant” provided in the second limb of the latter part of clause ninth of Section 21,
P.P.C., and is, therefore, triable as a “public servant” for the alleged commission of
an offence of corruption and corrupt practices (criminal misconduct) under the
Pakistan Penal Code, 1860 and the Prevention of Corruption Act, 1947.
McMillan v. Guest (1942) AC 561; Shorter Oxford English Dictionary, 6th ed.,
p. 1988; G.W. Railway Co. v. Bater [1920] 3 KB 266; G.W. Railway v. Bater
[1922] 2 AC 1; Kanta Kathuria v. Manakchand Surana AIR 1970 SC 694; American
Jurisprudence, 2nd ed. Vol. 63A, p. 667; Grahm Zellic, Bribery of Members of
Parliament and the Criminal Law, Public Law (1979) 31 at p. 37; L.K. Advani v.
C.B.I. 1997 Cri.LJ 2559; Anti Corruption Commission v. Shahidul Islam (6 SCOB
[2016] AD 74; R v. Boston [1923] HCA 59; Narsimha Rao v. State AIR 1998 SC
2120; The Members of Parliament (Salaries and Allowances) Act, 1974; R v.
Postmaster-General (1876) 1 QBD 663; National Embroidery Mills Ltd. v. Punjab
Employees’ Social Security Institution 1993 SCMR 1201; Accountant General,
Bihar v. N. Bakshi AIR 1962 SC 505; Khurshid Soap and Chemical Industries v.
Federation of Pakistan PLD 2020 SC 641; Abul Monsur v. State PLD 1961 Dacca
753; Mujibur Rahman v. State PLD 1964 Dacca 330; Emperor v. Sibnath Banerji
AIR 1945 PC 156 and Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1953
SC 394 ref.
(k) Constitution of Pakistan—
—-Art. 184(3)—Legislation—Judicial review—Scope—Courts cannot force the
legislature to act upon their recommendations nor can they strike down any law
competently enacted by the legislature which does not commensurate with their
recommendations.
(l) Constitution of Pakistan—
—-Art. 175(3)—Trichotomy of power, principle of—Scope—Constitution of
Pakistan is based on the principle of trichotomy of power in which legislature,
executive and judiciary have their separately delineated functions—Legislature is
assigned the function to legislate laws, the executive to execute laws and the
judiciary to interpret laws—None of these three organs are dependent upon the
other in the performance of its functions nor can one claim superiority over the
others—Each enjoys complete independence in their own sphere and is the master
in its own assigned field under the Constitution—Any one of these three organs
cannot usurp or interfere in the exercise of each other’s functions, nor can one
encroach upon the field of the others—This trichotomy of power is so important
that it is said to be a basic feature of the Constitution, a cornerstone of the
Constitution, a fundamental principle of the constitutional construct, and one of the
foundational principles of the Constitution.
Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Liaqat
Hussain v. Federation of Pakistan PLD 1999 SC 504; Registrar, SCP v. Wali
Muhammad 1997 SCMR 141; Mobashir Hassan v. Federation of Pakistan PLD
2010 SC 265; Government of KPK v. Saeed-Ul-Hassan 2021 SCMR 1376; Jurists
Foundation v. Federal Government PLD 2020 SC 1; Dossani Travels v. Travels
Shop PLD 2014 SC 1 and Mamukanjan Cotton Factory v. Province of Punjab PLD
1975 SC 50 ref.
(m) Legislation—
—-Legislative power of Parliament—Scope—Doctrines of exhaustion and functus
officio—Not applicable—What Parliament has done, Parliament can undo—
Legislative power of Parliament does not exhaust by enactment of any law nor does
Parliament become functus officio by making a law, on a particular subject—
Doctrines of exhaustion and functus officio are not applicable to legislative powers–
-Legislature that has made any law is competent to change, annul, re-frame or add
to that law—Even the legislature of today cannot enact a law, whereby the powers
of a future legislature or of its own to amend a law are curtailed.
M.P. High Court Bar Association v. Union of India AIR 2005 SC 4114; Khan
Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and LDA v. Imrana
Tiwana 2015 SCMR 1739 ref.
(n) Constitution of Pakistan—
—-Part.II, Chapt. 1—Fundamental rights, interpretation of—Progressive, liberal
and dynamic approach—Fundamental rights guaranteed in the Constitution, an
organic instrument, are not capable of precise or permanent definition delineating
their meaning and scope for all times to come—With the passage of time, changes
occur in the political, social and economic conditions of the society, which requires
re-evaluation of their meaning and scope in consonance with the changed
conditions—Therefore, keeping in view the prevailing socio-economic and
politico-cultural values and ideals of the society, the courts are to construe the
fundamental rights guaranteed in the Constitution with a progressive, liberal and
dynamic approach—But this does 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—
Progressive, liberal and dynamic approach in construing fundamental rights
guaranteed in the Constitution must be guided by an objective criterion, not by
subjective inclination.
Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.
(o) Constitution of Pakistan—
—-Part.II, Chapt. 1—Fundamental rights—New rights—Objective criterion for
recognizing new rights as fundamental rights—Objective criterion in such regard is
to see whether the claimed right is an integral part of a named fundamental right or
partakes of the same basic nature and character as the named fundamental right so
that the exercise of such right is in reality and substance nothing but an instance of
the exercise of the named fundamental right—Right is an integral part of a named
fundamental right which gives life and substance to the named fundamental right.
Maneka Gandhi v. Union of India AIR 1978 SC 597 and Griswold v.
Connecticut (1965) 381 US 479 ref.
(p) Constitution of Pakistan—
—-Art. 184(3)—Legislation—Judicial review—Scope—Locus standi of a
Parliamentarian to challenge the constitutional validity of an Act of Parliament—
Parliament is a constitutional body, but being comprised of the chosen
representatives of the people of Pakistan it attains the status of a prime
constitutional body—Any action made or decision taken by the majority of a
constitutional body is taken to be and treated as an action or decision of that body
as a whole comprising of all its members, not only of those who voted for that
action or decision—Any member of a constitutional body who was in the minority
in making that decision can not challenge the validity of that decision in court—
Principle that decisions taken by a majority of members in a constitutional body
(like a parliament or legislature) usually cannot be directly challenged in court by
those in the minority is rooted in the doctrine of parliamentary sovereignty and the
separation of powers—Democratic systems are often built on the principle of
majority rule; this ensures that decisions reflect the will of the majority while still
respecting the rights of the minority—Allowing minority members to easily
challenge majority decisions would undermine this fundamental democratic
principle.
(q) National Accountability Ordinance (XVIII of 1999)—
—-Ss. 9 & 10—Prevention of Corruption Act (II of 1947), Ss. 2 & 5—Judges of the
constitutional courts and Members of the Armed Forces—Accountable and fully
liable under the National Accountability Ordinance, 1999 and the Prevention of
Corruption Act, 1947, like any other public servant of Pakistan.
Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.
For Petitioner(s)/Applicant(s)
Khawaja Haris Ahmad, Senior Advocate Supreme Court and Dr. Yasir Aman
Khan, Advocate Supreme Court.
Assisted by:
Isaam Bin Haris, Ms. Zaynib Chaudhary, Muhammad Hashim Waqar, Advocates.
Barrister Faiza Asad, Advocate.
Muhammad Shoaib Ilyas, Advocate.
For Federation/Respondent No.1.
Muhammad Makhdoom Ali Khan, Senior Advocate Supreme Court.
Anis Muhammad Shahzad, Advocate-on-Record.
Assisted by:
Saad Muhammad Hashmi, Advocate.
Umair Muhammad Malik, Advocate and Kh. Aizaz Ahsan, Advocate.
Yawar Mukhtar, Advocate.
Kh. Azeem Armaghan, Advocate.
Waqar Umar Farooq, Advocate.
Ch. Aamir Rehman, Addl. AGP, Malik Javed Iqbal Wains, Addl. AGP and Raja
Shafqat Abbasi, DAG.
For NAB/Respondent No.02:
Mumtaz Yousf, Addl. Prosecutor General.
Muhammad Sattar Awan, Deputy Prosecutor General.
Qazi Babar Irshad, Special Prosecutor General.
Barrister Syeda Jugnu Kazmi, Special Prosecutor General.
Dates of hearing: 19th, 29th, July, 5th, 19th August, 1st September, 4th, 5th, 6th,
10th, 11th, 12th, 18th, 19th, 24th October, 8th, 9th, 10th, 14th, 15th, 16th, 17th,
November, 6th, 7th, 8th, 12th, 13th, 14th, December, 2022, 10th, 11th, 12th, 17th,
18th, 19th, January, 7th, 8th, 9th, 10th, 14th, 15th, 16th, 21st, 22nd, 23rd February,
14th, 15th, 16th, March, 16th, May, 18th, 29th, 30th, 31st August, 1st and 5th
September, 2023.
JUDGMENT
UMAR ATA BANDIAL, C.J.—
Surah Al-Anfal, Verse 27:
“O ye that believe! betray not the trust of Allah and the Messenger, nor
misappropriate knowingly things entrusted to you.”
(Translation by Yusuf Ali)
Through the present Constitution Petition No.21 of 2022 the
petitioner has challenged the amendments made to the National Accountability
Ordinance, 1999 (“NAB Ordinance”) by the National Accountability (Amendment)
Act, 2022 (“First Amendment”) and the National Accountability (Second
Amendment) Act, 2022 (“Second Amendment”) (collectively referred to as the
“2022 Amendments”).
Origins and Content of the Unamended NAB Ordinance
2. Before delving into the facts giving rise to the present petition it would be
appropriate to briefly set out the origins and history of the NAB Ordinance. The
NAB Ordinance was a successor of the Ehtesab Act, 1997 and was promulgated by
the then Chief Executive of Pakistan, General Pervez Musharraf, on 16.11.1999
with retrospective effect from 01.01.1985. The NAB Ordinance is a special law
enacted to ‘eradicate corruption and corrupt practices and hold accountable all those
persons accused of such practices.’ To achieve its purposes the NAB Ordinance:
i. Set up Special Courts for conducting trials of the offence of corruption and
corrupt practices [refer Sections 5(g) and 16 of the NAB Ordinance prior to
the 2022 Amendments];
ii. Defined the categories of holders of public office who are subject to the NAB
Ordinance. The two main categories are parliamentarians (“elected holders
of public office”) and ‘persons in the service of Pakistan’ [refer Section 5(m)
of the NAB Ordinance prior to the 2022 Amendments];
iii. Expanded the class of persons who could be investigated and prosecuted for
the offence of corruption and corrupt practices [refer Section 5(o) of the
NAB Ordinance prior to the 2022 Amendments];
iv. Set up the NAB for the purposes of conducting pre-trial inquiries and
investigations in relation to the offence of corruption and corrupt practices
and to prosecute the same [refer Section 6 of the NAB Ordinance prior to
the 2022 Amendments];
v. Retained certain categories of the offence of corruption and corrupt practices
from previous accountability laws whilst also adding certain new categories
such as ‘misuse of authority’ and ‘wilful default’ [refer Section 9 (a) (vi) and
(viii) of the NAB Ordinance prior to the 2022 Amendments];
vi. Declared the offence of corruption and corrupt practices non-bailable [refer
Section 9(b) of the NAB Ordinance prior to the 2022 Amendments];
vii. Retained certain evidentiary presumptions against accused persons whilst
also adding a new category of presumption for persons accused of misusing
their authority [refer Section 14 of the NAB Ordinance prior to the 2022
Amendments];
viii. Permitted the Chairman NAB or any authorised officer of the Federal
Government to seek mutual legal assistance from foreign States [refer
Section 21 of the NAB Ordinance prior to the 2022 Amendments]; and
ix. Introduced the concept of a plea bargain [refer Section 25(b) of the NAB
Ordinance prior to the 2022 Amendments].
3. The vires of the NAB Ordinance were challenged soon after its promulgation
but the Court in Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607)
upheld its provisions albeit with certain directions and observations. Since then
despite three elected governments coming into power the NAB Ordinance has not
been repealed and it remains the premier accountability law in the country.
Factual Background
4. With the above context we can now lay down the facts
relevant to the present petition. On 22.06.2022 the First Amendment to the NAB
Ordinance became an Act of Parliament. Its essential features are:
i. Its provisions have deemed effect from the date of commencement of the NAB
Ordinance i.e., 01.01.1985 [refer Section 1(2) of the First Amendment];
ii. It excludes the decisions, advice, reports, opinions tendered by and works,
functions, projects, schemes executed by holders of public office and public/
governmental bodies from the ambit of the NAB unless there is proof of the
holders of public office or persons acting on their behalf having received
any monetary or material benefit from the decisions, advice, reports,
opinions, works, functions, projects or schemes [refer Section 2 of the First
Amendment];
iii. It has defined ‘public at large’ to mean at least 100 persons [refer Section 3 of
the First Amendment];
iv. It has altered the ingredients of the offences listed in Section 9(a)(v), (vi) and
(ix) of the NAB Ordinance [refer Section 8 of the First Amendment];
v. It has given Accountability Courts the power to grant bail to accused persons
[refer Section 8 of the First Amendment];
vi. It has omitted Section 14 of the NAB Ordinance which allowed the
Accountability Court to draw various evidentiary presumptions against the
accused [refer Section 10 of the First Amendment];
vii. It has omitted Section 21(g) of the NAB Ordinance which allowed
evidentiary material transferred by a foreign Government to be receivable as
evidence in legal proceedings notwithstanding the provisions of the Qanune-Shahadat Order, 1984 [refer Section 14 of the First Amendment]; and
viii. It has reduced the period of custody of the accused for the purposes of
inquiry and investigation from 90 days to 14 days [refer Section 16 of the
First Amendment].
5. On 25.06.2022 the petitioner filed the titled Constitution
Petition with the prayer that the First Amendment be struck down (albeit with
the exception of a few beneficial changes) for violating the Fundamental Rights of
the people of Pakistan enshrined in Articles 9 (security of person), 14 (inviolability
of dignity of man), 19A (right to information), 24 (protection of property rights)
and 25 (equality of citizens) of the Constitution of the Islamic Republic of Pakistan,
1973 (“Constitution”).
6. The first hearing in the case took place on 19.07.2022. During the course of
the petitioner’s arguments the Second Amendment also became an Act of
Parliament on 12.08.2022. The significant features of this amendment are:
i. Its provisions have deemed effect from the date of commencement of the NAB
Ordinance i.e., 01.01.1985 [refer Section 1(2) of the Second Amendment];
ii. It has enlarged the category of holders of public office and public/
governmental bodies excluded from the jurisdiction of the NAB [refer
Section 2 of the Second Amendment];
iii. It has limited the pecuniary jurisdiction of the NAB to cases involving loss of
Rs.500 million or more thereby rendering the NAB incompetent to
investigate and prosecute offences of corruption and corrupt practices which
have caused a loss of less than Rs.500 million [refer Section 3 of the Second
Amendment]; and
iv. It has provided accused persons with the opportunity to renege from the plea
bargains entered into by them and approved by the Accountability Court if
they fail to make the complete payment as approved by the Accountability
Court [refer Section 14 of the Second Amendment].
The petitioner filed an application on 31.08.2022 for amending his Constitution
Petition to also challenge the Second Amendment on the touchstone of the
Fundamental Rights already raised in respect of the First Amendment. This
application was allowed by the Court on 01.09.2022 with the consent of the learned
counsel for the respondent Federation. Thereafter, the proceedings continued for
more than a year and comprised of 53 hearings in total. During this period of one
year two further amendments were passed in relation to the NAB Ordinance,
namely:
i. The National Accountability (Amendment) Act, 2023 which became an Act of
Parliament on 29.05.2023 (“2023 Act”). This Act has primarily amended
Section 4 of the NAB Ordinance to provide a transfer mechanism for
pending inquiries, investigations and references to the relevant agency,
authority, department, court, tribunal or forum [refer Section 2 of the 2023
Act]; and
ii. The National Accountability (Amendment) Ordinance, 2023 which was
promulgated on 03.07.2023 (“2023 Ordinance”) by the President. The main
feature of this Ordinance is that it has re-inserted the evidentiary
presumptions against the accused for certain categories of the offence of
corruption and corrupt practices [refer Section 2 of the 2023 Ordinance].
Although this Ordinance has retrospective effect from the date of
commencement of the NAB Ordinance the restoration of the presumptions
will have no effect on the references that have already been returned by the
Accountability Courts to the NAB due to the 2022 Amendments. The 2023
Ordinance has therefore brought about only a cosmetic change in the NAB
Ordinance and it does not rectify the deficiency created by the omission of
the presumptions by the First Amendment.
Although learned counsel for the petitioner filed his written submissions on the
amendments brought about in the NAB Ordinance by the 2023 Act, the primary
focus of the proceedings remained the 2022 Amendments and this judgment shall
also only examine the vires of the 2022 Amendments though mention may be made
of the 2023 Act and the 2023 Ordinance in passing.
7. It is also pertinent to mention here that as a result of the 2022 Amendments a
large number of references filed by the NAB in the Accountability Courts were
affected. The data, as provided by the Addl. Prosecutor General, NAB, is set out
below:
i. 386 references were returned by the Accountability Courts to NAB in 2022
whereas 212 references were returned in 2023. Therefore, a total of 598
references have been returned so far. Of these 35 references pertain to
elected holders of public office;
ii. The public money involved in the returned references is more than Rs. 150
billion;
iii. 327 of the 386 references were returned in 2022 due to the minimum
pecuniary jurisdiction of the NAB being increased to Rs.500 million under
the Second Amendment;
iv. Out of the 598 returned references only 54 have yet been transferred to other
courts for further action of which 17 have been transferred to the Custom
Court and 4 to the Banking Court. As a result, 544 references are with the
NAB in storage; and
v. 127 references remain with the Accountability Courts after the 2022
Amendments.
Comparative Table of the 2022 Amendments
8. Before we examine the contentions of the learned counsel for the parties, a
comparative table detailing the pivotal changes brought about in the content of the
NAB Ordinance by the 2022 Amendments is produced below:
NAB Ordinance Prior to the 2022
Amendments
2022 Amendments
4. Application: It extends to the whole
of Pakistan and shall apply to all
persons in Pakistan, all citizens of
Pakistan and persons who are or have
been in the service of Pakistan
wherever they may be, including areas
which are part of Federally and
Provincially Administered Tribal
Areas.
4. Application: (1) This Ordinance
extends to the whole of Pakistan and
shall apply to all persons, including
those persons who are or have been in
the service of Pakistan, except persons
and transactions specified in subsection
(2). (2) The provisions of this
Ordinance shall not be applicable to the
following persons or transactions,
namely:- (a) all matters pertaining to
Federal, Provincial or Local taxation,
other levies or imposts, including
refunds, or loss of exchequer pertaining
to taxation, transactions or amounts
duly covered by amnesty schemes of
Government of Pakistan; (b) decisions
of Federal or Provincial Cabinet, their
Committees or Sub-Committees,
Council of Common Interests (CCI),
National Economic Council (NEC),
National Finance Commission (NFC),
Executive Committee of the National
Economic Council (ECNEC), Central
Development Working Party (CDWP),
Provincial Development Working Party
(PDWP), Departmental Development
Working Party (DDWP), Board of
Directors of State Owned Enterprises
(SOEs), Board of Trustees/Directors of
all Statutory Bodies, the State Bank of
Pakistan and such other bodies except
where the holder of the public office
has received a monetary gain as a
result of such decision; (c) any person
or entity who, or transaction in relation
thereto, which are not directly or
indirectly connected with the holder of
a public office except offences falling
under clauses (ix), (x) and (xi) of
subsection (a) of section 9; (d)
procedural lapses in performance of
any public or governmental work or
function, project or scheme, unless
there is evidence to prove that a holder
of public office or any other person
acting on his behalf has been conferred
or has received any monetary or other
material benefit from that particular
public or governmental work or
function, whether directly or indirectly
on account of such procedural lapses,
which the said recipient was otherwise
not entitled to receive; (e) a decision
taken, an advice, report or opinion
rendered or given by a public office
holder or any other person in the
course of his duty, unless there is
sufficient evidence to show that the
holder of public office or any other
person acting on his behalf received or
gained any monetary or other material
benefit, from that decision, advice,
report or opinion, whether directly or
indirectly, which the said recipient was
otherwise not entitled to receive; (f) all
matters, which have been decided by,
or fall within the jurisdiction of a
regulatory body established under a
Federal or Provincial law; and (g) all
matters where the funds, property or
interest not involving or belonging to
the appropriate government, except for
the offences under clauses (ix), (x) or
(xi) of subsection (a) of section 9.
5. Definitions: (n) “Offence” means the
offences of corruption and corrupt
practices and other offences as defined
in this Ordinance and includes the
offences specified in the Schedule to
this Ordinance.
5. Definitions: (o) “Offence” means the
offences of corruption and corrupt
practices and other offences as defined
in this Ordinance of value not less than
five hundred million rupees and
includes the offences specified in the
Schedule to this Ordinance;
9. Corruption and Corrupt Practices:
(a) A holder of a public office, or any
other person, is said to commit or to
have committed the offence of
corruption and corrupt practices– .. (v)
if he or any of his dependents or
benamidars owns, possesses, or has
acquired right or title in any assets or
holds irrevocable power of attorney in
respect of any assets or pecuniary
resources disproportionate to his
known sources of income, which he
cannot reasonably account for or
maintains a standard of living beyond
that which is commensurate with his
sources of income;
9. Corruption and Corrupt Practices:
(a) A holder of a public office, or any
other person, is said to commit or to
have committed the offence of
corruption and corrupt practices— (v)
if he or any of his dependents or other
benamidars, through corrupt and
dishonest means, owns, possesses or
acquires rights or title in assets
substantially disproportionate to his
known sources of income which he
cannot reasonably account for.
Explanation I.- The valuation of
immovable property shall be reckoned
on the date of purchase either
according to the actual price shown in
the relevant title documents or the
applicable rates prescribed by District
Collector or the Federal Board of
Revenue whichever is higher. No
evidence contrary to the later shall be
admissible. Explanation II.- For the
purpose of calculation of movable
assets, the sum total of credit entries of
bank account shall not be treated as an
asset. Bank balance of an account on
the date of initiation of inquiry may be
treated as a movable asset. A banking
transaction shall not be treated as an
asset unless there is evidence of
creation of corresponding asset through
that transaction.
14. Presumption against accused
accepting illegal gratification: a.
Where in any trial of an offence under
clauses (i), (ii), (iii) and (iv) of
subsection (a) of section 9 it is proved
that an accused person has accepted or
obtained, or has agreed to accept or
attempted to obtain, for himself or for
any other person any gratification,
other than legal remuneration, or any
valuable thing, or any pecuniary
advantage from a person or any agent
of a person, for any favour shown or
promised to be shown by the accused,
it shall be presumed, unless the
Section 14 omitted.
contrary is proved, that he accepted or
obtained, or agreed to accept or
attempted to obtain, that gratification
or that valuable thing or pecuniary
advantage for himself or some other
person, as the case may be, as a motive
or a reward such as is specified in
sections 161 to 163 of the Pakistan
Penal Code, 1860, (Act XLV of 1860),
or, as the case may be, without
consideration, or for a consideration
which he believed to be inadequate. b.
Wherein any trial of an offence
punishable under section 165A of the
Pakistan Penal Code, 1860 (Act XLV
of 1860) it is proved that any
gratification, other than legal
remuneration or any valuable thing has
been given, or offered to be given, or
attempted to be given, by any accused
person, it shall be presumed, unless the
contrary is proved, that he gave or
offered to give, or attempted to give,
that gratification, or that valuable
thing, as the case may be, as a motive
or a reward such as is specified in
sections 161 to 163 of the said Code,
or, as the case may be without
consideration or for a consideration
which he believed to be inadequate. c.
In any trial, of an offence punishable
under clause (v) of subsection (a) of
section 9 of this Ordinance, the fact
that the accused person or any other
person on his behalf, is in possession,
for which the accused person cannot
satisfactorily account, of assets or
pecuniary resources disproportionate
to his known source of income, or that
such person has, at or about the time of
the commission of the, offence with
which he is charged, obtained an
accretion to his pecuniary resources or
property for which he cannot
satisfactorily account, the Court shall
presume, unless the contrary is proved,
that the accused person is guilty of the
offence of corruption and corrupt
practices and his conviction therefor
shall not be invalid by reason only that
it is based solely on such a
presumption. d. In any trial of an
offence under clauses (vi) and (vii) of
section 9 the burden of proof that he
used his authority, or issued any
directive, or authorized the issuance of
any policy or statutory rule or, order
(SRO), or made any grant or allowed
any concession, in the public interest,
fairly, justly, and for the advancement
of the purpose of the enactment under
which the authority was used, directive
or policy or rule or order was issued or
grant was made or concession was
allowed shall lie on the accused, and in
the absence of such proof the accused
shall be guilty of the offence, and his
conviction shall not be invalid by the
reason that it is based solely on such
presumption: Provided that the
prosecution shall first make out a
reasonable case against the accused
charged under clause (vi) or clause
(vii) of subsection (a) of section 9.
21. International Cooperation Request
for mutual legal assistance: The
Chairman NAB or any officer
authorized by the Federal Government
may request a Foreign State to do any
or all of the following acts in
accordance with the law of such State:-
– .. (g) Notwithstanding anything
contained in the Qanun-e-Shahadat
Order 1984 (P.O. 10 of 1984) or any
other law for the time being in force all
evidence, documents or any other
material transferred to Pakistan by a
Foreign Government shall be
receivable as evidence in legal
proceedings under this Ordinance;
Section 21(g) omitted.
25. Voluntary return and plea bargain:
(b) Where at any time after the
authorization of investigation, before
or after the commencement of the trial
or during the pendency of an appeal,
25. Voluntary return and plea bargain:
(b) Where at any time after the
authorization of investigation, before
or after the commencement of the trial
or during the pendency of an appeal,
the accused offers to return to the NAB
the assets or gains acquired or made by
him in the course, or as a consequence,
of any offence under this Ordinance,
the Chairman, NAB, may, in his
discretion, after taking into
consideration the facts and
circumstances of the case, accept the
offer on such terms and conditions as
he may consider necessary, and if the
accused agrees to return to the NAB
the amount determined by the
Chairman, NAB, the Chairman, NAB,
shall refer the case for the approval of
the Court, or as the case may be, the
Appellate Court and for the release of
the accused.
the accused offers to return to the NAB
the assets or gains acquired or made by
him in the course, or as a consequence,
of any offence under this Ordinance,
the Chairman, NAB, may, in his
discretion, after taking into
consideration the facts and
circumstances of the case, accept the
offer on such terms and conditions as
he may consider necessary, and if the
accused agrees to return to the NAB
the amount determined by the
Chairman, NAB, the Chairman, NAB,
shall refer the case for the approval of
the Court, or as the case may be, the
Appellate Court and for the release of
the accused: Provided that statement of
an accused entering into plea bargain
or voluntary return shall not prejudice
case of any other accused: Provided
further that in case of failure of
accused to make payment in
accordance with the plea bargain
agreement approved by the Court, the
agreement of plea bargain shall become
inoperative to the rights of the parties
immediately.
9. It may be noticed from the provisions produced above that the 2022
Amendments have indeed brought about a significant change in the legal position
under the NAB Ordinance. Whereas prior to the 2022 Amendments the NAB
Ordinance applied to all persons in Pakistan after the 2022 Amendments the scope
of NAB Ordinance has been significantly restricted with nearly all holders of
public office exempted from its application unless there is proof of any monetary or
material benefit being received by them or a person acting on their behalf.
However, even if the NAB manages to overcome the exceptions listed in the
amended Section 4 of the NAB Ordinance the jurisdictional hurdle of an accused
having caused a minimum loss of Rs.500 million or more would still need to be
crossed. If that is not done the accused will be ousted from the jurisdiction of the
NAB. Therefore, it is only when the requirements of Section 4 and Section 5(o) of
the NAB Ordinance (as altered by the 2022 Amendments) are satisfied can the
accused person be inquired/ investigated into by the NAB and be tried in the
Accountability Court.
10. However, by the addition of the new conditions in and explanations to
Section 9(a)(v) coupled with the omission of Section 21(g) that permitted the
admission of foreign evidentiary material in legal proceedings under the mutual
legal assistance regime set up by the United Nations Convention against
Corruption, the burden cast on the prosecution to establish that a holder of public
office has accumulated unaccounted domestic (or foreign) assets beyond his means
has been made formidable. Along with that the presumption noted in Section 14(c)
has also been deleted. The result of these amendments relating to proof of the
offence of accumulated assets beyond means will be that in the future few persons
will be prosecuted for such an offence by the NAB with still lesser convictions
under Section 9(a)(v). The above result is in addition to the effect that the 2022
Amendments envisage the return of pending inquiries, investigations and references
but do not provide any mechanism for then transferring them to the relevant
agency, authority, department, court, tribunal or forum. That procedure was
provided for the first time by the 2023 Act. However, the 2023 Act is applicable to
only those inquiries, investigations and references of which either the NAB or the
Accountability Court is seized. As noted above, there are hundreds of references
that have been returned by the Accountability Courts to the NAB pursuant to the
2022 Amendments and prior to the 2023 Act. These references returned in the
interregnum between the two amendments have gone into limbo, a fact affirmed by
the record supplied by the Additional Prosecutor General, NAB.
11. At this stage it would also be appropriate to note that the offence of
corruption and corrupt practice is an umbrella term used to describe different
categories of offences noted in Section 9(a) of the NAB Ordinance. The 2022
Amendments have changed three such categories, namely:
i. Assets beyond means [refer Section 9(a)(v) of the NAB Ordinance];
ii. Misuse of authority [refer Section 9(a)(vi) of the NAB Ordinance]; and
iii. Cheating [refer Section 9 (a) (ix) of the NAB Ordinance].
Additionally, Section 9(a)(vii) which criminalised the issuance of any directive,
policy, SRO or any other order which granted undue concession or benefit to the
holder of public office, his relative, associate, benamidar or any other person has
been omitted by the First Amendment. This judgment, however, shall only deal with
Section 9(a)(v) as that is the category of the offence of corruption and corrupt
practices which prima facie appears to have the widest implications of an adverse
nature on the Fundamental Rights of the people.
Arguments of Counsel
12. Both the learned counsel for the petitioner and the learned counsel for the
respondent Federation made extensive submissions on the maintainability and
merits of the petition. Their main contentions were:
A. Submissions by the Petitioner
i. The titled petition is maintainable under Article 184(3) of the Constitution as
the 2022 Amendments directly and adversely affect the Fundamental Rights
of the people of Pakistan i.e., Articles 9, 14, 19A, 24 and 25 and violate a
salient feature of the Constitution, namely, Parliamentary form of
Government blended with Islamic provisions;
ii. The provisions of the 2022 Amendments have effectively decriminalised the
offence of ‘corruption and corrupt practices’ thereby allowing the holders of
public office to retain their ill-gotten wealth whilst being exempted from
prosecution under the NAB Ordinance. The specific sections of the 2022
Amendments that decriminalise the offence of ‘corruption and corrupt
practices’ and exclude holders of public office from the province of the NAB
will be discussed later in the judgment; and
iii. The Court is empowered under Article 184(3) of the Constitution to either
strike down the 2022 Amendments or to direct the Federation to bring the
2022 Amendments in line with the requirements of the Constitution and
Fundamental Rights.
B. Submissions by the Respondent Federation
i. The instant Constitution Petition is not maintainable because it does not satisfy
the twin criteria laid down in Article 184(3) of the Constitution, the
petitioner lacks bona fide and locus standi to challenge the 2022
Amendments and the petition at the present stage is premature and based on
speculations and conjectures;
ii. No cogent reason has been given by the petitioner for not challenging the
2022 Amendments before the High Courts;
iii. The 2022 Amendments have been enacted after taking into consideration the
criticisms levelled against the NAB Ordinance, including by the Superior
Judiciary in its judgments/ orders; and
iv. An incorrect perception is being created that the 2022 Amendments have
decriminalised the offence of corruption and corrupt practices because there
exist other accountability foras in the country which can investigate,
prosecute and try accused persons for the offences which no longer fall
within the ambit of the NAB.
13. Apart from the above submissions, information was also sought from the
Additional Prosecutor General, NAB (produced above in para 7) regarding the
particulars of the references that have been returned to the NAB pursuant to the
2022 Amendments and their fate since. Written submissions were also provided by
the learned Attorney General for Pakistan who predominantly attacked the
maintainability of the present petition and endorsed the submissions of the learned
counsel for the respondent Federation in toto.
14. Having heard the learned counsel for all the parties and having examined the
available record the Court reserved its judgment on 05.09.2023. Our decision on
the present petition and the reasons for the same are set out hereinbelow.
Maintainability
15. The learned counsel for the respondent Federation strongly objected to the
maintainability of the titled petition for failing to satisfy the jurisdictional
requirements of Article 184(3) of the Constitution. It was his case that the petitioner
had failed to identify the precise Fundamental Right that had been violated by the
2022 Amendments. Additionally, he submitted that the petitioner lacked locus
standi and bona fides to challenge the 2022 Amendments because firstly, when he
was Prime Minister his government introduced many of the amendments that have
been consolidated by the 2022 Amendments and secondly, he had committed a
dereliction of duty by refusing to sit in the National Assembly and raise concerns
regarding the 2022 Amendments therein. Learned counsel also stated that the
dispute raised by the petition in respect of the 2022 Amendments is hypothetical as
there are no
facts before the Court as a result of which the Court will be considering and
deciding the question of vires of the 2022 Amendments in the abstract.
16. In response, learned counsel for the petitioner consistently maintained his
stance that the cumulative effect of the 2022 Amendments is that the offence of
corruption and corrupt practices committed by the holders of public office has been
decriminalised thereby violating the following Fundamental Rights of the people of
Pakistan:
“9. Security of person. No person shall be deprived of life or liberty save in
accordance with law.
14. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to
law, the privacy of home, shall be inviolable.
24. Protection of property rights. (1) No person shall be compulsorily deprived
of his property save in accordance with law.
25. Equality of citizens. (1) All citizens are equal before law and are entitled to
equal protection of law.”
Learned counsel for the petitioner further submitted that since the 2022
Amendments directly and adversely affect the Fundamental Rights of the public not
only are the conditions of Article 184(3) satisfied but also the objections of learned
counsel for the respondent Federation regarding bona fides and locus standi of the
petitioner lose force.
17. As the learned counsel for the respondent Federation
has primarily attacked the maintainability of the instant Constitution Petition, we
shall examine that question first. The Court has been conferred original jurisdiction
by Article 184(3) of the Constitution which reads:
“184. Original jurisdiction of Supreme Court.
…
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall,
if it considers that a question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred by Chapter I of
Part II is involved, have the power to make an order of the nature mentioned
in the said Article.”
By virtue of the afore-noted provision the Court can pass appropriate orders in
cases where the enforcement of a Fundamental Right(s) affecting the public at large
is involved. It is by now well-established in our jurisprudence that acts of
corruption and corrupt practices do infringe the Fundamental Rights of the public
and thus meet the test of Article 184(3). Reliance in this regard is placed on the
decisions of the Court in Suo Motu Case No.19 of 2016 (2017 SCMR 683);
Corruption in Hajj Arrangements in 2010 (PLD 2011 SC 963); Bank of Punjab v.
Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109). For reference relevant
passages from the cases of Corruption in Hajj Arrangements (supra) and Bank of
Punjab are produced below:
“Corruption in Hajj Arrangements
28. …However, when the cases of massive corruption, not only one, but so many
came for hearing, therefore, this Court in the exercise of its constitutional
jurisdiction had enforced fundamental rights of the citizens under Articles 4,
9, 14 and 25 of the Constitution… Undoubtedly, whenever the Court will
notice that there is corruption or corrupt practices, it would be very difficult
to compromise or digest it because the public money of the country cannot
be allowed to be looted by any one whatsoever status he may have.
Bank of Punjab
25. A perusal of the above quoted provision [Art. 184(3)] would demonstrate
that this Court was possessed of powers to make any order of the nature
mentioned in Article-199 of the Constitution, if, in the opinion of this Court,
a question of public importance relating to the enforcement of any of the
Fundamental Rights was involved in the matter[.] As has been mentioned in
the preceding parts of this order, what was at stake was not only a colossal
amount of money/property belonging to at least one million depositors i.e. a
large section of the public but what was reportedly at stake was also the very
existence of the Bank of Punjab which could have sunk on account of the
mega fraud in question and with which would have drowned not only the
said one million depositors but even others dealing with the said Bank. And
what had been sought from this Court was the protection and defence of the
said public property. It was thus not only the right of this Court but in fact
its onerous obligation to intervene to defend the said assault on the said
fundamental right to life and to property of the said public.”
(emphasis supplied)
18. Although learned counsel for the respondent Federation had no cavil with the
proposition that the Court can undertake proceedings in the original jurisdiction to
check corruption and corrupt practices committed by the holders of public office,
he stressed that unlike the cases previously decided by the Court the instant matter
pinpoints no specific act of corruption and/or corrupt practice. In fact, the entire
controversy raised by the petitioner is conjectural and academic. However, we are
not persuaded with this argument of learned counsel because as noted above in
paras 7 and 9-10, the 2022 Amendments have limited the NAB’s jurisdiction thus
excluding hundreds of pending references from trial before any forum and have
also made the proof of the offence of corruption and corrupt practices significantly
harder for references that satisfy the jurisdictional requirements of Section 4 and
Section 5(o) of the NAB Ordinance. We think it would be a legal absurdity to hold
that whilst the Court can take cognizance of individual acts of corruption and
corrupt practices under Article 184(3) it cannot do so when amendments have been
introduced in the accountability law i.e., the NAB Ordinance which exclude the
jurisdiction of the NAB to investigate and prosecute holders of public office in two
significant respects thereby ex-facie violating Articles 9, 14, 23 and 24 of the
Constitution by exonerating the holders of public office from their alleged acts of
corruption and corrupt practices by failing to provide a forum for their trial. The
2022 Amendments have therefore rendered the NAB toothless in accomplishing its
objective of ‘eradicat[ing] corruption and corrupt practices and hold[ing]
accountable all those persons accused of such practices’ and have left public
property belonging to the people of Pakistan vulnerable to waste and malfeasance
by the holders of public office. Such interference in the NAB’s jurisdiction and
powers most certainly affects the Fundamental Rights of the people at large as
noted by the Court in Progress Report of NAB in OGRA Case (2015 SCMR 1813):
“3. …We may emphasize that NAB has been created as a principal watchdog
against corruption in Pakistan. Corruption is itself rightly perceived as
eating into the very foundation and vitals of society. A corruption watchdog
which, therefore, does not function efficiently adversely affects inter alia,
the fundamental rights in Articles 14, 18, 19A, 23 and 24 of the
Constitution.”
(emphasis supplied)
Although the above observation was made by the Court in the context of the NAB’s
poor handling of the Oil and Gas Regulatory Authority Scam, we see no reason
why the same rationale cannot apply to the present matter where the legislature
through the 2022 Amendments has left the NAB ineffective in pursuing cases of
corruption and corrupt practices exposing the public property of the people to
misappropriation. We accordingly hold that the present Constitution Petition fulfils
the requirements of Article 184(3) of the Constitution and so is maintainable.
19. Be that as it may, the learned counsel for the respondent Federation raised
other preliminary objections to the petition as well. One of them being that the
petitioner does not possess either locus standi or bona fides to challenge the 2022
Amendments because he never questioned the 2022 Amendments in Parliament.
However, it is settled law that when the Court exercises jurisdiction under Article
184(3) of the Constitution it is not concerned with the antecedents or standing of
the person who has filed the petition because that person is merely acting as an
informant. Instead, the Court favours a substantive approach focusing more on the
content of the petition and whether the same crosses the threshold set out in Article
184(3). In this respect, we are fortified by the dicta of the Court in Muhammad
Yasin v. Federation of Pakistan (PLD 2012 SC 132):
“24. Before concluding our discussion on the issue of maintainability of this
petition we need to address the respondent’s submission that the petition has
been filed mala fide. We have found no lawful basis for this submission…
we have already held in the case titled Moulvi Iqbal Haider v. Capital
Development Authority and others (PLD 2006 SC 394 at 413) that the
contents of a petition under Article 184 (3) ibid will override concerns
arising on account of the conduct or antecedents of a petitioner…”
(emphasis supplied)
Likewise, the Court in Muhammad Ashraf Tiwana v. Pakistan (2013 SCMR 1159)
observed that:
“16. …The questions which the contents of this petition have brought to light
are, without doubt, matters of public importance and, as discussed above
relate directly to the enforcement of fundamental rights. Therefore, concerns
about the conduct or antecedents of the petitioner, if any, would stand
overridden by the contents of the petition. We may also emphasize that
exercise of jurisdiction under Article 184(3) ibid is not dependent on the
existence of a petitioner…”
(emphasis supplied)
20. We have already noted above that the instant petition satisfies the conditions
of Article 184(3), therefore, any apprehensions about the locus standi and bona
fides of the petitioner stand overridden. Insofar as the prior amendments passed
during the petitioner’s term as Prime Minister are concerned, the same were
promulgated through different Ordinances all of which have lapsed and are no
longer in the field. On the other hand, the 2022 Amendments have come into being
through Acts of Parliament and will remain on the statute book unless these are
repealed by Parliament in the future. Further, the amendments brought about in the
petitioner’s tenure did not contain analogous retrospectivity clauses, as exist in the
2022 Amendments, as a result of which the impact of the Ordinances on pending
references and past and closed transactions was limited.
21. The learned counsel for the respondent Federation also submitted that the
petitioner could have voiced his grievances against the 2022 Amendments in the
National Assembly as a member of the Opposition. Indeed, in the Court’s recent
judgment reported as Pakistan Peoples Party Parliamentarians v. Federation of
Pakistan (PLD 2022 SC 574) the necessity of a robust Opposition for a healthy
democracy was emphasised. However, the choice to remain in or walk out of
Parliament is a political decision made consciously by parliamentarians and their
political parties. The decision being political in nature the Court cannot and does
not sit in judgment over such matters. In any event, we have already held above
that locus standi is not an impediment when the Court is exercising original
jurisdiction. Therefore, to dismiss the instant petition solely on the ground that the
petitioner did not object to the 2022 Amendments in the National Assembly would
result in the Court deciding the question of maintainability on the basis of an
irrelevant consideration. More so when we have already held above that the 2022
Amendments do raise questions of public importance having a bearing on the
Fundamental Rights of the people of Pakistan.
22. Learned counsel for the respondent Federation lastly took exception with the
Court exercising its original jurisdiction in this matter instead of first letting the High
Courts decide the vires of the 2022 Amendments. He relied on Manzoor Elahi v.
Federation of Pakistan (PLD 1975 SC 66) and Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416) to reiterate that the Court’s original jurisdiction is to be
exercised sparingly and in deference to the High Courts jurisdiction under Article
199 of the Constitution. We are of the view that the Court’s judgment in Suo Motu
No.1 of 2023 dated 01.03.2023 has already dealt with this point. For reference, the
relevant passage is produced below:
“45. …Secondly, it appears that the petition under Article 184(3) [Manzoor Elahi v.
Federation of Pakistan] was the first of its kind before the Court under the
present Constitution… The jurisprudence as regards Article 184(3) was thus
quite literally in its infancy. In the half-century that has since passed, things
have of course changed enormously. The jurisprudence has matured, developed
and deepened and the Court has developed an altogether more muscular
approach in its understanding and application of Article 184(3). There has been
a sea change in how the Court views this constitutional power. Thus, e.g., the
observation of the learned Chief Justice, that “[t]his is an extraordinary power
which should be used with circumspection” (pg. 79) is, with respect, hardly
reflective of present times. Time does not stand still and nor does the
jurisprudence of the Court. In the common law tradition, the law is connected
to the past but not shackled by it.”
(emphasis supplied)
We find ourselves in agreement with the dicta cited above and endorse it. Indeed,
on an examination of the jurisprudence of the Court that has developed under
Article 184(3) of the Constitution it becomes clear that since the decisions in
Manzoor Elahi (supra) and Benazir Bhutto (supra) there have been numerous
instances where the Court has considered and decided the vires of legislation in its
original jurisdiction. Some of these cases are Mehram Ali v. Federation of Pakistan
(PLD 1998 SC 1445) which decided the vires of the Anti-Terrorism Act, 1997;
Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) which decided the
vires of the Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance,
1998; Asfandyar Wali (supra) which decided the vires of the NAB Ordinance;
Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) which decided the
vires of the National Reconciliation Ordinance, 2007; Baz Muhammad Kakar v.
Federation of Pakistan (PLD 2012 SC 923) which decided the vires of the
Contempt of Court Act, 2012; Zulfiqar Ahmed Bhutta v. Federation of Pakistan
(PLD 2018 SC 370) which decided the vires of Sections 203 and 232 of the
Elections Act, 2017.
23. In light of the above discussion, we find there to be no merit in the
objections raised by the learned counsel for the respondent Federation in respect of
the maintainability of the present Constitution Petition. As a result, his objections
are rejected and the titled petition is declared to be maintainable under Article
184(3) of the Constitution.
Impugned Provisions of the 2022 Amendments
24. In his Constitution Petition the petitioner has sought the nullification of
virtually the entire 2022 Amendments. However, on a careful examination of these
we are not convinced that the Fundamental Rights of the people of Pakistan are
violated by each and every section of the 2022 Amendments. Our considered view
at the outset about the provisions of the 2022 Amendments is that prima facie
judicial scrutiny of only Sections 2, 8, 10 and 14 of the First Amendment and
Sections 2, 3 and 14 of the Second Amendment is required. These provisions have
brought about the following modifications in the NAB Ordinance:
i. Section 3 of the Second Amendment has changed the definition of ‘offence’ in
Section 5(o) of the NAB Ordinance by inserting a minimum pecuniary
jurisdiction of Rs. 500 million below which value the NAB cannot take
cognizance of the offence of corruption and corrupt practices;
ii. Section 2 of the First Amendment by inserting subsections (a)-(f) into Section
4 of the NAB Ordinance and Section 2 of the Second Amendment by adding
subsection (g) in Section 4 of the NAB Ordinance has excluded certain
holders of public office from application of the NAB Ordinance and thereby
limited its effect;
iii. Section 8 of the First Amendment has inserted new ingredients in the offence
under Section 9 (a) (v) of the NAB Ordinance and added explanations
thereto. Section 9(a)(v) criminalizes the act of holding assets beyond means;
iv. Section 10 of the First Amendment has deleted Section 14 of the NAB
Ordinance which provides evidentiary presumptions that may be drawn
against the accused;
v. Section 14 of the First Amendment has deleted Section 21(g) of the NAB
Ordinance which permitted foreign evidence to be admissible in legal
proceedings under the mutual legal assistance regime; and
vi. Section 14 of the Second Amendment has added a second proviso 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 he has not paid the full amount of the bargain
settlement as approved by the Accountability Court.
The remaining provisions of the 2022 Amendments may be considered later in
an appropriate case.
Section 3 of the Second Amendment
25. As already noted above in para 6, Section 3 of the Second Amendment has
amended Section 5(o) of the NAB Ordinance to set the minimum pecuniary
jurisdiction of the NAB at Rs.500 million for inquiring into and investigating cases
involving the commission of the offence of corruption and corrupt practices. As a
result, offences that cause loss valued at less than Rs.500 million no longer come
within the ambit of the NAB. The apparent rationale for enhancing the pecuniary
jurisdiction is noted in the Statement of Objects and Reasons attached to the
Second Amendment. It reads:
“…Through the insertion of proposed amendments, the pecuniary jurisdiction of
the NAB has been fixed to take only action against mega scandals…”
(emphasis supplied)
The necessity to streamline the jurisdiction of the NAB and focus its efforts on
mega scandals i.e., those involving an amount of Rs.500 million or more was
explained by learned counsel for the respondent Federation by reference to the
jurisprudence of the Superior Courts. Reliance was placed on State v. Hanif Hyder
(2016 SCMR 2031) wherein the Court observed:
“2. During the hearing of these proceedings, we have noticed that the NAB in
exercise of powers under section 9 of the NAB Ordinance has started taking
cognizance of the petty matters and therefore, notice was issued to the D.G.
NAB to submit report in regard to the enquiries and or investigations, which
the NAB has undertaken in respect of the amounts involv[ing] less than 100
Million and References, if any, filed which involved amount less than 100
million. A list has been provided. It is evident from this list that prima facie
the enquiries and investigations undertaken by the NAB are not of mega
scandals and apparently petty matters have been enquired into on the
complaints. This is not the wisdom behind legislation of NAB Ordinance.
The NAB Ordinance was primarily legislated to counter mega scandals and
book the persons who are involved in mega scandals of corruption and
corrupt practices.”
(emphasis supplied)
A decision by the Division Bench of the Sindh High Court reported as Amjad
Hussain v. National Accountability Bureau (2017 YLR 1) was also referred:
“11. Learned PGA NAB on instructions from the Chairman NAB made written
as well as oral submissions in order to assist the Court. He submitted that
NAB was aware of this issue of pecuniary jurisdiction and in this respect
had passed an SOP in respect of the monetary value of cases which NAB
would pursue which is set out below for ease of reference.
“Priority for Cognizance of Cases:
…
iii. Cases of former/sitting legislators of National Assembly, Senate and
Provincial Assemblies (including ministers/advisers etc.) and elected
representatives of local bodies, where amount involved is more than Rs. 100
million.
iv. Cases involving interest of members of public at large where the numbers of
defrauded person are more than 50 persons and amount involved is not less
than Rs. 100 million.
v. Cases against public servants, whether serving or retired, Bankers,
Businessmen and Contractors where amount involved is more than Rs. 100
million.
…
40. …taking into account the above discussion on the pecuniary jurisdiction of
NAB including NAB making the best use of its human resources,
equipment, office space etc., and budget limitations we hereby endorse by
way of judicial order the NAB’s SOP for dealing with pecuniary jurisdiction
which is set out at para 11 of this order… as we consider the figure of Rs.
100 M to be significantly large to justify the intervention of the NAB being
the premier anti corruption body in the Country…”
(emphasis supplied)
The above dictum of the Sindh High Court was endorsed by the Islamabad High
Court in Iftikhar Ali Haideri v. National Accountability Bureau (2019 YLR 255).
26. It becomes clear from the pronouncements of the Superior Courts quoted
above that the principal focus of the NAB is to mainly prosecute mega scandals.
But whilst the judgments of the Superior Courts indicate that the minimum
pecuniary threshold of NAB should be Rs. 100 million (except in limited
circumstances where offences less than Rs. 100 million cannot be prosecuted by
any other accountability agency), Section 3 of the Second Amendment has
increased this minimum threshold to Rs.500 million. No cogent argument was put
forward by learned counsel for the respondent Federation as to why Parliament has
fixed a higher amount of Rs.500 million 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 Rs. 100 million as mega scandals.
27. It is accepted that Parliament is empowered to legislate freely within its
legislative competence laid down by the Constitution. However, it is also a settled
principle of our constitutional dispensation that the three organs of the State i.e.,
the Legislature, the Executive and the Judiciary perform distinct functions and that
one organ of the State cannot encroach into the jurisdiction of another organ.
Reliance is placed on the case of Mobashir Hassan (supra):
“34. … It is also to be borne in mind that Constitution envisages the trichotomy
of powers amongst three organs of the State, namely the legislature,
executive and the judiciary. The legislature is assigned the task of law
making, the executive to execute such law and the judiciary to interpret the
laws. None of the organs of the State can encroach upon the field of the
others…”
(emphasis supplied)
Nonetheless, 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 Rs.500 million Parliament has effectively absolved them from
any liability for their acts. This is a function which under the Constitution only the
Judiciary can perform (with the exception of the President who has been conferred
the power to grant a pardon under Article 45 of the Constitution). A similar view
was also taken by the Court in Mobashir Hassan (supra) when it was examining the
vires of Section 7 of the National Reconciliation Ordinance, 2007 under which
pending investigations and proceedings initiated by the NAB against holders of
public office were withdrawn and terminated with immediate effect:
“119. So far as withdrawal from the cases inside or outside the country, as per
Section 33[A] of the NAO, 1999, inserted through Section 7 of the NRO,
2007, is concerned, it would mean that the ‘holders of public office’ have
been absolved from the charge of corruption and corrupt practices,
therefore, by adopting such procedure, the legislative authority had
transgressed its jurisdiction, because such powers are only available to the
judiciary and the Constitution provides guarantee to secure the
independence of the judiciary…”
(emphasis supplied)
28. Learned counsel for the respondent Federation attempted to justify this
encroachment into the jurisdiction of the Judiciary by submitting that merely
because the minimum pecuniary threshold of the NAB has been increased does not
mean that holders of public office stand absolved. That other accountability fora
exist in the country where the trials of the accused holders of public office who
have been removed from the jurisdiction of the NAB can be held. The Court having
regard to the fact, as noted above in para 2, that holders of public office under the
NAB Ordinance fall into two categories i.e., elected holders of public office and
persons in the service of Pakistan, posed the following query to learned counsel for
the respondent Federation ‘if the Accountability Court were to send/transfer a
Reference against a parliamentarian [elected holders of public office] for lack of its
jurisdiction, then which would be the competent transferee court to adjudicate the
Reference and under which law?’ In his written response, the learned counsel
referred to the provisions of Prevention of Corruption Act, 1947 (“1947 Act”);
Pakistan Penal Code, 1860 (“P.P.C.”); Income Tax Ordinance, 2001; and AntiMoney Laundering Act, 2010. For present purposes the two relevant laws are the
1947 Act and the P.P.C.. However, on a careful examination of these legislations it
becomes clear that the two are applicable only to public servants. Public servant is
defined in the P.P.C. in Section 21 as follows:
“21. “Public servant”.—The words “public servant” denote a person falling
under any of the descriptions hereinafter following, namely:-
Second.- Every Commissioned Officer in the Military, Naval or Air Forces of
Pakistan while serving under the Federal Government or any Provincial
Government;
Third.- Every Judge;
Fourth.- Every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate,
or keep any document, or to take charge or dispose of any property, or to
execute any judicial process, or to administer any oath, or to interpret, or to
preserve order in the Court; and every person specially authorized by a
Court of Justice to perform any of such duties;
Fifth.- Every juryman, assessor, or member of a panchayat assisting a Court of
Justice or public servant;
Sixth.- Every arbitrator or other person to whom any cause or matter has been
referred for decision or report by any Court of Justice, or by any other
competent public authority;
Seventh.- Every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
Eighth.- Every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to
justice, or to protect the public health, safety or convenience;
Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or
expend any property on behalf of the Government, or to make any survey,
assessment or contract on behalf of the Government, or to execute any
revenue-process, or to investigate, or to report, on any matter affecting the
pecuniary interests of the Government, or to make, authenticate or keep any
document relating to the pecuniary interests of the Government, or to
prevent the infraction of any law for the protection of the pecuniary interests
of the Government, and every officer in the service or pay of the
Government or remunerated by fees or commission for the performance of
any public duty;
Tenth.- Every officer whose duty it is, as such officer, to take, receive, keep or
expend any property, to make any survey or assessment or to levy any rate
or tax for any secular common purpose of any village, town or district, or to
make, authenticate or keep any document for the ascertaining of the rights
of the people of any village, town or district;
Eleventh.- Every person who holds any office in virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or to
conduct an election or part of an election.”
(emphasis supplied)
Section 2 of the 1947 Act also relies on Section 21 of the P.P.C. to define public
servant. Therefore, in both laws the term ‘public servant’ has an identical meaning.
29. One example of public servants is given in Article 260 of the Constitution:
“260. Definitions. (1) In the Constitution, unless the context otherwise requires,
the following expressions have the meaning hereby respectively assigned to
them, that is to say,-
…
“service of Pakistan” means any service, post or office in connection with the
affairs of the Federation or of a Province, and includes an All-Pakistan
Service, service in the Armed Forces and any other service declared to be a
service of Pakistan by or under Act of [Majlis-e-Shoora (Parliament)] or of a
Provincial Assembly, but does not include service as… member of a House
or a Provincial Assembly;”
(emphasis supplied)
It may be noticed that under the Constitution persons in the service of Pakistan are
those who are holding posts in connection with the affairs of the Federation or
Province. As a result, such persons are either dealing with the property of the
Federal/ Provincial Government or with the pecuniary interests of the Federal/
Provincial Government. They, therefore, come within the definition of public
servant set out in the P.P.C. and adopted by the 1947 Act and so can be prosecuted
under these laws for the offence of corruption and corrupt practices. However,
elected holders of public office do not qualify as public servants under the guise of
being in the service of Pakistan because Article 260 of the Constitution specifically
excludes them from such service. Further, although no authoritative pronouncement
has been delivered in this respect by the Superior Courts of Pakistan, the Indian
Supreme Court in R.S. Nayak v. A.R. Antulay (AIR 1984 SC 684) has categorically
held that members of the Legislative Assembly (equivalent to our elected holders of
public office) are not public servants within the meaning of Section 21 of the Indian
Penal Code, 1860 (which is similar to Section 21 of the P.P.C.).
1 Further the
Bangladesh Supreme Court in Zakir Hossain Sarkar v. State [70 DLR (2018) 203]
has noted that a Member of Parliament (equivalent to our elected holders of public
office) is not a public servant because he is neither appointed by
the Government nor paid by it and he does not discharge his constitutional duties of
law-making in accordance with the rules and regulations made by the Executive
(para 23 of that judgment). The result is that contrary to what learned counsel for
the respondent Federation has submitted elected holders of public office are not
triable either under the 1947 Act or the P.P.C. for the offence of corruption and
corrupt practices.
30. This legal situation also explains why the Holders of Representative Offices
(Prevention of Misconduct) Act, 1976 (“1976 Act”) was enacted and Holders of
Representative Offices (Punishment for Misconduct) Order, 1977 (“1977 Order”)
was promulgated. Both these laws applied only to holders of representative office
i.e., elected holders of public office and subjected them to prosecution for offences
similar to those prescribed in the NAB Ordinance. If the submission of learned
counsel for the respondent Federation is correct that elected holders of public office
can be tried under the 1947 Act and the P.P.C. then there would have been no need
to pass the 1976 Act or the 1977 Order since both the 1947 Act and the P.P.C.
precede these laws. Ultimately, the 1976 Act was repealed by the Parliament and
Provincial Assemblies (Disqualification for Membership) (Amendment) Ordinance,
1990 whereas the 1977 Order was repealed by the Ehtesab Act, 1997. As noted
above in para 2, the Ehtesab Act, 1997 was the predecessor of the NAB Ordinance
and the latter repealed the former. This chain of legislative events shows that in
1976 Parliament became aware of the vacuum in the law whereby persons in the
service of Pakistan could be held to account for their corruption and corrupt
practices but elected holders of public office could not. Therefore, Parliament
passed the 1976 Act. The said Act was then succeeded by multiple legislations
which had the same object i.e., accountability of elected holders of public office
with the NAB Ordinance being the latest and the most comprehensive effort so far
to accomplish this objective.
31. By amending Section 5(o) of the NAB Ordinance to raise the minimum
pecuniary threshold of the NAB to Rs.500 million, Section 3 of the Second
Amendment has undone the legislative efforts beginning in 1976 to bring elected
holders of public office within the ambit of accountability laws because by virtue of
Section 3 elected holders of public office have been granted both retrospective and
prospective exemption from accountability laws. Once excluded from the
jurisdiction of the NAB no other accountability fora can take cognizance 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 immunity also
negates Article 62(1)(f) of the Constitution which mandates that only ‘sagacious,
righteous, non -profligate, honest and ameen’ persons enter Parliament. It also
offends the equal treatment command of Article 25 of the Constitution as
differential treatment is being meted out to persons in the service of Pakistan than
to elected holders of public office. This is because persons in the service of
Pakistan can still be prosecuted for the offence of corruption and corrupt practices
under the 1947 Act as they fall within the definition of public servants (refer para
29 above). The 1947 Act shares some of the essential features of the NAB
Ordinance, namely, it provides for the prosecution of public servants who have
accumulated assets beyond means [refer Section 5(1)(e) of the 1947 Act] and it
permits the drawing of an evidentiary presumption against public servants who
cannot account for their disproportionate pecuniary resources or property [refer
Section 5(3) of the 1947 Act]. Consequently, if Section 3 of the Second Amendment
is allowed to remain on the statute book there will be an anomalous situation in that
elected holders of public office will be exempted from accountability under the
amended and much relaxed requirements of the NAB Ordinance even though
they ‘while acting as trustees and the chosen representatives of the people, take
decisions which are often of grave consequence for the protection of the economic,
political and over-all national interests of the people of Pakistan. In other words,
theirs is a fiduciary duty of the highest order’ [ref: Mehmood Akhtar Naqvi v.
Federation of Pakistan (PLD 2012 SC 1089) at para 6 of Justice Jawwad S.
Khawaja’s concurring note] whilst the persons in the service of Pakistan will
have to undergo the rigours of accountability laws without exception. Such a
situation cannot be countenanced by either the Constitution or the law.
32. In this regard, we must also note that the learned counsel for the respondent
Federation filed his concise statement on 12.09.2023 wherein he has attached the
decision/ guideline of the Chairman NAB dated 08.08.2023 in respect of returned
references. The decision/ guideline reads:
“Therefore, a policy/decision has been made by the competent authority that all
References which have been returned to NAB shall now be placed before
the Accountability Courts by filing an application pleading this amendment
as per case law laid down in the judgment Adam Amin Chaudhry v. NAB in
W.P. No.3787/2022 and requesting that the Reference be revived and reexamined, the viewpoint of the NAB be solicited and thereafter it be
forwarded in terms of section 4(4)(d) of the National Accountability
(Amendment) Act, 2023 to the appropriate forum.”
(emphasis supplied)
We have already noted above in para 6 that the 2023 Act has provided a mechanism
for transferring pending inquiries, investigations and references to the relevant
agency, authority, department, court, tribunal or forum if the NAB or
Accountability Courts are seized of these matters. But returned references can by
no stretch of the imagination be considered as pending before the Accountability
Courts. Therefore, the above decision/ guideline issued by Chairman NAB a year
after the
First Amendment to seek the revival of the 544 references returned to the NAB that
are lying in storage to have them forwarded to the appropriate forum cannot vest
jurisdiction in the Accountability Courts to reopen cases of which it is not seized.
In any event, the decision/ guideline still does not resolve the pivotal issue i.e., that
there is neither an accountability law other than the NAB Ordinance and
an investigating authority other than the NAB nor any accountability forum other
than the Accountability Court where the acts of corruption and corrupt practices
committed by elected holders of public office can be investigated and prosecuted.
The decision/ guideline may therefore prove effective only in cases of corruption
and corrupt practices where the accused are persons in the service of Pakistan.
Consequently, the decision/ guideline issued by Chairman NAB has no bearing on
the vires of Section 3 of the Second Amendment which is unconstitutional on
account of absolving persons accused of the offence of corruption and corrupt
practices without a judicial verdict which amounts to legislative judgment [refer
Province of Punjab v. National Industrial Cooperative Credit Corporation (2000
SCMR 567) at para 8].
Declaration on Section 3 of the Second Amendment
A. Elected Holders of Public Office
i. On account of our analysis noted above in paras 27- 32, Section 3 of the
Second Amendment is declared to be ultra vires the Constitution and of no
legal effect from the date of commencement of the Second Amendment.
B. Persons in the Service of Pakistan
ii. The cases of persons in the service of Pakistan can be categorised under two
headings, namely, offences which are common to both the 1947 Act and the
NAB Ordinance and offences which are unique to the NAB Ordinance.
iii. The offences which are common to the 1947 Act and the NAB Ordinance are
those listed in Section 9(a)(i)-(v) of the NAB Ordinance whereas the
offences in 9 (a) (vi)- (xii) are distinct to the NAB Ordinance.
iv. Since persons in the service of Pakistan can be tried for offences contained in
Section 9(a)(i)-(v) of the NAB Ordinance under the 1947 Act the bar of
Rs.500 million shall continue for such offences. To this extent Section 3 of
the Second Amendment is declared to be intra vires the Constitution.
v. However, on account of the fact that persons in the service of Pakistan cannot
be tried for the offences noted in Section 9(a)(vi)-(xii) under the 1947 Act or
any other accountability law the bar of Rs.500 million will not apply to them
for such offences. Section 3 of the Second Amendment is therefore declared
to be void and without legal effect for these offences for discharging the
accused without trial which is tantamount to legislative judgment and is held
to be so from the date of commencement of the Second Amendment.
Section 2 of the 2022 Amendments
33. Section 2 of the 2022 Amendments has altered Section 4 of the NAB
Ordinance. For reference Section 4, as amended by the 2022 Amendments, is
produced below:
“4. Application: (1) This Ordinance extends to the whole of Pakistan and shall
apply to all persons, including those persons who are or have been in the
service of Pakistan, except persons and transactions specified in subsection
(2).
(2) The provisions of this Ordinance shall not be applicable to the following
persons or transactions, namely:-
(a) all matters pertaining to Federal, Provincial or Local taxation, other levies or
imposts, including refunds, or loss of exchequer pertaining to taxation,
transactions or amounts duly covered by amnesty schemes of Government
of Pakistan;
(b) decisions of Federal or Provincial Cabinet, their Committees or SubCommittees, Council of Common Interests (CCI), National Economic
Council (NEC), National Finance Commission (NFC), Executive Committee
of the National Economic Council (ECNEC), Central Development Working
Party (CDWP), Provincial Development Working Party (PDWP),
Departmental Development Working Party (DDWP), Board of Directors of
State Owned Enterprises (SOEs), Board of Trustees/Directors of all
Statutory Bodies, the State Bank of Pakistan and such other bodies except
where the holder of the public office has received a monetary gain as a
result of such decision;
(c) any person or entity who, or transaction in relation thereto, which are not
directly or indirectly connected with the holder of a public office except
offences falling under clauses (ix), (x) and (xi) of subsection (a) of section
9;
(d) procedural lapses in performance of any public or governmental work or
function, project or scheme, unless there is evidence to prove that a holder
of public office or any other person acting on his behalf has been conferred
or has received any monetary or other material benefit from that particular
public or governmental work or function, whether directly or indirectly on
account of such procedural lapses, which the said recipient was otherwise
not entitled to receive;
(e) a decision taken, an advice, report or opinion rendered or given by a public
office holder or any other person in the course of his duty, unless there is
sufficient evidence to show that the holder of public office or any other
person acting on his behalf received or gained any monetary or other
material benefit, from that decision, advice, report or opinion, whether
directly or indirectly, which the said recipient was otherwise not entitled to
receive;
(f) all matters, which have been decided by, or fall within the jurisdiction of a
regulatory body established under a Federal or Provincial law; and
(g) all matters where the funds, property or interest not involving or belonging to
the appropriate government, except for the offences under clause (ix), (x) or
(xi) of subsection (a) of section 9.”
Prior to the 2022 Amendments Section 4 of the NAB Ordinance read:
“4. Application: It extends to the whole of Pakistan and shall apply to all persons
in Pakistan, all citizens of Pakistan and persons who are or have been in the
service of Pakistan wherever they may be, including areas which are part of
Federally and Provincially Administered Tribal Areas.”
34. From the comparison of the unamended and amended versions of Section 4 it
becomes plain that exceptions have been created for the decisions, advice, reports,
opinions of and works, functions, projects, schemes undertaken by holders of
public office and public/ governmental bodies unless there is evidence of the holder
of public officer or a person acting on his behalf having received monetary or other
material benefit. Such exceptions are novel not only to the NAB Ordinance
but also other accountability laws such as the 1947 Act. The rationale behind
introducing these exceptions in the NAB Ordinance is explained in the Statement of
Objects and Reasons attached to the First Amendment:
“Currently National Accountability Bureau (NAB) is dealing with a large
number of inquiries and investigation in addition to handling mega
corruption cases. Under the existing regime a number of inquiries have been
initiated against the holders of Public Office and government servants on
account of procedural lapses where no actual corruption is involved. This
has enhanced NAB’s burden and had an adverse impact on the workings of
the Federal Government. Additionally, NAB has also assumed parallel
jurisdiction and is inquiring into matters pertaining to taxation, imposition
of levies etc., and therefore interfering in the domain of tax regulatory
bodies. As such, a number of amendments have been proposed to redefine
the operational domain of NAB.”
The Court appreciates the efforts of Parliament to address and rectify what has long
been regarded unguided discretion of the NAB authorities. The Court as far back in
Asfandyar Wali (supra) observed in relation to the NAB Ordinance that:
“228. …To protect decision making level officers and the officers conducting
inquiry/ investigation from any threats, appropriate measures must be taken
to relieve them of the anxiety from the likelihood of harassment for taking
honest decisions.
229. Viewed in the above context, although shifting of burden of proof on an
accused in terms of Section 9 (a) (vi) (vii) read with Section 14(d) may not
be bad in law in its present form, but would certainly be counter productive
in relation to the principle of good governance. If decision making level
officials responsible for issuing orders, SROs etc. are not protected for
performing their official acts in good faith, the public servants and all such
officers at the level of decision making would be reluctant to take decisions
and/or avoid or prolong the same on one pretext or another which would
ultimately lead to paralysis of State-machinery. Such a course cannot be
countenanced by this Court.”
(emphasis supplied)
35. Clearly then Section 2 of the 2022 Amendments is an attempt by Parliament
to rein in the unguided powers of the NAB and to protect the bureaucracy from
unnecessary harassment. However, the exceptions granted by Section 2 operate as
an en-masse exemption for holders of public office from facing accountability. The
freshly inserted condition that the NAB shall provide evidence of monetary or other
material benefit received by the holder of public office or a person acting on his
behalf to overcome the exceptions listed in Section 2 of the 2022 Amendments
cannot be satisfied in the references already pending before the Accountability
Courts. Therefore, where such condition will not be met by the NAB the result will
be (and in fact has been) that references will be returned. In this regard, our
analysis set out above in paras 27-32 being highly relevant is adopted because
Section 2 of the 2022 Amendments affects the same Fundamental Rights i.e.,
Articles 9, 14, 23, 24 and raises the same problems in terms of the accountability of
elected holders of public office as Section 3 of the Second Amendment, namely,
that whilst persons in the service of Pakistan may still be investigated and
prosecuted under the 1947 Act for the offences listed in Section 9(a)(i)-(v) of the
NAB Ordinance, elected holders of public office will not be amenable to the
jurisdiction of any other accountability fora for the offence of corruption and
corrupt practices.
Declaration on Section 2 of the 2022 Amendments
A. Elected Holders of Public Office
i. For suffering from the same defects as noted above in paras 27-32, Section 2
of the 2022 Amendments is also declared to be void from the date of
commencement of the 2022 Amendments.
B. Persons in the Service of Pakistan
ii. Section 2 of the 2022 Amendments insofar as these pertain to the offences set
out in Section 9(a)(i)-(v) of the NAB Ordinance are declared to be intra
vires the Constitution because persons in the service of Pakistan can be
prosecuted for these offences under the 1947 Act.
iii. However, Section 2 is ultra vires the Constitution from the date of
commencement of the 2022 Amendments for the offences listed in Section
9(a)(vi)-(xii) because persons in the service of Pakistan cannot be tried for
such offences under the 1947 Act or any other accountability law.
Sections 8 and 10 of the First Amendment
36. Section 8 of the First Amendment has significantly altered Section 9 of the
NAB Ordinance which lays down various categories of the offence of corruption
and corrupt practices. For present purposes, the changes brought about in Section
9(a)(v) of the NAB Ordinance are relevant. The Section as it existed prior to and
after the First Amendment is produced below:
“Prior to the First Amendment
9. Corruption and Corrupt Practices: (a) A holder of a public office, or any other
person, is said to commit or to have committed the offence of corruption and
corrupt practices-
…
(v) if he or any of his dependents or benamidars owns, possesses, or has
acquired right or title in any assets or holds irrevocable power of attorney in
respect of any assets or pecuniary resources disproportionate to his known
sources of income, which he cannot reasonably account for or maintains a
standard of living beyond that which is commensurate with his sources of
income;
After the First Amendment
9. Corruption and Corrupt Practices: (a) A holder of a public office, or any other
person, is said to commit or to have committed the offence of corruption and
corrupt practices-
…
(v) if he or any of his dependents or other benamidars, through corrupt and
dishonest means, owns, possesses or acquires rights or title in assets
substantially disproportionate to his known sources of income which he
cannot reasonably account for.
Explanation I.–The valuation of immovable property shall be reckoned on the
date of purchase either according to the actual price shown in the relevant
title documents or the applicable rates prescribed by District Collector or the
Federal Board of Revenue whichever is higher. No evidence contrary to the
later shall be admissible.
Explanation II.–For the purpose of calculation of movable assets, the sum total
of credit entries of bank account shall not be treated as an asset. Bank
balance of an account on the date of initiation of inquiry may be treated as a
movable asset. A banking transaction shall not be treated as an asset unless
there is evidence of creation of corresponding asset through that
transaction.”
(emphasis supplied)
37. It may be noticed from the above that apart from reducing the circumstances
in which the offence of assets beyond means can be made out against the holder of
a public office, the First Amendment has made another material change in Section
9(a)(v), namely, the obligation on the NAB to prove that an accused has
accumulated substantially disproportionate assets ‘through corrupt and dishonest
means.’ This element was previously not a part of Section 9(a)(v). This is evident
from the ingredients of Section 9(a)(v) which were well-established in the
jurisprudence of the Court and required that the NAB prove that:
i. The accused is a holder of public office;
ii. The nature and extent of the pecuniary resources of the property found in the
accused’s possession;
iii. The known sources of income of the accused; and
iv. The resources or property found in the possession of the accused are
objectively disproportionate to his known sources of income [ref:
Muhammad Hashim Babar v. State (2010 SCMR 1697) at para 4].
Once the NAB had established the above-mentioned four elements the accused was
presumed to be guilty of the offence of corruption and corrupt practices unless he
could account for the resources or property so recovered from him. The NAB was
not required to demonstrate that the accused had obtained the resources or property
‘through corrupt and dishonest means’ because the mere presence of
disproportionate assets led to the presumption that the accused had engaged in
corrupt and dishonest conduct. Such a presumption is provided in Section 14(c) of
the NAB Ordinance. The fact of the matter is that the proof of acquisition of assets
‘through corrupt and dishonest means’ itself constitutes a complete offence.
Therefore, by changing Section 9(a)(v) the First Amendment has amalgamated two
separate offences into one. As a result, the original offence contained in Section
9(a)(v) has now been rendered redundant. To further ensure the futility of the said
offence all of the evidentiary presumptions contained in Section 14 of the NAB
Ordinance sustaining the erstwhile offence under Section 9(a)(v) and the remaining
offences in the NAB Ordinance have been omitted by Section 10 of the First
Amendment. The presumption relevant to Section 9(a)(v) of the Ordinance existed
in Section 14(c). This latter provision read:
“14. Presumption against accused accepting illegal gratification: …
c. In any trial, of an offence punishable under clause (v) of sub-section (a) of
section 9 of this Ordinance, the fact that the accused person or any other
person on his behalf, is in possession, for which the accused person cannot
satisfactorily account, of assets or pecuniary resources disproportionate to
his known source of income, or that such person has, at or about the time of
the commission of the, offence with which he is charged, obtained an
accretion to his pecuniary resources or property for which he cannot
satisfactorily account, the Court shall presume, unless the contrary is
proved, that the accused person is guilty of the offence of corruption and
corrupt practices and his conviction therefor shall not be invalid by reason
only that it is based solely on such a presumption.”
(emphasis supplied)
38. Further, by the insertion of Explanation II to Section 9(a)(v) entries in bank
statements have been removed from the scope of assets whereas banking
transactions can only be regarded as assets if there is evidence of the creation of a
corresponding asset through specific transactions. The source, object and quantum
of credits/ receipts in the bank accounts can now no longer be shown for proving
the creation of assets. Nor can debit transfers from one account to another be used
to show accumulation of money for the creation of an asset. It goes without saying
that bank records are usually the most pivotal evidence in financial crimes.
However, by virtue of Explanation II limited resort can be made to them. On a first
reading, the changes to Section 9(a)(v), the addition of Explanation II and the
omission of Section 14(c) might appear innocuous in nature but their effect both
individually and collectively has actually rendered the offence of corruption and
corrupt practices in the category of assets beyond means pointless. If accused
persons cannot be held to account for owning or possessing assets beyond their
means, the natural corollary will be that public assets and wealth will become
irrecoverable which would encourage further corruption. This will have a direct
adverse effect on the peoples’ right to life and to public property because the
economic well-being of the State will be prejudiced.
39. Additionally, when other accountability laws are examined in this context
such as the 1947 Act, it become obvious that no similar or corresponding changes
have been made in that Act in relation to the offence of assets beyond means. The
relevant provisions from the 1947 Act are produced below for reference:
“5. Criminal Misconduct.– (1) A public servant is said to commit the offence of
criminal misconduct:
…
(e) If he, or any of his dependents, is in possession, for which the public servant
cannot reasonably account of pecuniary resources or of property
disproportionate to his known sources of income.
…
(3) In any trial of an offence punishable under subsection (2) the fact that the
accused person or any other person on his behalf is in possession, for which
the accused person cannot satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of income may be proved,
and on such proof the Court shall presume unless the contrary is proved, that
the accused person is guilty of criminal misconduct and his conviction
therefore shall not be invalid by reason only that it is based solely on such
presumption.”
(emphasis supplied)
We have already held above in paras 29 and 31 that persons who are in the service
of Pakistan can still be tried under the 1947 Act for the offence of corruption and
corrupt practices even if they stand excluded from the jurisdiction of the NAB
pursuant to the amendments made in Section 4 of the NAB Ordinance. However,
the same cannot be said of elected holders of public office because they only fall
within the purview of the NAB Ordinance. The amended Section 9(a)(v) and the
omission of Section 14(c) would treat similarly placed persons differently because
while elected holders of public office are relieved from prosecution for the offence
under Section 9(a)(v), persons in the service of Pakistan will still have to go
through the rigors of trial under the 1947 Act for the same offence. This would
offend the equal treatment command of Article 25 of the Constitution. Insofar as
the other presumptions contained in Section 14 of the NAB Ordinance for the other
categories listed in Section 9(a) ibid are concerned, the same too stand revived as
their omission will prevent the recovery of public assets and wealth from the
holders of public office thereby defeating the peoples Fundamental Rights of
accessing justice and protecting their public property. Moreso, when presumptions
comparable to those in Section 14(a) [presumption as to motive] and (d)
[presumption as to guilt] for the categories of ‘illegal gratification,’ ‘obtaining a
valuable thing without consideration,’ ‘fraudulent misappropriation,’ ‘obtaining
property/valuable thing/ pecuniary advantage through illegal means’ and ‘misuse of
authority’ do not exist in any other accountability law, including the 1947 Act.
Declaration on Sections 8 and 10 of the First Amendment
A. Elected Holders of Public Office
i. For the foregoing reasons the phrase ‘through corrupt and dishonest means’
used in Section 9(a)(v) along with its Explanation II is struck down from the
NAB Ordinance from the date of commencement of the First Amendment
for being unworkable. Additionally, Section 14 in its entirety is restored to
the NAB Ordinance from the date of commencement of the First
Amendment. Sections 8 and 10 of the First Amendment are declared invalid
to this extent.
B. Persons in the Service of Pakistan
ii. The amendments made in Section 9 (a) (v) of the NAB Ordinance by Section
8 of the First Amendment are upheld in their entirety as persons in the
service of Pakistan can be tried for the same offence under the 1947 Act.
iii. However, Section 10 of the First Amendment is struck down from the date of
commencement of the First Amendment and Section 14(a), (b) and (d) stand
restored to the NAB Ordinance because such presumptions do not exist in
any other accountability law.
Section 14 of the First Amendment
40. Section 14 of the First Amendment has omitted Section 21(g) of the NAB
Ordinance. This provision provided that:
“21. International Cooperation Request for mutual legal assistance: The
Chairman NAB or any officer authorized by the Federal Government may
request a Foreign State to do any or all of the following acts in accordance
with the law of such State:–
…
(g) Notwithstanding anything contained in the Qanun-e-Shahadat Order, 1984
(P.O. 10 of 1984) or any other law for the time being in force all evidence,
documents or any other material transferred to Pakistan by a Foreign
Government shall be receivable as evidence in legal proceedings under this
Ordinance;”
The primary objective of Section 21(g) in particular and Section 21 in general was
explained by the Court in Mobashir Hassan (supra):
“99. …A perusal of above Section [21] indicates that on account of international
cooperation, request for mutual legal assistance means, the NAB or any
officer, authorized by the Federal Government, has been empowered to
make a request to a Foreign State to do any or all things mentioned therein…
for achieving the object to save the assets outside the country, allegedly
belonging to the nation, a mechanism has been provided on the basis of
international cooperation.
…
104. The Government of Pakistan is also signatory to the above UN Convention
[against Corruption] as it has been ratified by Pakistan on 31st August,
2007, regarding international cooperation in criminal matters in accordance
with Articles 44 to 50 of the above noted UN Convention, according to
which, where appropriate and consistent with their domestic legal system,
the State Parties shall consider assisting each other in investigation or
proceedings in civil and administrative matters, relating to corruption.
…
129. Section 21 of the NAO, 1999 is a comprehensive provision of law, which
spells out the nature of the request to a Foreign State for mutual legal
assistance… We believe that to curb the culture of corruption and corrupt
practices globally it has become necessary to enact such law on the basis of
which the objects noted hereinabove could be achieved.
130. …A perusal of UN Convention Against Corruption indicates that… State
parties shall consider assisting each other in investigations of and
proceedings in civil and administrative matters relating to corruption; as
well as affording to one another the widest measure of mutual legal
assistance in investigations, prosecutions, and judicial proceedings in
relation to the offences covered by the Convention; prevention and detection
of transfers of proceeds of crime. On the other hand, the promulgation of the
NRO, 2007, instead of preventing corruption and corrupt practices, has
encouraged the same…”
(emphasis supplied)
41. It is a common fact that many accused persons being tried under the NAB
Ordinance have stashed their wealth and assets abroad in tax havens under
fiduciary instruments. However, after the omission of the said provision the
admissibility of foreign public documents shall be governed by Article 89(5) of the
Qanun-e-Shahadat Order, 1984 (“1984 Order”) which reads:
“89. Proof of other public documents. The following public documents may be
proved as follows:
…
(5) Public documents of any other class in a foreign country, by the original, or
by a copy certified by the legal keeper thereof with a certificate under the
seal of a notary public, or of a Pakistan Consul or diplomatic agent, that the
copy is duly certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the law of
foreign country.”
It may be observed that the process of admitting foreign public documents under
the 1984 Order is protracted and cumbersome because it requires either the
production of the original document or a copy which is certified not only by the
legal keeper of the document but also by the Embassy of Pakistan. Further, the
character of the document needs to be established in accordance with the law of the
foreign country. Additionally, foreign private documents would need to be
established through the procedure set out in Articles 17 and 79 of the 1984 Order
which would require that two attesting witnesses from the foreign country enter
personal appearance for proving the execution of the foreign private document.
Such a process naturally entails time as the foreign evidence needs to pass through
red tape. It therefore defeats the purpose for which Section 21(g) was inserted into
the NAB Ordinance i.e., that after State cooperation led to the receipt of relevant
foreign evidence the same would be directly admissible in legal proceedings
initiated under the NAB Ordinance without fulfilling the onerous conditions of
Article 89(5) of the 1984 Order. By deleting Section 21(g) from the NAB
Ordinance Section 14 of 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.
Declaration on Section 14 of the First Amendment
42. Section 21(g) is hereby 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 peoples right to
access justice and for protecting their public property from squander. Accordingly,
Section 14 of the First Amendment is struck down for being illegal.
Section 14 of the Second Amendment
43. Section 14 of the Second Amendment has inserted two new provisos to
Section 25(b) of the NAB Ordinance. The said provision pertains to plea bargains
entered into by accused persons:
“25. Voluntary return and plea bargain: …
(b) Where at any time after the authorization of investigation, before or after the
commencement of the trial or during the pendency of an appeal, the accused
offers to return to the NAB the assets or gains acquired or made by him in
the course, or as a consequence, of any offence under this Ordinance, the
Chairman, NAB, may, in his discretion, after taking into consideration the
facts and circumstances of the case, accept the offer on such terms and
conditions as he may consider necessary, and if the accused agrees to return
to the NAB the amount determined by the Chairman, NAB, the Chairman,
NAB, shall refer the case for the approval of the Court, or as the case may
be, the Appellate Court and for the release of the accused:
Provided that statement of an accused entering into plea bargain or voluntary
return shall not prejudice case of any other accused:
Provided further that in case of failure of accused to make payment in
accordance with the plea bargain agreement approved by the Court, the
agreement of plea bargain shall become inoperative to the rights of the
parties immediately.”
(emphasis supplied)
44. For present purposes we are concerned only with the second proviso to
Section 25(b) of the NAB Ordinance which renders a plea bargain entered into by
an accused person inoperative if the accused fails to make the complete payment as
approved by the Accountability Court. Read on its own this proviso appears to
protect the interests of the State by ensuring prompt recovery of looted public
money and this intention is also reflected in the Statement of Objects and Reasons
attached to the Second Amendment:
” …Section 25 is related to protect the interest of the Government that in case
persons entering into plea bargain fail to make payment pursuant to the
payment approved by the court, the plea bargain agreement will become
infructuous.”
45. However, despite the benign purposes behind introducing the second proviso
to Section 25(b), the actual effect of it is that it nullifies Section 25(b) itself which
was inserted in the NAB Ordinance ‘to facilitate early recovery of the ill-gotten
wealth through settlement where practicable’ [ref: Asfandyar Wali case (supra) at
para 267] because it places no restrictions on the accused from revoking the plea
bargain entered into by him. It is established law that whilst a proviso can qualify
or create an exception to the main section it cannot nullify the same [ref:
Muhammad Anwar Kurd v. State (2011 SCMR 1560) at para 22]. Further, 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 Court in the case of Asfandyar Wali
(supra) recognised that plea bargain is in the nature of compounding an offence and
therefore it should be subject to the sanction of the Accountability Court. We see no
reason and none was advanced by learned counsel for the respondent Federation as
to why the Accountability Court should be excluded from the revocation of an
agreement which compounded the offence committed by the accused. The
exclusion of the Accountability Court by the second proviso to Section 25(b) of the
NAB Ordinance therefore undermines the independence of the Judiciary and is
violative of Article 175(3) of the Constitution.
46. Moreover, it is an admitted fact that under the proviso to Section 15(a) of the
NAB Ordinance (disqualification to contest elections or to hold public office) an
accused person who enters into a plea bargain suffers the same consequences as an
accused person who is convicted of the offence of corruption and corrupt practices
under Section 9(a). Such consequences are that the accused person either forthwith
ceases to hold public office, if any, held by him or further stands disqualified for a
period of ten years for seeking or from being elected, chosen, appointed or
nominated as a member or representative of any public body etc. Therefore,
allowing an accused person to renege from his plea bargain would be tantamount to
conferring an unlawful benefit on him i.e., he would escape the consequences
stipulated in Section 15(a) of the NAB Ordinance.
Declaration on Section 14 of the Second Amendment
47. The second proviso to Section 25(b) is struck down from the 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). As a result, Section 14 of the Second Amendment is declared to be
void and of no legal effect to this extent.
Conclusion
48. On the basis of the above discussion the Court holds:
i. The titled Constitution Petition is maintainable on account of violating Articles
9 (security of person), 14 (inviolability of dignity of man), 24 (protection of
property rights) and 25 (equality of citizens) of the Constitution and for
affecting the public at large because unlawful diversion of State resources
from public development projects to private use leads to poverty, declining
quality of life and injustice.
ii. Section 3 of the Second Amendment pertaining to Section 5(o) of the NAB
Ordinance that sets the minimum pecuniary threshold of the NAB at Rs.500
million and Section 2 of the 2022 Amendments pertaining to Section 4 of
the NAB Ordinance which limits the application of the 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 the NAB Ordinance;
iii. Section 3 of the Second 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 the Service of Pakistan for the
offences listed in Section 9(a)(i)-(v) of the NAB Ordinance;
iv. 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;
v. 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;
vi. Section 14 and Section 21(g) of the NAB Ordinance are restored from the
date of commencement of the First Amendment. Consequently, Sections 10
and 14 of the First Amendment are declared void; and
vii. The second proviso to Section 25(b) of the NAB Ordinance is declared to be
invalid from the date of commencement of the Second Amendment.
Therefore, Section 14 of the Second Amendment is void to this extent.
49. 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 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.
50. The titled Constitution Petition is allowed in these terms.
Sd/-
Umar Ata Bandial, H.C.J.
Sd/-
Ijaz ul Ahsan, J.
Sd/-
Syed Mansoor Ali Shah, J.
I dissent and have attached
my separate note.
SYED MANSOOR ALI SHAH J
*
.—I have read the judgment authored by the
Hon’ble Chief Justice of Pakistan to which my learned brother Justice Ijaz ul Ahsan
has concurred (“majority judgment”) provided to me last night. With great respect, I
could not make myself agree to it. Due to the paucity of time, I cannot fully record
reasons for my dissent and leave it for my detailed opinion to be recorded later.
However, in view of the respect that I have for my learned colleagues and for their
opinion, I want to explain, though briefly, why I am unable to agree with them.
2. In my humble opinion, the primary question in this case is not about the
alleged lopsided amendments introduced in the NAB law by the Parliament but
about the paramountcy of the Parliament, a house of the chosen representatives of
about 240 million people of Pakistan. It is about the constitutional importance of
parliamentary democracy and separation of powers between three organs of the
State. It is about the limits of the jurisdiction of the Court comprising unelected
judges, second judging the purpose and policy of an enactment passed by the
Parliament, without any clear violation beyond reasonable doubt, of any of the
fundamental rights guaranteed under the Constitution or of any other constitutional
provision.
3. The majority judgment has fallen short, in my humble opinion, to recognize
the constitutional command that ‘the State shall exercise its power and authority
through the chosen representatives of the people’ and to recognize the principle of
trichotomy of powers, which is the foundation of parliamentary democracy. The
majority has fallen prey to the unconstitutional objective of a parliamentarian, of
transferring a political debate on the purpose and policy of an enactment from the
Houses of the Parliament to the courthouse of the Supreme Court. Without setting
out a clear and objective test for determining how the claimed right to have
accountability of the parliamentarians is an integral part of any of the fundamental
rights guaranteed under the Constitution, the majority judgment through a long
winding conjectural path of far-fetched “in turn” effects has tried hard to
“ultimately” reach an apprehended violation of the fundamental rights. The
majority judgment has also fallen short to appreciate that what Parliament has done,
Parliament can undo; the legislative power of the Parliament is never exhausted. If
the Parliament can enact the NAB law, it can also repeal the entire law or amend
the same.
4. For these and further reasons to be recorded in my detailed opinion later, with
great respect, I disagree with my learned brothers and dismiss this petition.
Sd/-
Judge
Order of the Bench
By majority of 2:1 (Justice Syed Mansoor Ali Shah dissenting) Constitution
Petition No.21 of 2022 is allowed.
Sd/-
Umar Ata Bandial, H.C.J.
Sd/-
Ijaz ul Ahsan, J.
Sd/-
Syed Mansoor Ali Shah, J.
Table of Contents
**
Prologue 166
Summation of the matter 169
Main premise of the majority judgment 169
Reasons for dissent 170
(i) Elected holders of public offices are triable under PCA and P.P.C. 171
Analysis of the Antulay case relied upon by the majority 172
(a) A member of Parliament is an officer, i.e., a holder of an office 175
(b) A member of Parliament performs a public duty 176
(c) A member of Parliament is remunerated by fees, i.e., salary and
allowances 176
Reference to cases holding members of Parliament and Ministers as public
servants 177
(ii) Change of forum for investigation and trial of certain offences falls within
the policy domain of legislature (Parliament) 180
Principle of trichotomy of power 181
(ii)-A No substantial effect of omission of Section 14 of the NAB Ordinance
182
(ii)-B No substantial effect of addition of words “through corrupt and
dishonest means”
in section 9(a)(v) of the NAB Ordinance 184
(ii)-C Constitutionality of other amendments 185
(iii) Challenged amendments (law made by the Parliament) do not take away
or abridge any of the fundamental rights 185
Doctrines of exhaustion and functus officio, not applicable to legislative
powers 187
Objective criterion for recognising new rights as fundamental rights 188
Conclusion: Petition is meritless 189
Locus standi of the petitioner 189
Judges of the constitutional courts and Members of the Armed Forces are
accountable under the NAB Ordinance and the PCA. 190
SYED MANSOOR ALI SHAH, J.—Benjamin Cardozo said: ‘The voice of the
majority may be that of force triumphant, content with the plaudits of the hour and
recking little of the morrow. The dissenter speaks to the future, and his voice is
pitched to a key that will carry through the years … the [dissenters] do not see the
hooting throng. Their eyes are fixed on eternities.’
1 Antonin Scalia was right when
he said that ‘[d]issents augment rather than diminish the prestige of the Court’
2
.
Courts must rise above the ‘hooting throng’ and keep their eyes set on the future of
democracy, undeterred by the changing politics of today. Courts unlike political
parties don’t have to win popular support. Courts are to decide according to the
Constitution and the law even if the public sentiment is against them.
Prologue
2. One of the foundations of democracy is a legislature elected freely and
periodically by the people. Without a majority rule, as reflected in the power of the
legislature, there is no democracy
3
. Justice McLachlin rightly said that in
democracies, “the elected legislators, the executive and the courts all have their role
to play. Each must play that role in a spirit of profound respect for the other. We are
not adversaries. We are all in the justice business, together”
4
.
3. Courts must realize that legislation is an elaborate undertaking which is an
outcome of debate and deliberations of public, social and economic policy
considerations. Role of a judge in a democracy recognizes this central role of the
Legislature. The courts can judicially review the acts of the legislators if they
offend the Constitution, in particular the fundamental rights guaranteed by the
Constitution. While examining this conflict of rights and the legislation, the courts
must consider that they are dealing with a legislative document that represents
multiple voices, myriad policy issues and reflective of public ethos and interests,
voiced through the chosen representatives of the people. And remembering that
undermining the legislature undermines democracy. With this background, only if
such a legislation is in conflict and in violation of the fundamental rights or the
express provisions of the Constitution, can the courts interfere and overturn such a
legislation. At the foundation of this approach is the basic view that the Court does
not fight for its own power. The efforts of the Court should be directed towards
protecting the Constitution and its values
5
.
4. The delicate institutional balance between various institutions in the
constitutional scheme is largely maintained through mutuality of respect which
each institution bestows on the other.
6
In a parliamentary form of government, the
executive (Government) is usually constituted from amongst the representatives of
the majority party in the legislature (Parliament) and is thus, in a sense, a part of
the latter. It is, therefore, very rare that the executive and the legislature come in a
head-on collision against each other in the performance of their assigned functions
under the Constitution. In this system of government, the judiciary is seen more
often than not as an opponent of the executive or the legislature. This impression
can only be removed, or at least moderated, by “mutuality of respect”
7 between the
judiciary and other organs of the State, particularly between the judiciary and the
legislature. The courts have formulated the doctrine of judicial restraint which
‘urges Judges considering constitutional questions to give deference to the views of
the elected branches and invalidate their actions only when constitutional limits
have clearly been violated’
8
. As the legislative acts of a legislature are the
manifestation of the will of the people exercised through their chosen
representatives, the courts tread carefully to judicially review them and strike them
down only when their constitutional invalidity is clearly established beyond any
reasonable doubt.
9 A reasonable doubt is resolved in favour of the constitutional
validity of the law enacted by a competent legislature by giving a constitutioncompliant interpretation to the words that create such doubt.
10
5. Steven Levitsky and Daniel Ziblatt in their recent book “How Democracies
Die” have argued that two norms stand out as fundamental to a functioning
democracy: “mutual toleration” and “institutional forbearance.” These norms
become more nuanced in the present context as we later on discuss the nature of the
amendments to our accountability law in the country. “Mutual toleration” refers to
the idea that as long as our rivals play by constitutional rules, we accept that they
have an equal right to exist, compete for power, and govern. We may disagree with,
and even strongly dislike, our rivals, but we nevertheless accept them as legitimate.
This means recognizing that our political rivals are decent, patriotic, law-abiding
citizens – that they love our country and respect the constitution just as we do. It
means that even if we believe our opponents’ ideas to be foolish or wrong-headed,
we do not view them as an existential threat. Nor do we treat them as treasonous,
subversive, or otherwise beyond the pale. We may shed tears on election night
when the other side wins, but we do not consider such an event apocalyptic. Put
another way, mutual toleration is politicians’ collective willingness to agree to
disagree…. [Political] parties can be rivals rather than enemies, circulating power
rather than destroying each other. This recognition was a critical foundation for
American democracy…. when norms of mutual toleration are weak, democracy is
hard to sustain.”
11
6. “The second norm critical to democracy’s survival is what we call institutional
forbearance. Forbearance means patient self-control; restraint and tolerance…
Where norms of forbearance are strong, politicians do not use their institutional
prerogatives to the hilt, even of it is technically legal to do so, for such action could
imperil the existing system…. Think of democracy as a game that we want to keep
playing indefinitely. To ensure future rounds of the game, players must refrain from
either incapacitating the other team or antagonizing them to such a degree, that they
refuse to play again tomorrow. If one’s rival quits, there can be no future games ….
the opposite of forbearance is to exploit one’s institutional prerogatives in an
unrestrained way. Legal scholar Mark Tushnet call this “constitutional hardball”; ..it
is a form of institutional combat aimed at permanently defeating one’s partisan
rivals – and not caring whether the democratic game continues.”
12 With this
understanding of democracy, “mutuality of respect” and “institutional forbearance”,
we are to deal with the present case.
Summation of the matter
7. In the exercise of its legislative power conferred on it by Article 142(b) of the
Constitution of the Islamic Republic of Pakistan (“Constitution”) to make laws with
respect to criminal law, criminal procedure and evidence, the Parliament
comprising the chosen representatives of the people of Pakistan has made certain
amendments in the National Accountability Ordinance 1999 (“NAB Ordinance”).
The petitioner, 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 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. My learned colleagues, the Hon’ble Chief Justice and Hon’ble Justice
Ijaz ul 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.
6(sic). The Parliament has, through the challenged amendment, merely changed
the forums for investigation and trial of the offences of corruption involving the
amount or property less than Rs.500 million. After the amendment, the cases of
alleged corruption against the holders of public offices that involve the amount or
property of value less than Rs.500 million are to be investigated by the anticorruption investigating agencies and tried by the anti-corruption courts of the
Federation and Provinces respectively, under the Prevention of Corruption Act 1947
and the Pakistan Criminal Law Amendment Act 1958, instead of the NAB
Ordinance. This matter undoubtedly falls within the exclusive policy domain of the
legislature, not justiciable by the courts. In my opinion, this and other challenged
amendments, which relate to certain procedural matters, in no way take away or
abridge any of the fundamental rights guaranteed by the Constitution to the people
of Pakistan. Hence, my dissent.
Main premise of the majority judgment
7(sic). The majority has found that the ‘elected holders of public office are not
triable either under the 1947 Act [Prevention of Corruption Act] or the P.P.C.
[Pakistan Penal Code] for the offence of corruption and corrupt practices’
13
, and
that by ‘amending Section 5(o) of the NAB Ordinance to raise the minimum
pecuniary threshold of the NAB to Rs.500 million, Section 3 of the Second
Amendment has undone the legislative efforts beginning in 1976 to bring elected
holders of public office within the ambit of accountability laws … Once excluded
from the jurisdiction of the NAB no other accountability fora can take cognizance
of their alleged acts of corruption and corrupt practices’
14
. On these findings, the
majority has concluded that 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 people’s 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.’
15
Reasons for dissent
8. With utmost respect, the majority view, in my humble opinion, is not correct
as even after the challenged amendments:
(i) the elected holders of public offices (members of Parliament, Provincial
Assemblies and Local Government Bodies, etc.) are still triable under the
Prevention of Corruption Act 1947 (PCA) and the Pakistan Penal Code 1860
(P.P.C.) 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;
(ii) the challenged amendment of adding the threshold value of Rs.500 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
Rs.500 million. This matter falls within the exclusive policy domain of the
legislature (Parliament); and
(iii) the said and other challenged amendments (law made by the Parliament) do
not take away or abridge any of the fundamental rights guaranteed under
Articles 9, 14, 23, 24 and 25 of the Constitution of the Islamic Republic of
Pakistan (Constitution).
I would elucidate the above three statements seriatim.
(i) Elected holders of public offices are triable under P.C.A. and P.P.C.
9. The answer to the question, whether the elected holders of public offices (i.e.,
members of Parliament and Provincial Assemblies, etc.) are triable for the alleged
offences of corruption and corrupt practices under the P.C.A. and the P.P.C., hinges
upon the definition of the expression “public servant” provided in the latter part of
clause ninth of Section 21 of the P.P.C. The majority has found that the elected
holders of public offices do not fall within the definition of “public servant” and are
therefore not triable for the alleged offence of corruption and corrupt practices
either under the P.C.A. or under the P.P.C. With respect I submit that before arriving
at this finding, the majority has failed to fully examine the definition of the
expression “public servant” provided in the latter part of clause ninth of Section 21,
P.P.C., and have erroneously relied upon the two judgments from the foreign
jurisdictions (R. S. Nayak v. A.R. Antulay AIR 1984 SC 684 and Zakir Hossain v.
State 70 DLR [2018] 203), without noticing the difference of the provisions of
Section 21, P.P.C., from the relevant provisions of the penal codes of those
countries. The said difference is highlighted in the following comparative table:
Latter part of clause
ninth of Section 21 of the
Pakistan Penal Code
Clause twelfth (a) of
Section 21 of the Indian
Penal Code
Clause twelfth (a) of
Section 21 of the Penal
Code of Bangladesh
every officer in the
service or pay of the
Government or
remunerated by fees or
commission for the
performance of any
public duty;
Every person in the
service or pay of the
Government or
remunerated by fees or
commission for the
performance of any
public duty by the
Government;
Every person in the
service or pay of the
Government or
remunerated by the
Government by fees or
commissions for the
performance of any
public duty;
A bare reading of the above definitions shows that the notable difference
between the definition in the Pakistan Penal Code (P.P.C.) and the definitions in the
Indian Penal Code (I.P.C.) as well as in the Bangladesh Penal Code (B.P.C.) is that
the word “Government” has been used once in the P.P.C. while in the I.P.C. and the
B.P.C., it has been used twice. It is the absence of the word “Government” in the
second limb of the definition provided in the P.P.C. that makes the real difference,
which I will explain later, in the meaning and scope of these definition clauses of
“public servant” in three penal codes. The word “or” used after the word
“Government” in the P.P.C. and after the first word “Government” in the I.P.C. and
the B.P.C. signifies that there are actually two types of officers (word “officer” used
in the P.P.C.) or persons (word “person” used in the I.P.C. and B.P.C.) that fall
within the scope of “public servant” as defined therein. When the two limbs of the
above three definitions are split, they take the following forms:
Splitting of second part
of clause ninth of Section
21 of Pakistan Penal
Code
Splitting of clause
twelfth (a) of Section 21
of the Indian Penal Code
Splitting of clause
twelfth (a) of Section 21
of the Penal Code of
Bangladesh
i. Every officer in the
service or pay of the
Government ii. Every
officer remunerated by
fees or commission for
the performance of any
public duty
i. Every person in the
service or pay of the
Government ii. Every
person remunerated by
fees or commission for
the performance of any
public duty by the
Government
i. Every person in the
service or pay of the
Government Every
person remunerated by
the Government by fees
or commissions for the
performance of any
public duty
Having set out the relevant provisions of the penal codes of the three countries and
the difference between them, we can now better appreciate the ratio of the cases
relied upon by the majority.
Analysis of Antulay relied upon by the majority
10. Since in Zakir Hossain
16
the High Court Division of the Supreme Court of
Bangladesh has mainly relied upon Antulay, it is this latter case decided by the
Indian Supreme Court that requires a minute examination. The word “Government”
has also been used in the IPC, as aforenoted, in relation to a person ‘remunerated by
fees or commission for the performance of any public duty’. In Antulay, the Indian
Supreme Court therefore observed that a person would be a public servant under
Clause (12) (a) of Section 21, IPC, if:
(i) he is in the service of the Government; or
(ii) he is in the pay of the Government; or
(iii) he is remunerated by fees or commission for the performance of any public
duty by the Government.
17
The Indian Supreme Court formulated the question thus:
[W]hether M.L.A. [Member of Legislative Assembly of a State] is in the pay of
the Government of a State or is remunerated by fees for the performance of
any public duty by the Government of a State?
18
In the course of its discussion on the question, the Indian Supreme Court observed
that ‘[t]he Legislature lays down the broad policy and has the power of purse. The
executive executes the policy and spends from the Consolidated Fund of the State
what Legislature has sanctioned. The Legislative Assembly enacted the Act
enabling to pay to its members salary and allowances. And the members vote on the
grant and pay themselves. Therefore, even though M.L.A. receives pay and
allowances, he is not in the pay of the State Government because Legislature of a
State cannot be included in the expression “State Government”.
19
10.1. Responding to the contention that an M.L.A. does not perform any public
duty, the Indian Supreme Court observed that ‘it would be rather difficult to accept
an unduly wide submission that M.L.A. is not performing any public duty….He no
doubt performs public duties cast on him by the Constitution and his electorate. He
thus discharges constitutional functions for which he is remunerated by fees under
the Constitution and not by the Executive.’
20
10.2. After a thorough discussion on the pro and contra arguments, the Indian
Supreme Court answered the question in the negative by concluding that ‘[t]he
expression “Government and Legislature”,…are distinct and separate entities. …
[T]he expression “Government” in Section 21(12) (a) [of the IPC] clearly denotes
the executive and not the Legislature. M.L.A. is certainly not in the pay of the
executive. Therefore, the conclusion is inescapable that even though M.L.A.
receives pay and allowances, he can not be said to be in the pay of the Government
i.e. the executive’
21 nor is he ‘remunerated by fees paid by the Government i.e. the
executive.’
22 On this conclusion, the Indian Supreme Court held that an M.L.A. ‘is
thus not a public servant within the meaning of the expression in Clause (12) (a) [of
Section 21 of the IPC]’
23
.
10.3. The close examination of the Antulay thus reveals that it was decided on
the ratio that even though an M.L.A. receives pay and also performs public duties,
he does not receive that pay from the Government nor is he remunerated by fees by
the Government but rather he is remunerated by fees under the Constitution.
Therefore, he does not fall within the definition of “public servant” under clause
(12) (a) of Section 21 of the IPC. The deciding factor in that case was the
requirement of being in the pay of the Government or being remunerated by fees by
the Government. At the cost of repetition but for clarity and emphasis, it is restated
that the Indian Supreme Court held:
[An M.L.A.] no doubt performs public duties cast on him by the Constitution …
for which he is remunerated by fees under the Constitution and not by the
Executive [Government].
24
It is, therefore, the absence of the word “Government” in the second limb of the
latter part of clause ninth of Section 21, P.P.C., that makes the real difference in the
meaning and scope of the relevant definition clauses of “public servant” in the
penal codes of three countries.
11. As per the second limb of the latter part of clause ninth of Section 21, P.P.C.,
every officer remunerated by fees or commission for the performance of any public
duty is a public servant. Thus, to fall within the scope of this definition of “public
servant”:
(a) a person should be an officer,
(b) he should perform any public duty, and
(c) he should be remunerated by fees or commission for the performance of that
public duty.
There is no condition that for the performance of public duty, the fees or
commission is to be paid by the Government. Therefore, every officer remunerated
by the fees or commission for the performance of any public duty is a public
servant under Section 21, P.P.C., irrespective of the fact whether the fee is paid by
the Government or by any other public body or by an Act of Parliament under the
Constitution.
12. This statutory definition of a “public servant” in the P.P.C. fully corresponds
to the common law definition formulated by Chief Justice Best in Henly
25
in the
terms that ‘every one who is appointed to discharge a public duty and receives a
compensation in whatever shape, whether from the crown or otherwise, is
constituted a public officer’. In a similar vein, Justice Lawrence held in Whittaker
26
that a ‘public officer is an officer who discharges any duty in the discharge of which
the public are interested, more clearly so if he is paid out of a fund provided by the
public. If taxes go to supply his payment and the public have an interest in the
duties he discharges, he is a public officer’. In these common law definitions
articulated by the two distinguished judges, like the definition provided in Section
21, P.P.C., there is no emphasis on who makes the payment from a public fund for the
performance of public duty.
13. What, therefore, needs determination is whether a member of Parliament
fulfills all the above three conditions to fall within the scope of the definition of
“public servant” provided in the ninth clause of Section 21, P.P.C. Applicability of
each of the three conditions to a member of Parliament is examined next.
(a) A member of Parliament is an officer, i.e., a holder of an office
13.1. As for the first condition of being an officer, the word “officer” has not
been defined in the P.P.C. While it is obvious that it refers to a person who holds an
office, the matter does not end here as then arises a further question, what the word
“office” means. Though the word “office” is of indefinite content, it is ordinarily
understood to mean a position to which certain duties of a more or less public
character are attached,
27 especially a position of trust, authority or service.
28.
It is a
subsisting, permanent and substantive position, which has an existence independent
of the person who fills it, which goes on and is filled in succession by successive
holders.
29 The position is an office whether the incumbent is selected by
appointment or by election and whether he is appointed during the pleasure of the
appointing authority or is elected for a fixed term.
30 The position of a member of
Parliament squarely falls within the scope of this definition of “office”; as it is
subsisting, permanent and substantive, which exists independent of the person who
for the time being fills it and which goes on and is filled in succession by others
after him.
31 A member of Parliament is therefore the “holder of an office” and is
thus an “officer” within the meaning and scope of this term used in clause ninth of
Section 21, P.P.C. The invaluable observations of Justices Isaacs and Rich made in
Boston
32
, also support the finding that the position of a member of Parliament is an
office and the holder of this position is an officer. They observed:
A Member of Parliament is, … in the highest sense, a servant of the State; his
duties are those appertaining to the position he fills, a position of no
transient or temporary existence, a position forming a recongnized place in
the constitutional machinery of government Clearly a member of Parliament
is a “public officer” in a very real sense, for he has…”duties to perform
which would constitute in law an office”.
(b) A member of Parliament performs a public duty
13.2. As a duty in the discharge of which the public is interested, is a “public
duty”, anyone can hardly dispute that a person in his position as a member of
Parliament does perform a “public duty”. ‘He no doubt performs public duties cast
on him by the Constitution’,
33 which include enacting laws, regulating public funds
and sanctioning expenditures therefrom, and overseeing the functioning of the
Government (Cabinet of Ministers), etc. These duties are such in which the public
has an interest; they are, therefore, public duties.
34
(c) A member of Parliament is remunerated by fees, i.e., salary and allowances
13.3. So far as the remuneration for the performance of these public duties is
concerned, a member of Parliament is remunerated by salary and allowances under
an Act of Parliament.
35
In Antulay, such salaries and allowances were treated as
“fees” by holding that a member of the Legislative Assembly ‘no doubt performs
public duties cast on him by the Constitution … for which he is remunerated by fees
under the Constitution’.
36 The words “remuneration” and “fees” are of wide
amplitude; they include “compensation in whatever shape”. In R v. PostmasterGeneral,
37
Justice Blackburn observed:
I think the word ‘remuneration’ … means a quid pro quo. If a man gives his
services, whatever consideration he gets for giving his services seems to be
a remuneration for them.
This definition of the word “remuneration” was adopted by this Court in National
Embroidery Mills
38
for holding that ‘the word “remuneration” has a wider
significance than salary and wages’ and that it ‘includes payments made, besides the
salary and wages.’ Justice Blackburn’s statement was also relied upon by the Indian
Supreme Court in Bakshi
39
in support of the observation that the expression
“remuneration”, in its ordinary connotation, means reward, recompense, pay, wages
or salary for service rendered. A “fee”, like remuneration, also means a quid pro
quo,
40 and in this regard is synonymous with “remuneration”. Article 260 of our
Constitution defines the word “remuneration” to include salary. The word “fees”
used in the definition of “public servant” under consideration, being synonymous
with the word “remuneration”, also includes salary and allowances. A member of
Parliament is, therefore, remunerated by fees (salary and allowances) for the
performance of public duties.
14. A member of Parliament, thus, fulfills all the three conditions to fall within
the scope of the definition of “public servant” provided in the second limb of the
latter part of clause ninth of Section 21, P.P.C., and is, therefore, triable as a “public
servant” for the alleged commission of an offence of corruption and corrupt
practices (criminal misconduct) under the P.P.C. and the P.C.A.
Reference to cases holding members of Parliament and Ministers as public
servants
15. In this conclusion, I am fortified by the judgment of the Indian Supreme
Court delivered in the case of Narsimha Rao
41
. In that case, while interpreting the
provisions of Section 2(c)(viii) of the Indian Prevention of Corruption Act 1988 it
was held that a member of Parliament is a public servant within the meaning and
scope of those provisions and is therefore triable under the said Act. To see the
relevancy of that case to this case, it would be expedient to cite here the provisions
of the Indian law on the basis of which the Indian Supreme Court so held. They are
as follows:
(viii) any person who holds an office by virtue of which he is authorised or
required to perform any public duty;
(Emphasis added)
A bare reading of the above provisions shows that they contain two conditions that
are common to the definition of “public servant” considered in this case: (a) a
person should hold an office, i.e., he should be an officer, and (b) he should
perform any public duty. The only missing condition which is present in the
definition considered in this case but is not there in the above provisions is that of
being “remunerated by fees”. This third condition, the Indian Supreme Court had
already held in Antulay, is also fulfilled by a member of Parliament as he receives
salary and allowance.
16. It would also be pertinent to mention here that on the basis
of the definition of “public servant” provided in the latter part of clause ninth of
Section 21, P.P.C., the Dacca High Court, an erstwhile Pakistani High Court, held
in the cases of Abul Monsur
42 and Mujibur Rahman
43
that a Minister is a public
servant and is triable for the offences under the PCA. These cases referred to and
relied upon the cases of Sibnath Banerji
44 and Shiv Bahadur
45 decided by the
Privy Council and the Indian Supreme Court respectively, which had also held that
a Minister is a public servant. The observations and reasoning of Justice Baquer in
Abul Monsur for holding that a Minister is a public servant are quite instructive and
worth quoting here:
The last lines “and every officer in the service or pay of the Crown or
remunerated by fees or commission for the performance of any public duty”
are very comprehensive. The Clause begins with “Every officer” and then
again adds “and every officer” before closing. There is no disjunctive ‘or’.
Under those circumstances the inclusion of Minister in the category does not
seem to be hit by the ejusdem generis rule … The popular notion that a
Minister is a public servant of the first order, does not seem to be absolutely
erroneous. At any rate no person could be a more public person than a
Minister in the sense that his duties are with the public and he is the people’s
man in the Government of the country … The language of a statute is not
unoften extended to new things which were not known and could not have
been contemplated by the Legislature when it was passed. Of course subject
to this that the thing coming afterwards is a species of the genus that the
Legislature dealt with…It cannot be denied that the Minister is a species of
the genus although the Minister may combine in himself other features that
do not wholly apply in the case of ordinary officers and public servants …
The categories of public servants are never closed particularly in the
background of the total change in the conception of ‘public servant’ in
modern times. In a society imbued with a sense of wider and wider public
service and duties, there can be no justification for confining the
connotation of public servant literally to the concept of public servants as
prevailing in 1850. Nor has it been so confined. The Minister in aiding and
advising the Governor represents the public and in doing so, he performs a
duty owed to the public in the most literal sense of the term. Criminal
misconduct on the part of a Minister is the more reprehensible and there can
be no valid reason for keeping his position sacrosanct and above the law on
purely technical grounds. Law being not very far from the ethical sense of
the community it is not to be given a meaning that is revolting to society.
Unfortunately, all these cases escaped the notice of the majority. It may also be
pertinent to mention that elected officer holders or members of Parliament may
commit corruption or corrupt practices, inter alia, through the following means: (i)
Bribery: by accepting bribes from individuals or businesses in exchange for
political favors, contracts, or regulatory decisions; (ii) Embezzlement: by
misappropriating public funds for personal use, often by diverting money meant for
public projects or services; (iii) Kickbacks: by receiving a portion of money from
contracts or projects awarded to specific companies in return for steering those
contracts their way; (iv) Nepotism and cronyism: by appointing family members or
close associates to government positions or awarding them contracts without fair
competition; (v) Extortion: by forcing individuals or businesses to pay money
through threats or coercion; (vi) Money laundering: by concealing the origins of
illegally obtained funds by making them appear legitimate through a series of
transactions; (vii) Shell companies: by creating fake companies to funnel money
illicitly, making it difficult to trace the funds back to the corrupt politician; (viii)
Fraudulent land deals: by illegally acquiring public or private land and then selling
it for personal gain; (ix) Insider trading: by using non-public information gained
through political office to make profitable investments in the stock market; (x) Tax
evasion: by underreporting income or using offshore accounts to hide money and
avoid paying taxes. All these acts are triable for the offences of corruption and
corrupt practices not only under the P.C.A. and the P.P.C. but they are also triable
for different offences under the Income Tax Ordinance 2001, the Anti-Money
Laundering Act 2010 and the Elections Act 2017, etc.
(ii) Change of forum for investigation and trial of certain offences falls within
the policy domain of legislature (Parliament)
17. Since the members of Parliament (elected holders of public office) being
“public servants” are triable under the P.P.C. and the P.C.A. 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 cognizance of their
alleged acts of corruption and corrupt practices, respectfully submitted, does not
stand. 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 Rs.500 million, Parliament has effectively absolved them from
any liability for their acts. Reliance on Mobashir Hassan
46
is, therefore, also not
well placed.
18. The effect of adding the said threshold of value by the challenged
amendments in the NAB Ordinance is simply that the cases of alleged corruption
and corrupt practices (criminal misconduct) against the members of Parliament and
Provincial Assemblies that involve the amount or property of value less than
Rs.500 million shall now be investigated and tried under the PCA by the respective
anti-corruption investigating agencies and anti-corruption courts of the Federation
and Provinces. 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. If a legislature has the
constitutional authority to pass a law with regard to a particular subject, it is not for
the courts to delve into and scrutinize the wisdom and policy which led the
legislature to pass that law.
19. The majority has observed that ‘No cogent argument was put forward by
learned counsel for the respondent Federation as to why Parliament has fixed a
higher amount of Rs.500 million 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
Rs.100 million as mega scandals.’
47 With great respect, it is 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. Any observation by a court that the NAB
should investigate the offences involving “mega scandals”, indicating any threshold
in this regard can at most be a recommendation to be considered by the legislature,
which is not binding on the latter. The legislature may, in its wisdom, after
considering the recommendation either enhance or reduce the proposed threshold or
may simply decide not to act upon that. The courts cannot force the legislature to
act upon their recommendations nor can they strike down any law competently
enacted by the legislature which does not commensurate with their
recommendations.
Principle of trichotomy of power
20. Our Constitution is based on the principle of trichotomy of power in which
legislature, executive and judiciary have their separately delineated functions. The
legislature is assigned the function to legislate laws, the executive to execute laws
and the judiciary to interpret laws. None of these three organs are dependent upon
the other in the performance of its functions nor can one claim superiority over the
others.
48 Each ‘enjoys complete independence in their own sphere’
49 and is ‘the
master in its own assigned field’
50 under the Constitution. Any one of these three
organs cannot usurp or interfere in the exercise of each other’s functions,
51 nor can
one encroach upon the field of the others
52
. This trichotomy of power is so
important that it is said to be a ‘basic feature of the Constitution’,
53 a ‘cornerstone
of the Constitution,’
54 a ‘fundamental principle of the constitutional construct’,
55
and ‘one of the foundational principles of the Constitution’
56
. In view of this
constitutional arrangement of separation of powers between three organs of the
State, this Court strongly repelled in Mamukanjan
57 an argument challenging the
vires of a law enacted by the legislature on the ground that the law was enacted to
undo the effect of a judgment passed by a High Court, thus:
The argument…is without substance and which if accepted would indeed lead to
startling results. It would strike at the very root of the power of Legislature,
otherwise competent to legislate on a particular subject, to undertake any
remedial or curative legislation after discovery of defect in an existing law
as a result of the judgment of a superior Court in exercise of its
constitutional jurisdiction. The argument overlooks the fact, that the
remedial or curative legislation is also “the end product” of constitutional
jurisdiction in the cognate field. The argument if accepted, would also seek
to throw into serious disarray the pivotal arrangement in the Constitution
regarding the division of sovereign power of the State among its principal
organs; namely, the executive, the Legislature and the judiciary each being
the master in its own assigned field under the Constitution.
(Emphasis added)
With great respect, I would submit that the above observations of the majority, in
the words used in Mamukanjan, ‘throw into serious disarray the pivotal
arrangement in the Constitution regarding the division of sovereign power of the
State among its principal organs’.
21. Although after explaining that the main premise of the majority judgment
that the elected holders of public offices are not triable either under the P.C.A. or
under the P.P.C. for the offence of corruption and corrupt practices is, in my humble
opinion, not correct, it is not necessary to discuss the other related NAB
amendments that have also been declared ultra vires the Constitution by the
majority. Yet, I find it appropriate to briefly discuss such amendments.
(ii)-A No substantial effect of omission of Section 14 of the NAB Ordinance
22. The omission of Section 14 of the NAB Ordinance has made no substantial
effect in view of the provisions of Article 122 of the Qanun-e-Shahadat 1984. The
omitted Section 14 of the NAB Ordinance provides inter alia that in a trial of an
offence punishable under Section 9(a)(v) of the NAB Ordinance, if the fact is
proved that the accused is in possession of assets or pecuniary resources
disproportionate to his known source of income, the Court shall presume, unless the
contrary is proved, that the accused person is guilty of the offence of corruption and
corrupt practices. The majority judgment has held that the omission of Section
14(c), along with the change made in Section 9(a)(v), might appear innocuous in
nature but their effect both individually and collectively has actually rendered the
offence of corruption and corrupt practices pointless in the category of assets
beyond means, and if accused persons cannot be held to account for owning or
possessing assets beyond their means, the natural corollary will be that public
assets and wealth will become irrecoverable which would encourage further
corruption.
58 With respect, I would say that no such effect has occurred by the
omission of Section 14 from the NAB Ordinance.
23. The different clauses of the omitted Section 14 of the NAB Ordinance are
actually the descriptive instances of the applicability of the principle of “evidential
burden”
59 enshrined in Article 122 of the Qanun-e-Shahadat 1984 (formerly
Section 106 of the Evidence Act 1872), which provides:
When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
The illustrations of Article 122 of the Qanun-e-Shahadat are also quite instructive
to understand the scope thereof, which are as follows:
(a) When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.
Clauses (a), (b) and (d) of the omitted Section 14 of the NAB Ordinance relate to
the intention of the accused other than that which the character and circumstances
of the act proved against him by the prosecution suggest. These clauses are,
therefore, merely descriptive instances of the applicability of Article 122 read with
its illustration (a) of the Qanun-e-Shahadat. And clause (c) of the omitted Section
14 of the NAB Ordinance that relates to possessing assets disproportionate to
known sources of income is the descriptive instance of the applicability of Article
122 read with its illustration (b) of the Qanun-e-Shahadat. That being the legal
position, this Court in Mazharul Haq
60 by referring to Rehmat
61
(wherein the scope
of Section 106 of the Evidence Act, now Article 122 of the Qanun-e-Shahadat, had
been explained) held:
[T]he ordinary rule that applies to criminal trials, viz., that the onus lies on the
prosecution to prove the guilt of the accused, is not in any way modified by
the rule of evidence contained in this section [14 of the NAB Ordinance]
which cannot be used to make up for the inability of the prosecution to
produce evidence of circumstances necessary to prove the guilt of the
accused. It is only in cases where the facts proved by the evidence give rise
to a reasonable inference of guilt unless the same is rebutted, that such
inference can be negative[d] by proof of some fact which, in its nature, can
only be within the special knowledge of the accused.
(Emphasis added)
Also in Hashim Babar
62
referred to in the majority judgment, this legal position
was reiterated, thus:
It is also settled principle of law that the initial burden of proof [legal burden] is
on the prosecution to establish the possession of properties by an accused
disproportionate to his known sources of income to prove the charge of
corruption and corrupt practices under NAB Ordinance, 1999 and once this
burden is satisfactorily discharged, onus [evidential burden] is shifted to the
accused to prove the contrary and give satisfactory account of holding the
properties…
Therefore, in view of the provisions of Article 122 of the Qanun-e-Shahadat, the
omission of Section 14 from the NAB Ordinance by the challenged amendments
does not have any substantial effect. Notwithstanding such an innocuous effect, the
change in the rules of evidence squarely falls within the scope of the legislative
competence of the Parliament under Article 142(b) of the Constitution and unless
such change offends any of the fundamental rights, it is not justiciable in courts.
(ii)-B No substantial effect of addition of words “through corrupt and dishonest
means” in section 9(a)(v) of the NAB Ordinance
24. Similar is the position with the addition of words “through corrupt and
dishonest means” by the challenged amendments in Section 9(a)(v) of the NAB
Ordinance: It also has no substantial effect on the mode of proving the offence of
unaccounted assets possessed by a holder of public office beyond his known
sources of income; as when the prosecution succeeds in proving that the particular
assets of the accused are disproportionate to his known sources of income (legal
means) and are thus acquired through some corrupt and dishonest means, the
burden of proving the “fair and honest means” whereby the accused claims to have
acquired the same, being within his knowledge, are to be proved by him as per
provisions of Article 122, read with its illustration (b), of the Qanun-e-Shahadat.
(ii)-C Constitutionality of other amendments
25. The majority has declared ultra vires the Constitution the following
amendments also: (i) the addition of Explanation II to Section 9(v), which provides
that for the purpose of calculation of movable assets, the sum total of credit entries
of bank account shall not be treated as an asset but rather the bank balance of an
account on the date of initiation of inquiry may be treated as a movable asset and
that a banking transaction shall not be treated as an asset unless there is evidence of
creation of corresponding asset through that transaction; (ii) the omission of clause
(g) of Section 21, which omission has made applicable the provisions of the Qanune-Shahadat to documents or any other material transferred to Pakistan by a Foreign
Government in legal proceedings under the NAB Ordinance; and (iii) and the
addition of second proviso to Section 25(b), which provides that in case of failure
of accused to make payment in accordance with the plea bargain agreement
approved by the Court, the agreement of plea bargain shall become inoperative to
the rights of the parties immediately. With great respect, I would say that in
declaring these amendments as ultra vires the Constitution, the majority has not
explained how they infringe any of the fundamental rights or any other provision of
the Constitution, nor could the learned counsel for the petitioner point out in his
arguments any such infringement. These amendments being related to “criminal
law, criminal procedure and evidence” fall within the legislative competence of the
Parliament as per Article 142(b) of the Constitution and in no way take away or
abridge any of the fundamental rights in terms of Article 8(2) of the Constitution.
(iii) Challenged amendments (law made by the Parliament) do not take away or
abridge any of the fundamental rights
26. Despite my repeated questions during the prolonged hearings of the present
case, the learned counsel for the petitioner could not pinpoint which of the
fundamental rights guaranteed by the Constitution has either been “taken away” or
“abridged” by the Parliament by making the challenged NAB Amendment Acts.
Needless to mention that as per Article 8(2) of the Constitution, the Parliament
cannot make any law which “takes away or abridges” the fundamental rights
conferred by Chapter 1 of Part II of the Constitution (Articles 9-28) and if it does
so a High Court under Article 199 and this Court under Article 184(3) of the
Constitution can declare it to have been made without lawful authority (ultra vires)
and of no legal effect (void).
27. The learned counsel for the petitioner attempted to establish that the
challenged amendments have abridged the fundamental rights of the people of
Pakistan to life (Art. 9), dignity (Art. 14), property (Art. 24) and equality (Art. 25).
His argument was quite circuitous: that the challenged amendments have deprived
the people of Pakistan form holding accountable through criminal prosecution their
elected representatives for committing breach of trust with regard to public money
and property; that the challenged amendments operate to bring to halt or abort the
criminal prosecution of the holders of public offices for offences involving
embezzlement of public money and property; that the challenged amendments have
excluded certain acts of holders of public offices from the definition of the offences
of corruption and corrupt practices and have made the proof of others impossible;
that in absence of a strong accountability law, the holders of public offices would
continue to indulge in loot and plunder of public money and property which were to
be used for the welfare of the people of Pakistan in providing the basic necessities
of life, such as, health and education facilities, etc.; that the challenged
amendments have thus deprived the people of Pakistan from their fundamental
rights to life, dignity, property and equality.
28. This argument of the learned counsel for the petitioner have prevailed with
the majority in holding that the blanket immunity granted to the elected holders of
public offices 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. And this in
turn, according to the majority, affects the economic well-being of the State and
ultimately the quality and dignity of the people’s 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.
63
29. 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). The Constitution by itself provides only one mode to
hold the elected representatives accountable, that is, by exercising the right of vote
in the election. The mode of holding the 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 P.P.C.,
the P.C.A. 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.
Doctrines of exhaustion and functus officio, not applicable to legislative powers
30. ‘What Parliament has done, Parliament can undo.’
64 The legislative power of
Parliament does not exhaust by enactment of any law nor does Parliament become
functus officio by making a law, on a particular subject. The doctrines of
exhaustion and functus officio are not applicable to legislative powers.
65 A
legislature that has made any law is competent, as enunciated in Asfandyar,
66
to
change, annul, re-frame or add to that law. Even the legislature of today cannot
enact a law, as
held in Imran Tiwana,
67 whereby the powers of a future legislature or of its own
to amend a law are curtailed. Therefore, if Parliament can
enact the NAB Ordinance, it can also repeal the entire law or amend the same.
31. Further, holding a right to be included in or to be an integral part of a
fundamental right guaranteed in the Constitution, is a very serious matter that has
the effect of curtailing the legislative powers of Parliament in terms of Article 8(2)
of the Constitution. This matter, therefore, demands a thorough and in-depth
analysis of the relation of the claimed right with the fundamental right guaranteed
in the Constitution, on the basis of an objective criterion. With great respect, I
would say that the majority has assumed the right to accountability of the elected
holders of public offices through criminal prosecution as included in the
fundamental rights to life, dignity and property guaranteed by Articles 9, 14 and 24
of the Constitution, without making any discussion for establishing its close
relationship of such an extent with those fundamental rights that makes this right to
be an integral part of them.
32. No doubt, the fundamental rights guaranteed in the Constitution, an organic
instrument, are not capable of precise or permanent definition delineating their
meaning and scope for all times to come. With the passage of time, changes occur
in the political, social and economic conditions of the society, which requires reevaluation of their meaning and scope in consonance with the changed conditions.
Therefore, keeping in view the prevailing socio-economic and politico-cultural
values and ideals of the society, the courts are to construe the fundamental rights
guaranteed in the Constitution with a progressive, liberal and dynamic approach.
68
But this does 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 progressive, liberal and
dynamic approach in construing fundamental rights guaranteed in the Constitution
must be guided by an objective criterion, not by subjective inclination.
Objective criterion for recognizing new rights as fundamental rights
33. In this regard, the objective criterion, as articulated by Justice Bhagwati,
69
is
to see whether the claimed right is an integral part of a named fundamental right or
partakes of the same basic nature and character as the named fundamental right so
that the exercise of such right is in reality and substance nothing but an instance of
the exercise of the named fundamental right. A right is an integral part of a named
fundamental right which gives, in the words of Justice Douglas,
70
“life and
substance” to the named fundamental right. Further, the question whether a State
action (legislative or executive) constitutes an infringement of a fundamental right
is determined by examining its “direct and inevitable effect” on the fundamental
right.
71
34. The learned counsel for the petitioner could not explain how the right to
accountability of the elected holders of public offices through criminal prosecution
under the NAB Ordinance is an integral part of the fundamental rights to life,
dignity, property and equality or how it partakes of the same basic nature and
character as the said fundamental rights so that the exercise of such right is in
reality and substance nothing but an instance of the exercise of these fundamental
rights. Nor could he establish that the “direct and inevitable effect” of the
challenged amendments constitutes an infringement of these fundamental rights.
The “effect” of the challenged amendments on these fundamental rights portrayed
by him is so “remote and uncertain” that if such effect is accepted as an
infringement of the fundamental rights then there would hardly be left any space
and scope for Parliament to make laws on any subject; as all laws enacted by
Parliament would “ultimately” reach any of the fundamental rights, particularly
rights to life or property, in one way or the other through such a long winding
conjectural path of farfetched “in turn” effects. The acceptance of “remote and
uncertain effect” on a fundamental right as an infringement of that right, I am
afraid, would thus reduce to naught the principle of trichotomy of power which is,
as aforesaid, a ‘basic feature of the Constitution’, a ‘cornerstone of the Constitution,’
a ‘fundamental principle of the constitutional construct’, and ‘one of the
foundational principles of the Constitution’. Reference by the learned counsel for
the petitioner and reliance of the majority on the cases of Corruption in Hajj
Arrangements
72 and Haris Steel Industries,
73
submitted with respect, is misplaced
as the executive actions impugned therein had a “direct and inevitable effect”, not
“remote and uncertain effect”, on the fundamental rights of the people of Pakistan.
Conclusion: Petition is meritless
35. As discussed above, the learned counsel for the petitioner has 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, in terms of Article 8(2) of the
Constitution. I find the petition meritless and therefore dismiss it.
Locus standi of the petitioner
36. Before parting with this opinion, I want to bring on record my reservations
on the locus standi of a parliamentarian to challenge the constitutional validity of
an Act of Parliament. Parliament is a constitutional body, but being comprised of
the chosen representatives of the people of Pakistan it attains the status of a prime
constitutional body. Any action made or decision taken by the majority of a
constitutional body is taken to be and treated as an action or decision of that body
as a whole comprising of all its members, not only of those who voted for that
action or decision, such as a decision made by the majority of a Cabinet of
Ministers, the majority of a Bench of this Court or of all Judges in an
administrative matter, the majority of the Judicial Commission of Pakistan or the
majority of the Supreme Judicial Council, etc. Can any member of these
constitutional bodies who was in the minority in making that decision challenge the
validity of that decision in court? Not, in my opinion. The principle that decisions
taken by a majority of members in a constitutional body (like a parliament or
legislature) usually cannot be directly challenged in court by those in the minority
is rooted in the doctrine of parliamentary sovereignty and the separation of powers.
There is a clear division between the legislative, executive and judiciary branches.
This division ensures that each branch can function independently without undue
interference from the others. If the judiciary could easily overturn majority
decisions within a legislative body based solely on the objections of the minority, it
would disrupt this balance and infringe on the independence of the legislative
process. The principle of parliamentary sovereignty holds that the decisions of the
Parliament, when made according to its rules and procedures, are supreme. This
means that courts cannot typically interfere with the internal workings or decisions
of the Parliament. Democratic systems are often built on the principle of majority
rule. This ensures that decisions reflect the will of the majority while still
respecting the
rights of the minority. Allowing minority members to easily challenge majority
decisions would undermine this fundamental democratic principle.
37. The majority has referred to and relied upon the case of Ashraf Tiwana
74
to
repel the objection as to the locus standi of the petitioner, wherein this Court held
that the exercise of jurisdiction under Article 184(3) of the Constitution is not
dependent on the existence of a petitioner. But in doing so, the majority has missed
the point that Ashraf Tiwana was decided before the decision of a five-member
Bench of this Court in S.M.C. No.4/2021,
75 holding inter alia that the Chief Justice
of Pakistan is the sole authority by and through whom the jurisdiction of this Court
under Article 184(3) of the Constitution can be invoked suo motu, i.e., without the
“existence of a petitioner”. After this decision in S.M.C. No.4/2021, the question of
locus standi of a petitioner cannot so easily be brushed aside. However, as I have
found this petition even otherwise meritless, I leave these questions for full
consideration and authoritative decision in any other appropriate case.
Judges of the constitutional courts and Members of the Armed Forces are
accountable under the NAB Ordinance and the PCA
38. This case was heard on over 50 dates of hearing and during these prolonged
hearings a question was also raised as to whether the judges of the constitutional
court and the members of the Armed Forces enjoy exemption from the NAB
Ordinance. I find that the generally professed opinion that members of the Armed
Forces and the judges of the constitutional courts are not triable under the anticorruption criminal laws of the land, requires some clarification. To maintain the
said opinion, the reference is usually made to the case of Asfandyar
76
. This Court
in Asfandyar observed that the non-applicability of the NAB Ordinance to the
members of the Armed Forces and the judges of the Superior Courts is not
discriminatory as they are held accountable under the Army Act 1952 and under
Article 209 of the Constitution respectively. It appears that to secure the
independence of these important national institutions, the Court made this
observation in the context that if a member of the Armed Forces or a judge of a
Superior Court is alleged to` have committed an offence of corruption and corrupt
practices, he is at first to be proceeded against by his departmental authority; once
he is found guilty of such offence by his departmental authority and is removed
from his official position, only then can he be investigated and tried under the anticorruption criminal laws of the land, i.e., the NAB Ordinance or the PCA as the
case may be. If we do not read and understand the observations made by the Court
in Asfandyar in this way, the legal position would be clearly hit by the basic
constitutional value and the non-negotiable fundamental right of equality before
law. The other holders of public offices, in addition to facing the civil consequences
of their corruption and corrupt practices, are to suffer criminal punishment of
undergoing the sentence of imprisonment and the forfeiture of the unaccounted-for
assets, while the members of the Armed Forces and the judges of the constitutional
courts would go scot-free in this regard. After removal from the official position,
they would be set free to enjoy the assets accumulated by them through corrupt
means. Such reading and understanding of the observation of the Court would
allow the members of the Armed Forces and the judges of the constitutional courts
to be unjustly enriched and then allowed to retain this unlawful enrichment without
any accountability, this would make
the members of the Armed forces and the judges of the constitutional courts
untouchable and above the law; any such reading would be reprehensible and
revolting to the conscience of the people of Pakistan and bring the Court into
serious disrepute. 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.
Sd/-
Judge
MWA/I-11/SC Petition allowed.