SC ruling on NAB laws fails to appreciate parliament's legislative power: Justice Shah

Supreme Court in majority 2-1 verdict strikes down NAB amendments passed by previous PDM-led government

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Senior Supreme Court judge Syed Mansoor Ali Shah. — Supreme Court of Pakistans website
Senior Supreme Court judge Syed Mansoor Ali Shah. — Supreme Court of Pakistan's website

  • Justice Shah issues dissenting note in NAB amendments case.
  • Says he doesn't agree with ruling of apex court on PTI cheif's plea
  • "If parliament can enact NAB law, it can also repeal it." 

As the Supreme Court (SC) struck down amendments made to the National Accountability Bureau (NAB) laws in a majority 2-1 verdict, Justice Mansoor Ali Shah remarked that the apex court's verdict failed to appreciate parliament's legislative power.

A three-member bench of the SC on Friday approved Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan's petition challenging amendments made to the country's accountability laws during the tenure of the previous Pakistan Democratic Movement (PDM)-led government.

According to the verdict, the petition against NAB amendments was declared admissible by the majority decision, restoring all closed enquiries filed with the anti-graft body.

However, Justice Shah issued a dissenting note in the NAB amendments case.

"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," Justice Shah said in his dissenting note.

"If the Parliament can enact the NAB law, it can also repeal the entire law or amend the same," the dissenting note issued by the SC quoted the justice as saying.

He said that he does not agree to it but he couldn't fully record the reasons for his dissent due to paucity of time.

Explaining briefly his reason for dissenting to the two other judges of the bench, Justice Shah said that the case was about the constitutional importance of parliamentary democracy and the separation of powers between three organs of the State.

"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.

"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," Justice Shah stated.

Dismissing the petition on his behalf, he expressed intention to record his reasons in detail later.

The verdict

The three-member bench held more than 50 hearings on PTI chief Khan's petition against the amendments and reserved the judgment on the hearing on September 5.

CJP Bandial, who is retiring tomorrow (September 16), had promised that a "short and sweet verdict" would be announced before his final day as the top judge.

The apex court struck down some amendments made to the National Accountability Ordinance (NAO), 1999.

The verdict also restored graft cases against public office holders that were closed down following the amendments.

According to the verdict, the petition against NAB amendments was declared admissible by the majority decision, restoring all closed enquiries filed with the anti-graft body.

The apex court ordered restoring all graft cases worth less than Rs500 million that were closed down against the political leaders belonging to different political parties and public office holders and declared the amendments void.

Furthermore, the court directed the NAB to return all records related to cases to relevant courts within seven days.

The verdict on Khan's appeal further added that the NAB amendments under question affected the rights of the public listed in the Constitution.

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

These include the Toshakhana reference against Pakistan Muslim League-Nawaz (PML-N) Supremo Nawaz Sharif, Pakistan Peoples Party Co-Chairman Asif Ali Zardari and former prime minister Yousuf Raza Gilani, along with the LNG reference against former prime minister Shahid Khaqan Abbasi and the rental power reference against former prime minister Raja Pervez Ashraf.

NAB amendments

The NAB amendments not only reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years, but also placed all regulatory bodies functioning in the country out of NAB’s domain.

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

Challenging the amendments, Khan approached the apex court and petitioned that the amendments be struck down on grounds that they were unconstitutional.

The petition argued that amendments to sections 2, 4, 5, 6, 25 and 26 of the NAB law are against the Constitution, along with amendments made to sections 14, 15, 21 and 23.

Furthermore, Khan argued that amendments in the NAB law are contrary to the fundamental rights of Article 9, 14, 19, 24, 25.

All these amendments made in the NAB law should be declared null and void, the PTI Chairman PTI had requested.

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

Both the federation and NAB were made parties in the petition.