Highlights from Supreme Court’s verdict - 2
Dawn.com takes a look at how the court verdict impacts the aforementioned sections:
Section 2s of the First and Second Amendments
Change implemented:
Section 2 of the First Amendment inserted sub-sections (a)-(f) into Section 4 of the NAB Ordinance and Section 2 of the Second Amendment added sub-section (g) in Section 4 of the NAB Ordinance, thus excluding certain holders of public office from the application of the NAB Ordinance and thereby limiting its effect.
Reasoning: The order said that from comparing the unamended and amended versions of Section 4 of the NAB Ordinance, “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.”
Referring to the rationale provided for the changes, the order said the court appreciated the “efforts of Parliament to address and rectify what has long been regarded unguided discretion of the NAB authorities”.
It added that the two sections were clearly 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,” the order reads.
It said the two sections of the First and Second Amendments thus affected fundamental rights — Articles 9, 14, 23 and 24 of the Constitution — and raised problems regarding the accountability of elected public office holders.
The order elaborated that under the two sections, persons in the service of Pakistan may still be investigated and prosecuted under the Prevention of Corruption Act, 1947 for the offences listed in Section 9a(i-v) of the NAB Ordinance but elected public office holders will not be amenable to the jurisdiction of any other accountability for the offence of corruption and corrupt practices.
Status: Declared void for elected public office holders from the date of commencement of the 2022 amendments, intra vires (valid) for people in the service of Pakistan pertaining to offences in Section 9a(i-v) of the NAB Ordinance and ultra vires (invalid) for people in the service of Pakistan pertaining to offences in Section 9a(vi-xii) of the NAB Ordinance
Sections 8 and 10 of the First Amendment
Change implemented:
Section 8 inserted new ingredients in the offence under Section 9(a)(v) of the NAB Ordinance and added explanations thereto. Section 9(a)(v) criminalises the act of holding assets beyond means.
Section 10 deleted Section 14 of the NAB Ordinance which provides evidentiary presumptions that may be drawn against the accused.
Reasoning: The order said Section 8 “significantly altered” Section 9 of the NAB Ordinance which lays down various categories of the offence of corruption and corrupt practices.
The order said that apart from reducing the circumstances in which the offence of assets beyond means could be made out against the holder of a public office, the First Amendment section had made another material change in Section 9a(v) of the NAB Ordinance through the obligation on NAB to prove that an accused had accumulated substantially disproportionate assets through corrupt and dishonest means.
It added that this element was previously not a part of Section 9a(v). “This is evident from the ingredients of Section 9a(v) which were well-established in the jurisprudence of the court” and required NAB to prove the accused was a holder of public office; the nature and extent of the pecuniary resources of the property found in the accused’s possession; the known sources of income of the accused and the resources or property found in the possession of the accused were objectively disproportionate to their known sources of income.
“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 9a(v) the First Amendment has amalgamated two separate offences into one. As a result, the original offence contained in Section 9a(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 9a(v) and the remaining offences in the NAB Ordinance have been omitted by Section 10 of the First Amendment. The presumption relevant to Section 9a(v) of the Ordinance existed in Section 14(c),” the order reads.
It further said that the insertion of the second explanation to Section 9a(v) removed entries in bank statements from the scope of assets whereas banking transactions could only be regarded as assets if there was 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,” the order explained.
The court verdict noted that while the changes from Sections 8 and 10 of the First Amendment might appear innocuous in nature, their effect both individually and collectively had “actually rendered the offence of corruption and corrupt practices in the category of assets beyond means pointless”.
It further said that if accused persons could not be held to account for owning or possessing assets beyond their means, the natural corollary would be that public assets and wealth would 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 order said.
Meanwhile, the court order points out that no similar or corresponding changes were made to other accountability laws.
The verdict reiterated that people in the service of Pakistan could be tried under the Prevention of Corruption Act, 1947 for the offence of corruption and corrupt practices even if they stood excluded from NAB’s jurisdiction 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 9a(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 9a(v), persons in the service of Pakistan will still have to go through the rigours 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.
Status: Sections 8 and 10 for elected public office holders declared invalid to the extent that the phrase ‘through corrupt and dishonest means’ used in Section 9a(v), along with its Explanation II, struck down from the NAB Ordinance from the date of commencement of the First Amendment for being unworkable.
Section 14 restored in its entirety to the NAB Ordinance for public office holders from the date of commencement of the First Amendment.
Amendments in Section 8 to NAB Ordinance Section 9a(v) upheld in their entirety for people in service of Pakistan since they can be tried for the same offence under the Prevention of Corruption Act, 1947.
Section 10 of the First Amendment struck down from the date of commencement of the First Amendment and Section 14(a), (b) and (d) stand restored to the NAB Ordinance for people in service of Pakistan because such presumptions do not exist in any other accountability law.
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The Journal of America Team:
Editor in chief:
Abdus Sattar Ghazali
Senior Editor:
Prof. Arthur Scott
Special Correspondent
Maryam Turab
