Members of the armed forces & judges of constitutional courts were ‘fully liable’ under accountability laws: Justice Syed Mansoor Ali Shah

ISLAMABAD, Oct 30 (SABAH): Senior judge of the Supreme Court of Pakistan Justice Syed Mansoor Ali Shah on Monday observed that members of the armed forces and judges of constitutional courts were “fully liable” under accountability laws.

Justice Syed Mansoor Ali Shah made this observation in a dissenting note for the apex court’s September 15 verdict wherein it struck down changes to the accountability laws and ordered the restoration of corruption cases against public office holders. The dissenting note of Syed Mansoor Ali Shah consists of 27 pages.

A three-member bench comprising then-chief justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Shah had announced the verdict on PTI Chairman Imran Khan’s 2022 petition challenging amendments made to the National Accountability Bureau’s (NAB) laws.

Justice Bandial and Justice Ahsan had declared Imran Khan’s plea to be maintainable while Justice Shah had disagreed with the majority verdict, saying that not just the corruption cases but inquiries and investigations should also be restored.

In the hearings towards the end of the case proceedings, Justice Shah had repeatedly urged for a full court to hear the case, citing the then-frozen Supreme Court (Practice and Procedure) law.

The top court is now set to hear the first-ever intra-court appeals (ICAs) against the majority judgment, which have been filed by the federal government and former SSGCL managing director Zuhair Ahmed Siddiqui.

In the detailed note issued on Monday, Justice Syed Mansoor Ali Shah concluded that Imran Khan’s petition was “meritless”.

He noted that the petitioner’s counsel “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”.

On the matter of members of the armed forces being held accountable, which had previously been discussed in multiple hearings of the case, Justice Shah noted that the “generally professed opinion that members of the armed forces and the judges of the constitutional courts are not triable under the anti-corruption criminal laws of the land, requires some clarification”.

He highlighted that such an understanding would “make the members of the armed forces and the judges of the constitutional courts untouchable and above the law”.

The same would be “reprehensible and revolting to the conscience of the people of Pakistan and bring the court into serious disrepute”, the judge added.

“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,” he stated.

Stating the reasons for dissenting the majority verdict, Justice Shah said that even after the challenged amendments, public office holders were “still triable under the Prevention of Corruption Act 1947 (PCA) and the Pakistan Penal Code 1860 (PPC) 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,” Justice Shah noted.

Explaining his observation later, he recalled that the majority judgment had “found that the elected holders of public offices do not fall within the definition of ‘public servant’”.

It had “failed to fully examine the definition of the expression ‘public servant’ provided in the latter part of clause ninth of Section 21, PPC,” the judge added.

Listing bribery, embezzlement, kickbacks, nepotism and cronyism, extortion, money laundering, shell companies, fraudulent land deals, insider trading, and tax evasion as the means to commit corruption, Justice Shah said all these actions were triable for the offence of corruption not only under the PPA and the PPC but also the “under the Income Tax Ordinance 2001, the Anti-Money Laundering Act 2010 and the Elections Act 2017, etc”.

He further observed that the “challenged amendment of adding the threshold value of Rs500 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 Rs500m”.

The judge highlighted that the matter fell “within the exclusive policy domain of the legislature (Parliament)”. He noted that it was “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”.

Justice Shah also pointed out that the omission of Section 14 (presumption against accused accepting illegal gratification) of the NAB Ordinance made through the majority verdict made “no substantial effect in view of the provisions of Article 122 of the Qanun-e-Shahadat 1984”.

On the addition of the words “through corrupt and dishonest means” in section 9(a)(v) of the NAB Ordinance, the apex court judge stated it also had “no substantial effect”.

The SC judge further noted that the NAB amendments did “not take away or abridge any of the fundamental rights guaranteed under Articles 9 (security of person), 14 (inviolability of dignity of man, etc), 23 (provision as to property), 24 (Protection of property rights) and 25 (equality of citizens) of the Constitution”.

Terming the petitioner’s counsel’s argument as “quite circuitous”, Justice Shah observed: “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).”

He wrote that the “mode of holding the elected representatives accountable for the offences of corruption […] has not been provided by the Constitution but by the sub-constitutional laws — the PPC, the PCA and the NAB Ordinance”, which he said the Parliament had the power to enact, amend, modify or repeal.

Justice Shah noted that the fundamental rights guaranteed in the Constitution were “not capable of precise or permanent definition” and that the “courts are to construe the fundamental rights guaranteed in the Constitution with a progressive, liberal and dynamic approach”.

However, he observed that it did 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 acceptance of ‘remote and uncertain effect’ [of the changes to the NAB laws] on a fundamental right as an infringement of that right, I am afraid, would thus reduce to naught the principle of trichotomy of power,” Justice Shah added.

Justice Shah observed that the courts should decide cases as per the law and Constitution even if the public sentiment is against them, highlighting the principle of “trichotomy of power,” saying no state organ can claim superiority over the other.

“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,” wrote Justice Shah.

Raising objections to the majority verdict, the apex court judge said the country’s 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,” he added.

The senior judge further said all state pillars enjoyed 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”.

On Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan’s objections to the amendments, Justice Shah said 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.

“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,” read the note.

Justice Shah said the parliament through the challenged amendment, merely changed the forums for investigation and trial of the offences of corruption involving the amount or property less than Rs500 million.

After the amendment, he said the cases of alleged corruption against the holders of public offices that involve the amount or property of a value less than Rs500 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 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.”