Supreme Court of Pakistan Nullifies Controversial NAB Amendments: Impact and Implications

The Supreme Court of Pakistan confirmed former Prime Minister Imran Khan’s petition as admissible against the amendments in the National Accountability Bureau (NAB) Ordinance and nullified the amendments that were promulgated by the previous government of PDM. Imran Khan declared the Federation and NAB as parties in his petition against the amendment of NAB rules. A three-member bench headed by Chief Justice of Pakistan Justice Umar Atta Bandial pronounced this decision by a majority of two to one, while Justice Mansoor Ali Shah, who was part of this bench, wrote a dissenting note disagreeing with this decision. The Supreme Court said in its verdict that all the courts including NAB should decide on sending the pending cases to the competent courts in a week.

What were NAB Amendments

Under this legislation, many matters were removed from the jurisdiction of NAB and it was stated that these amendments will be considered to be effective from the commencement of the National Accountability Ordinance 1999.

The important amendment in this law claimed that NAB cannot investigate cases worth less than PKR 500 million. Apart from this, NAB can investigate a fraud case only when the number of victims is more than one hundred. With this ratification, the NAB Ordinance was also altered which means NAB can remand any accused for a maximum period of 14 days, but later this period was extended to 30 days by further amending it. After the approval of the law, NAB could not process federal, provincial, or local tax matters; the regulatory bodies operating in the country were also thrown out of NAB’s prerogative and dominion.

After these amendments, the tenure of the Chairman NAB and the Prosecutor General of the Bureau was also reduced to three years (previously it was four years) and it was also said that after the completion of the tenure of the Chairman, his deputy would be uplifted as acting chairman until the appointment of new full-fledged Chairman NAB.

How NAB Amendments Were Approved?

The bill related to 27 amendments in NAB laws was approved by the prior National Assembly and Senate in May 2022 during the PDM government, but the President of Pakistan Mr. Arif Alvi refused to sign this bill. After this, the coalition government of Pakistan Democratic Movement (PDM) approved these amendments in the joint session of the National Assembly and Senate in June 2022.

The PTI chairman Imran Khan challenged this lawmaking and requested the apex court to declare all these amendments null and void. The Supreme Court started hearing this petition in November 2022, after more than 40 hearings in the case, a three-member bench comprising Chief Justice Umar Atta Bandial, Justice Ijazul Hassan, and Justice Mansoor Ali Shah reserved its decision on September 6 this year, and verdict was announced on September 16th.

The Supreme Court in its judgment, invalidated the amendment related to the plea bargain in NAB cases and said that investigations conducted in various cases have also been restored which were halted previously. The apex Court in its decision also said that these amendments are against the laws in the Constitution related to public interest. The amendments made in various sections of the NAB Act are contrary to the fundamental rights of Articles 9, 14, 19A, 24, and 25 of the Constitution of the Islamic Republic of Pakistan.

Disagreeing with the majority decision on former Prime Minister Imran Khan’s petition against the NAB amendments in the Supreme Court, Justice Mansoor Ali Shah wrote, “The main question of the case is not the NAB amendments, but the supremacy of the Parliament. Parliament is the house of elected representatives of the 240 million people of Pakistan. This issue is about the importance of parliamentary constitutional democracy, the 3 pillars of the state, the division of powers, and it is about the limited jurisdiction of courts with unelected judges”.

Justice Mansoor Ali Shah wrote in his dissenting note “I received the decision of the majority of judges one night before its announcement. I politely say that I do not agree with this decision”. He wrote that due to lack of time, he would issue his detailed stance later and explain why he did not agree with this decision.

According to the dissenting note, Justice Mansoor Ali Shah said, “There is no clear violation of any law including fundamental rights in NAB amendments, the apex court decision is conflicting with the constitutional principle of exercise of powers by elected representatives, the decision is also inconsistent with the principle of separation of powers (trichotomy of power). It has not been determined how the accountability of parliamentarians is a fundamental rights issue, the majority decision of the NAB law itself is a violation of fundamental constitutional rights. It has not been taken into consideration that the legislative power of the Parliament is not going to end, it has also not been taken into account that the Parliament has the power to withdraw the law, therefore, disagreeing with the judgment of the fellow judges, I reject this petition”.

What will be the Outcome?

After the decision of the Supreme Court, the Tosha Khana (Gift house) reference against ex-president Asif Ali Zardari, former PM Nawaz Sharif, and Yusuf Raza Gilani has been restored. The LNG reference of former prime minister Shahid Khaqan Abbasi was transferred from the accountability court and the rental power reference against former prime minister Raja Pervez Ashraf was also returned, which has now been restored. Apart from this, the cases against former Prime Minister Shahbaz Sharif, former Prime Minister Shaukat Aziz, and former Finance Minister Ishaq Dar will also be reopened.

After the Supreme Court judgment, the National Accountability Bureau (NAB) will reopen cases of 450 former parliamentarians, current servicemen, retired officers, and several prominent private business individuals. This move comes as NAB reopens nearly 1,809 references, investigations, inquiries, and complaints, exposing corruption cases amounting to a staggering PKR 700 billion. According to details, those facing scrutiny include the ex-president of Pakistan, 6 former prime ministers, 14 chief ministers, 78 ministers, 176 members of the provincial assembly, and 114 government officials.