Supreme Court’s Judgment in 2001 Regarding National Accountability Bureau
After the military takeover in 1999, the Chief Executive of Pakistan, General Pervez Musharraf decided to promulgate an Ordinance, briefly, to eradicate corruption and corrupt practices and bring back looted money from the plunderers. To meet this purpose, the National Accountability Bureau Ordinance 1999 was promulgated, which repealed the prevalent accountability law at the time, the Ehtesab Ordinance. After the Ordinance was promulgated, many petitions were filed against the vires of the said Ordinance under Article 184(3) of Constitution of Pakistan 1973, which were dealt with by the apex court.
This paper aims to briefly discuss the points on which the vires of the Ordinance was challenged, the stance of the federation, and the directions given by the apex court for amending the provisions of the said Ordinance found to be ultra vires to the supra law [PLD 2001 Supreme Court 607].
As the petitions were filed under Article 184(3), the question of maintainability arose as a preliminary one. Representing the federation, Mr Abid Hassan Minto argued that the petitioners who were facing trials had an alternative, adequate remedy by way of appeal against conviction [if any], while the people who were not under trial had no locus standi. However, the court overruled those preliminary objections by declaring them fallacious and maintained the petitions on the ground that it was the duty of the court to determine questions raised in the petitions as to promulgation and effect of the said Ordinance and decide whether fundamental rights had been affected prejudicially.
Before examining the merits of the case, the court had to deal with another preliminary objection raised by the petitioners as to whether the legislation in question exclusively fell within the ambit of the provincial legislature and whether the federal legislation by promulgating the Ordinance encroached upon provincial autonomy. The federation disagreed and asserted that it had the power to make laws as to the establishment of courts which would function regardless of being in federal or provincial areas (reliance was placed on Article 175, Entry 55 of Part 1 of the Federal Legislative List and Entries 1, 2, 4, 46 and 47 of the Concurrent Legislative List). The court held that the said Ordinance was rightly promulgated and was neither ultra vires to the Constitution nor was affected by provincial autonomy. The court observed that Section 6 of the Code of Criminal Procedure provided for “criminal courts and any other court established by or under any other law”, hence, the federal government was allowed to make a law providing for special courts and their procedure.
Secondly, the scheme of Article 175 and 203 of the Constitution validated the establishment of such courts by the federal government, provided that they were under the supervision and control of the High Court. Looking back at history, the court further stated that it was not the first time that the federal government had promulgated laws which established courts in the provinces (the enforcement of Anti-Terrorism Act being a classic example).
Other Issues Addressed in the Judgment
One such issue was whether the Ordinance created a parallel judicial system and violated the principle of trichotomy of powers by neglecting the provisions of Article 175, 202 and 203 of the Constitution and the rule laid down in the Mehram Ali case which provided that, “All courts established under Article 175 would be subordinate to the superior judiciary.” On that point, the federation contended that provisions of the impugned Ordinance regarding appointment and removal of judges, appeals before the High Court, transfer of cases and framing of rules as to the enforcement of the Ordinance involved the superior judiciary i.e. Chief Justice of Pakistan and Chief Justices of High Courts, hence, it neither ignored the principle laid down in the Mehram Ali case nor was it hit by the doctrine of trichotomy of powers (reliance was placed on Section 5, 16, 32 and 34 of the Ordinance). The court partially agreed with the federation and held that even though the said provisions were in compliance with the precedent of the same court, the provision (section 5(h)) permitting the employment of retired judges of High Courts and District Courts was impinging on the independence of judiciary.
Additionally, the power to release an accused was a judicial power and vesting such power with the National Accountability Bureau’s Chair on the conditions determined by him was unwarranted. It was held that such powers were to be exercised by the courts established under Article 175 and subject to the supervisory jurisdiction of the High Court. The court further directed that all the judges of accountability courts should have been ‘serving’ District and Sessions Judges qualified to be judges of the High Court and appointed after consultation with the concerned High Court’s Chief Justice, and that their appointment to the Accountability Court should not have barred their elevation to the High Court as judges. The present non-serving judges are given two options, either to serve on the last salary drawn at the time of their retirement as a District Judge or to dispense their service by taking three months’ salary at once. Their transfer and removal shall occur only on the ground of misconduct or physical incapacity to carry on, as determined by the High Court concerned. They shall be remunerated as their counterparts in the service of courts established by the federal government and not as judges of the High Court, while remuneration already released cannot be recovered, subject to the doctrine of past and closed transactions.
As far as the bar on granting bail by the High Court was concerned, Section 9 of the Ordinance was declared ultra vires on the ground that it abridged the power of superior courts to grant bail to the accused, relying on the Zafar Ai Shah case in which it was held that, “Powers of the superior courts remain intact to their full extent notwithstanding anything contained in any legislation by the Chief Executive”. The court further held that it was well settled law that the superior courts had power to grant bail (under Article 199 of the Constitution) independent of any statutory source (i.e. the Code of Criminal Procedure). (The said provision of the Ordinance was to be amended correspondingly).
Another issue addressed by the apex court was whether the Ordinance was taking effect retrospectively, that is from the 1st of January, 1985, in violation of Article 12 of the Constitution. Before we discuss the court’s ruling, it is pertinent to note that repayment of loan is a matter of civil nature and by the promulgation of the Ordinance such default had been converted into an offence under section 5 of the said Ordinance. The petitioners argued that the conversion of such default into an offence of willful default retrospectively was against fundamental rights envisaged under Articles 12 and 18 of the Constitution. Disagreeing with the petitioners, the court responded that the offence of willful default committed by the accused was in the nature of a continuing breach, hence, the cause of action had been recurring. As far as the plea taken by the petitioners was concerned, whereby entering into a contractual obligation before the promulgation of the impugned Ordinance could not be converted into an offence, the plea was rejected by the court on the grounds that extraordinary circumstances had been prevailing in the country. The court relied on the Syed Zafar Ali Shah case (PLD 2000 SC 869) wherein the court had allowed the Chief Executive to take all steps necessary to accomplish the objectives referred in his speech and bring back looted money which had also been one of the main objectives declared in his speech dated October 17, 1999.
Moreover, the court issued significant directions for probing into and prosecuting such offences by first requiring a thirty-day statutory notice to be served to the alleged defaulter and an additional seven-day notice to be served to satisfy the Governor of State Bank as to the accused’s innocence before launching any prosecution; in the second phase, any settlement arrived at with the defaulter to be subject to the finality of the Accountability Court; and finally after due investigation, if no case had been established prima facie against the alleged person, the report of such investigation to be submitted to the Accountability Court which should finalize the matter.
Furthermore, the petitioners pleaded that the power of the NAB Chair to freeze assets during pendency of the investigation was excessive delegation. The federation rebutted that it was an interlocutory measure which provided for the freezing of assets for only 30 days and that such a measure was also provided for by other laws (reliance was placed on Order XXXIX of CPC and Section 37 of Control of Narcotic Substances Act 1997). But the power of the NAB Chair to seize property of the accused was held to be a partially excessive delegation of the power and its duration was curtailed to fifteen days. Now an order may be passed by the NAB Chair to freeze properties, which shall remain in force for only 15 days unless the court confirms such order. The court further stated that the restriction upon the appellate court to deal with the matter of freezing assets during appeal, by virtue of clause (f) of Section 12, until final disposal, impinges on the independence of judiciary. The court held that the appellate court shall pass an appropriate order with regards to seizure in case an appeal is pending before it. Furthermore, Section 13, which barred appeal against the dismissal of objection against the freezing of property, was directed to be amended while the High Courts were authorized to hear appeals on the subject matter.
Under the impugned Ordinance, the onus of proof had been placed on the accused over which the petitioners accused contented that according to a well settled principle, those alleging must prove the case beyond reasonable doubt, thus the provision (section 14(d)) was against settled jurisprudence. On this issue, the court held that even though placing the onus on the accused was not an alien concept as it had also been incorporated in some other laws (such as Section 34 of Drugs Act; Section 178-A of Seas Custom Act; Section 9 of Passport Act, etc.), the prosecution should be directed to first establish a reasonable case against the accused to the satisfaction of the Accountability Court, and then shift the burden of proof to the accused to rebut the presumption of guilt. The reason behind such a direction was to provide a smooth environment to policy-makers without any unreasonable apprehension. This provision may not be too bad in the eyes of the law but it would certainly be counterproductive in relation to the principle of good governance.
The issue touching upon procedural law was whether dispensing with the provisions of Code of Criminal Procedure by the Accountability Court was ultra vires and violative of the the constitutional provision of due process of law as envisaged under Article 4 of the Constitution, as argued by the petitioners. The court found no force in this argument and held that the provision (section 17 (c)) of the Ordinance authorizing exclusion of the provisions of CrPC was not ultra vires. The powers of the Accountability Court to exclude such provisions would be governed by the principle of “reasonableness” as enshrined under section 24A of the General Clauses Act. The Accountability Court, while departuring from the provisions of CrPC should record reasons and such reasons should be justiciable.
Deliberating on the point of the 90-day remand by NAB, the court, denying the plea of petitioners, held that it did not violate Article 10 of the Constitution. In addition, the court sustained the provision related to the 90-day remand for the reason that the provisions of CrPC were only applicable where they were not in conflict with the NAB Ordinance, so the provisions under CrPC providing for a 15-day remand were not applicable in the matter before the court. But to balance out the same, the court further instructed that the Accountability Court should not remand an accused exceeding fifteen days at a time. While remanding an accused, reasons should be recorded and a copy of the order should be forwarded to the concerned High Court. In case of special provisions for accused females, the court held that even though they were not included in the Ordinance, the provisions of Criminal Procedure Code (relating to remand, etc.) should apply as they had not been expressly excluded and did not contravene the Ordinance.
The power to transfer cases from one court to another had only been vested with NAB authorities, which was argued to be ultra vires to the Constitution. The court held that such a provision which only provided the prosecution the right to transfer cases and denied the same to the accused did violate access to justice for “all” (see Article 4 of the Constitution) and directed to amend the said provision of the Ordinance (Section 16A) accordingly (reliance was placed on the Al-Jehad Trust Case where it was held that the right of access to justice included the right to be treated in accordance with the law, to have a fair trial and to have an impartial court or tribunal).
Other directions of the Court on Different Provisions
- Disqualifying a convict from contesting elections and holding public office for a period of 21 years as provided under section 15(a) was held to be excessive and was reduced to a spell of 10 years reckoned from the date when the convict had been released after serving his or her sentence.
- Prohibiting the Accountability Court to take cognizance of the case other than by the NAB Chair’s reference was held not to be an excessive delegation of power as the offences in question were of a special nature. So it was quite reasonable to hold that the investigating agency should have first thoroughly inquired into the alleged offence and then decided whether or not to refer the caser (see Section 18 of the Ordinance).
- Regarding plea bargains, the court asserted that since it was in the nature of a plea bargain to compound an offence, it should have been subject to the approval of the court. The court then ordered the provision (section 25) to be amended accordingly.
- The provision prohibiting ‘any court’ to stay the proceedings pending before the Accountability Courts was declared ultra vires. The court held that it was a well settled principle that the constitutional jurisdiction vested in High Courts (see Article 199 of the Constitution) could not be abridged or taken away, hence an amendment in the provisions was ordered accordingly (see Section 32 of the Ordinance).
- Another issue was based on the plea concerning a violation of the equality clause and the employees of NAB not being treated equally. The court held that two categories of personnel had been working under NAB: the first category dealt with individuals who had been directly appointed and were not subject to the Civil Servants Act; the second category comprised of persons who were civil servants and had been deputed to NAB, and subject to the Civil Servants Act. So the plea raised by the petitioner regarding the equality clause (Article 25) of the Constitution being violated was rejected for the reason that there were two different classes of employees.
- The court gave the following directions as to the appointment of the Prosecutor General:
“…shall be appointed by the President in consultation with Chief Justice of Pakistan and Chairman NAB, for not less than two years. And removed from office only on the grounds upon which Judge Supreme Court can be removed. In case of resignation, he shall address to President. His remunerations shall in no case exceed those of Attorney-General Pakistan. He shall not hold any other office concurrently and not allowed to deal with private cases as well.”
(See Section 8(a))
- The court abridged the power of the NAB Chair to withdraw cases and pronounced that the Chair could not withdraw from the prosecution unless permitted by the Accountability Court.
- Section 5(m) of the Ordinance, defining “public office”, was assailed by the petitioner on the grounds that it did not include the armed forces and was thus discriminatory in nature. The court held that exclusion of the armed forces did not make the provision discriminatory as Article 8(3)(a) of the Constitution itself provided that the said article did not apply to members of the armed forces. The exclusion, however, did not mean that they were immune from accountability. They were subject to the Pakistan Army Act which itself provided for the prosecution of corruption and corrupt practices.
- The court most importantly held that,
“Care must be taken by the Accountability Courts to ensure that the credibility of the judicial processes not undermined in any manner whatsoever.”
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