The Supreme Court on Thursday reserved its verdict in the National Accountability Bureau (NAB) amendments case, granting the plaintiff and defendants a week’s time to submit further documents.
In 2022, the Pakistan Democratic Movement (PDM)-led government amended the National Accountability Bureau (NAB) Ordinance to restrict the watchdog’s powers. Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan challenged the amendments in court, alleging they were aimed at benefiting individuals and would “virtually eliminate” prosecution of white collar crimes committed by public office holders.
A three-member bench of the Supreme Court on Sept. 15, 2023 ruled in Khan’s favor and directed the restoration of all cases set aside by the amendments. In October, the government filed an appeal against the judgment, with a five-member bench led by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justices Athar Minallah, Aminuddin Khan, Jamal Khan Mandokhail, and Hasan Azhar Rizvi taking up the matter earlier this year.
Khan, currently incarcerated at Adiala Jail, requested to argue his own case and was allowed to appear before the bench via video-link. During previous hearings, he alleged he was being kept in solitary confinement and denied access to his legal counsel; charges the federal government rebutted on Thursday. According to records and images submitted in court by the government, Khan has access to an exercise bicycle; stretching belt; books of his choosing; a separate kitchen; a gallery for walking; a LED TV; air cooler and a study table. Jail records further showed that Khan has met over 400 people, including family members, lawyers and politicians, at Adiala Jail in 105 meetings from Sept. 28-May 30.
Providing the records, Attorney General for Pakistan (AGP) Mansoor Usman Awan said the court may appoint a judicial officer in the form of a commission to verify the government’s claims about Khan’s incarceration.
Khan’s arguments
Appearing before the bench via video-link, Khan alleged the imposition of an unannounced “martial law” in the country and regretted his conviction in three cases ahead of the Feb. 8 elections to prevent him from contesting. He also lamented the court’s decision to not provide a live broadcast of the case. He said it had “pained” him to see the ruling describe him as some kind of an “irresponsible and dangerous character who will abuse the occasion for point scoring or grandstanding.”
In response, the CJP said judges do not justify their judgments and Khan was free to appeal the ruling. He further directed the PTI founder to focus on the case before the bench and not comment on matters that were sub judice or could end up before the court in appeals.
In his arguments, Khan claimed the NAB chairman should be appointed by the Supreme Court to prevent abuse of power, adding he believed amendments in the NAB law were aimed at saving “certain leaders.”
Justice Jamal Khan Mandokhail observed there was no denying that NAB had been used to political victimize elected representatives but the solution lay with politicians and not courts. “Tomorrow you can come to Parliament and make a good accountability law,” he remarked, with Khan asserting NAB “always listens to the third umpire,” an apparent reference to the security establishment.
He sought to bolster his claims by submitting that NAB had recovered Rs. 295 billion from 2000-2017; Rs. 426 billion from 2017-2021; and just Rs. 300,000 in 2023. “The reason for less recovery was due to the pendency of NAB case in the Supreme Court,” observed Justice Mandokhail, adding jail always “matures” politicians.
Justice Minallah, meanwhile, observed that the NAB amendments did not nullify corruption cases, but rather forwarded them to relevant courts established under relevant laws. Addressing Khan, he said there was no reasonable ground to declare the NAB amendments against the public interest. He then asked the PTI founder if he still trusted the functioning of NAB.
“After what NAB did to me in 5 days, what credibility is left,” Khan responded, noting he was still facing NAB inquiries and admitting the anti-graft body needed “improvements.” He further claimed that he knew the amendments would help him legally, but claimed they would also make the country “bankrupt.”
As he continued arguing, the CJP directed Khan to not cite the Islamabad High Court (IHC) verdict in his cipher case, noting the appeal in the case might be filed in the apex court.
“Why did you not oppose the NAB amendments in Parliament,” asked Justice Rizvi of Khan, who claimed after his government was toppled as part of a “conspiracy,” he did not want to respond to the “conspiratorial government” in Parliament. CJP Isa then said Khan was discussing two separate matters. “On one hand you are talking about accountability and on the other you gave amnesty,” he said, referring to his government’s tax amensty. Khan sought to defend himself by saying the amnesty was aimed at whitening the black economy.
“Solve the problems by sitting in Parliament. This country needs to move forward,” the CJP remarked, pointing to Senator Farooq Naek and PTI’s Faisal Javed.
The court also took exception to a NAB report that claimed the recovery of $10 billion in the head of Reko Diq and asked the NAB additional prosecutor general whether this statement was “honest or dishonest.” The anti-graft body was also directed to furnish a fresh report with details of its budget for the last 10 years as well as its annual budgetary allocations.
Lawyers’ arguments
Earlier, at the outset of the hearing, Pakistan Peoples Party lawyer Farooq H. Naek told the court that various points of the judgment had been pointed out in the written submissions. “I have written my arguments on the SC judgment,” he said, with the CJP inquiring if he was supporting the decisions following the submissions to the court.
Naek said he supports Justice Mansoor Ali Shah’s dissenting note. “Are you following the arguments of Makhdoom Ali Khan?” asked the CJP, referring to the federal government’s lawyer. “My position is the same but the arguments are my own,” said Naek in response.
Khawaja Haris, representing Imran Khan, was then called to assist the SC in the appeals.
Justice Minallah questioned if the way NAB arrested accused was correct. “Many amendments in NAB are good. But we were neither satisfied with 90-day remand nor the arrests,” said the lawyer, maintaining the “good” amendments were not challenged.
Haris recalled NAB was introduced by ex-president Pervez Musharraf, adding a similar law was introduced by the Nawaz Sharif government prior to that. The CJP asked why the PTI government did not restore the NAB Act. Apparently the PTI government only wanted the accountability of politicians, remarked the CJP, noting it added no amendments related to the judiciary and institutions or individuals on which the law does not apply.
“All major political parties were in government from 1999 to 2018,” said Haris, with the CJP noting only the PTI was a party to the case and as such its conduct must be questioned. “The amendments were challenged in a specific context. Corruption affects the basic rights of people and looting people’s money is a violation of fundamental rights,” said Haris.
Justice Mandokhail then asked if only NAB were authorized to determine alleged corruption. Justice Minallah similarly questioned why NAB’s authority only extended to elected public office holders and not unelected ones. “Do you just want political accountability?” asked the CJP.
Haris responded by saying decisions are made by elected representatives and their implementation is done by the bureaucracy. The CJP then asked if Haris believed Justice Shah’s dissenting note was correct. “In my opinion, Justice Mansoor Ali Shah’s note was not correct,” he responded.
Justice Minallah then asked Haris which amendments were challenged by his client. “The amendments in Section 2 were challenged to apply retroactively. The amendments in Section 4, 16, 21-G and Section 25-D were challenged,” said Haris.