Justice Syed Mansoor Ali Shah of the Supreme Court (SC) issued on Monday his detailed dissenting note on the majority judgment, delivered under former chief justice of Pakistan Umar Ata Bandial, declaring amendments to the anti-graft law unconstitutional.

In his note, Justice Shah stressed on the applicability of the National Accountability Ordinance (NAO) 1999 on superior courts and generals.

A five member-bench of the top court led by now CJP Qazi Faez Isa is due to take the federal government’s plea against the majority judgment tomorrow (Tuesday).

In a highly anticipated verdict, the apex court had in September 2023 allowed ex-prime minister Imran Khan’s petition challenging amendments made to the National Accountability Ordinance (NAO) 1999 by the Pakistan Democratic Movement coalition government, and ordered the restoration of corruption cases against public office holders that were withdrawn following the tweaks.

The apex court, with a majority of 2 to 1, ordered the reopening of all corruption cases worth less than Rs500 million that were previously closed against political leaders from various parties and public office holders.

The three-judge special bench, led by former CJP Bandial and comprising Justice Ijaz ul Ahsan and Justice Syed Mansoor Ali Shah had conducted 53 hearings on Imran’s petition before declaring the amendments null and void.

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In his dissenting note, Justice Shah has maintained that the Parliament “merely changed the forums for investigation and trial of the offences of corruption involving the amount or property less than Rs500 million” through the challenged amendment.

Under the amended law – now declared null and void – such graft cases against public officials would be investigated by anti-corruption investigation agencies and tried 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. Hence, my dissent,” stated Justice Shah.

According to Justice Shah, the 2 to 1 majority verdict is premised on the view that raising the minimum pecuniary threshold of NAB to Rs500m would excuse elected holders of public office from accountability laws and offer “blanket immunity” that offends Articles 9, 14, 23 and 24 of the Constitution.

The dissenting judge has contended that elected holders of public offices would still be liable to trial under the Prevention of Corruption Act 1947 (PCA) and the Pakistan Penal Code 1860 (PPC) for alleged offences of corruption and corrupt practices. No one would go home “scot-free”, observed Justice Shah, adding that this “aspect has been, with respect, seriously misunderstood by the majority”.

He further observed that changing the forum for investigation is a matter that falls within the exclusive domain of the legislature.

Justice Shah maintained that amendments challenged by the petitioner did not impact or take away fundamental rights guaranteed by the Constitution.

He further raised objection to non-applicability of the NAB Ordinance on the armed forces and the judiciary citing the judgment issued by the apex court in the case of Khan Asfandyar Wali versus Federation of Pakistan. Therein, “the Court made this observation in the context that if a member of the Armed Forces or a judge of a Superior Court is alleged to have committed an offence of corruption and corrupt practices, he is at first to be proceeded against by his departmental authority [under Army Act 1952 and Article 209, respectively]; once he is found guilty of such offence by his departmental authority and is removed from his official position, only then can he be investigated and tried under the anti-corruption criminal laws of the land, i.e. the NAB Ordinance or the PCA as the case may be,” wrote Justice Shah.

“If we do not read and understand the observations made by the Court in Asfandyar in this way, the legal position would be clearly hit by the basic constitutional value and the non-negotiable fundamental right of equality before law. The other holders of public offices, in addition to facing the civil consequences of their corruption and corrupt practices, are to suffer criminal punishment of undergoing the sentence of imprisonment and the forfeiture of the unaccounted-for assets, while the members of the Armed Forces and the judges of the constitutional courts would go scot-free in this regard.

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“After removal from the official position, they would be set free to enjoy the assets accumulated by them through corrupt means. Such reading and understanding of the observation of the Court would allow the members of the Armed Forces and the judges of the constitutional courts to be unjustly enriched and then allowed to retain this unlawful enrichment without any accountability, this would make the members of the Armed forces and the judges of the constitutional courts untouchable and above the law; any such reading would be reprehensible and revolting to the conscience of the people of Pakistan and bring the Court into serious disrepute.

“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,” stated Justice Shah.

Justice Shah also expressed reservations on the locus standi of a parliamentarian to challenge the constitutional validity of an Act of Parliament. Parliament is a constitutional body, but being comprised of the chosen representatives of the people of Pakistan it attains the status of a prime constitutional body, he maintained.

“Any action made or decision taken by the majority of a constitutional body is taken to be and treated as an action or decision of that body as a whole comprising of all its members, not only of those who voted for that action or decision, such as a decision made by the majority of a Cabinet of Ministers, the majority of a Bench of this Court or of all Judges in an administrative matter, the majority of the Judicial Commission of Pakistan or the majority of the Supreme Judicial Council, etc.

“Can any member of these constitutional bodies who was in the minority in making that decision challenge the validity of that decision in court? Not, in my opinion. The principle that decisions taken by a majority of members in a constitutional body (like a parliament or legislature) usually cannot be directly challenged in court by those in the minority is rooted in the doctrine of parliamentary sovereignty and the on a fundamental right as an infringement of that right, I am afraid, would thus reduce to naught the principle of trichotomy of power which is, as aforesaid, a ‘basic feature of the Constitution’, a ‘cornerstone of the Constitution,’ a ‘fundamental principle of the constitutional construct’, and ‘one of the foundational principles of the Constitution’.

“Reference by the learned counsel for the petitioner and reliance of the majority on the
cases of Corruption in Hajj Arrangements and Haris Steel Industries, submitted with respect, is misplaced as the executive actions impugned therein had a “direct and inevitable effect”, not “remote and uncertain effect”, on the fundamental rights of the people of Pakistan,” he observed.