The majority judgment has fallen short, in my humble opinion, of recognizing the constitutional command that ‘the State shall exercise its power and authority through the chosen representatives of the people’ and recognizing the principle of trichotomy of powers, which is the foundation of parliamentary democracy. The majority has fallen prey to the unconstitutional objective of a parliamentarian, of transferring a political debate on the purpose and policy of enactment from the Houses of Parliament to the courthouse of the Supreme Court. Without setting out a clear and objective test for determining how the claimed right to have accountability of the parliamentarians is an integral part of any of the fundamental rights guaranteed under the Constitution, the majority judgment through a long winding conjectural path of far-fetched “in turn” effects have tried hard to “ultimately” reach an apprehended violation of the fundamental rights. The majority judgment has also fallen short of appreciating that what Parliament has done, Parliament can undo; the legislative power of the Parliament is never exhausted. If the Parliament can enact the NAB law, it can also repeal the entire law or amend the same—Justice Mansoor Ali Shah, short dissenting note (detail opinion to follow in Constitution Petition 21/2022 & C.M.A.5029/20220)
The Constitution of the Islamic Republic of Pakistan [“the Constitution”] envisages the principle of trichotomy of powers, ensuring the smooth operation of the state’s affairs. This principle is based on three separate branches of power: legislature, responsible for lawmaking; executive, tasked with law enforcement; and judiciary, obligated to interpret the law. The purpose of separation of powers within the Constitution is to prevent misuse of authority and establish a system of checks and balances.
However, in Pakistan, the doctrine of separation of powers is frequently ignored. The military establishment, primarily responsible for safeguarding the country from external threats, often becomes involved in the administration of state affairs, including foreign policy decisions and even influencing the formation of the governments. Similarly, the judiciary, as the second major actor, has at times encroached upon boundaries set by this principle, thereby diminishing the roles of the legislature and the executive. There have been numerous instances where the judiciary exceeded its jurisdiction, causing substantial harm to the country’s democratic institutions, economy, and overall political and governance structures. The courts have not only validated the unconstitutionally toppling of elected governments by military dictators, but have also gone beyond their designated roles by allowing them to make amendments to the Constitution.
In recent years, the exercise of power by the apex court through Article 184(3) of the Constitution has ignited contentious and heated debates. The past six years have seen the Supreme Court not only removing a sitting Prime Minister from office but also acting beyond its designated powers, intervening in the administrative and legislative functions of the executive and legislature. The just-retired Chief Justice of Pakistan (CJP), Umer Ata Bandial, faced widespread criticism from legal experts and media for constituting benches of “like-minded judges” to ensure “desired decisions”.
Recently, a debate triggered on two pivotal matters: amendments introduced in the National Accountability Ordinance, 1999 [NAB Ordinance], and changes proposed in regulating the CJP’s discretionary authority concerning bench formation and petitions filed under Article 184(3) of the Constitution, through Practice and Procedure Bill 2023.
The Supreme Court issued a stay order against this Bill, yet to become law. The matter has not yet been decided, though the former CJP used his discretionary powers for granting stay order by heading the bench of “like-minded judges”. On the contrary, when it came to the amendments proposed for NAB Ordinance, the Supreme Court rendered a majority verdict of 2-1 on September 15, 2023 striking down some of the amendments.
In various articles authored jointly and independently, we have consistently highlighted inconsistencies within the National Accountability Ordinance, 1999. This Ordinance, introduced by a military dictator, the late General Pervez Musharraf, with retrospective effect from 1985, raised concerns as it blatantly breached Article 12 of the Constitution, which safeguards against retroactive punishments that were being used to punish dissenting voices to protect the ruling establishment’s power base. Other than section 12, many provisions within the NAB Ordinance directly violated the Constitution.
Subsequently, the Asia Pacific Group’s Mutual Evaluation Report noted that the National Accountability Bureau’s performance resulted in the conviction of only one individual on money laundering charges from 2013 to 2018. It seemed that NAB’s primary focus was on apprehending individuals on weak grounds, detaining them for prolonged periods, and subjecting them to mental and physical coercion to obtain confessions and plea bargains.
Former CJP Jawad S. Khawaja referred to this practice as institutionalized corruption. Following the passage of the Constitution (Eighteenth Amendment) Act, 2010 [commonly called the 18th Amendment], many legal experts questioned the legality of the NAB Ordinance, as it was not included in the provisions of Article 270AA of the Constitution of Pakistan. However, it continues to be enforced by the courts entertaining NAB’s actions without examining their legitimacy.
The Supreme Court issued a stay order against this Bill, yet to become law. The matter has not yet been decided, though the former CJP used his discretionary powers for granting stay orders by heading the bench of “like-minded judges”. On the contrary, when it came to the amendments proposed for the NAB Ordinance, the Supreme Court rendered a majority verdict of 2-1 on September 15, 2023, striking down some of the amendments.
In various articles authored jointly and independently, we have consistently highlighted inconsistencies within the National Accountability Ordinance, 1999. This Ordinance, introduced by a military dictator, the late General Pervez Musharraf, with retrospective effect from 1985, raised concerns as it blatantly breached Article 12 of the Constitution, which safeguards against retroactive punishments that were being used to punish dissenting voices to protect the ruling establishment’s power base. Other than section 12, many provisions within the NAB Ordinance directly violated the Constitution.
Subsequently, the Asia Pacific Group’s Mutual Evaluation Report noted that the National Accountability Bureau’s performance resulted in the conviction of only one individual on money laundering charges from 2013 to 2018. It seemed that NAB’s primary focus was on apprehending individuals on weak grounds, detaining them for prolonged periods, and subjecting them to mental and physical coercion to obtain confessions and plea bargains.
Former CJP Jawad S. Khawaja referred to this practice as institutionalized corruption. Following the passage of the Constitution (Eighteenth Amendment) Act, 2010 [commonly called the 18th Amendment], many legal experts questioned the legality of the NAB Ordinance, as it was not included in the provisions of Article 270AA of the Constitution of Pakistan. However, it continues to be enforced by the courts entertaining NAB’s actions without examining their legitimacy.
The two-member bench in the same case further held:
“We as a relevant Organ of the State also feel that the growing perception that the process of C.P. No. 2243-L & 2986-L of 2019 64 accountability being pursued in the country at present is lopsided and is a part of political engineering is a dangerous perception and some remedial steps need to be taken urgently so that the process does not lose credibility. Recovery of stolen wealth of the citizenry is a noble cause and it must be legitimately and legally pursued where it is due but if in the process the constitutional and legal morality of the society and the recognized standards of fairness and impartiality are compromised then retrieval of the lost constitutional and legal morality may pose an even bigger challenge to the society at large in the days to come”.
Considering the arbitrary role played by the National Accountability Bureau (NAB), as underscored in several judgments of the highest court of the country and its involvement in political victimization, the legislature proposed amendments in 2022. These amendments addressed various aspects, including the law’s applicability, its commencement, exceptions, the definition of terms related to corruption and corrupt practices, the powers and authority of national accountability officers, disqualifications for electoral candidacy, the time frame for case resolution, NAB’s authority to make arrests during investigations, inquiries, and proceedings related to imprudent bank loans, among other matters. Definitions of “corruption”, “corrupt practices”, and “ostensible owner” as well as various other amendments needed further improvements to check the misuse and abuse of powers by NAB.
The highest court of the country while invalidating the amendments introduced in the NAB Ordinance, has not only violated the principle of separation of powers but also reinforced the institution’s arbitrary influence, a role it has been exercising since its inception. Furthermore, the reasoning provided for rejection of these amendments suggests that the esteemed judges have confirmed observation made by the Asia Pacific Group in their Mutual Evaluation Report, published in October 2019 which pointed out that the judiciary “has a low level of awareness when it comes to the elements of Money Laundering offense”.
Asia Pacific Group’s evaluation about the awareness of judiciary further gets validation while reading the grounds behind the validation/restoration of section 21(g) of NAB Ordinance, which relates to international cooperation requests for mutual legal assistance. This decision relies heavily on the precedent set in the case of Mobashir Hassan v Federation of Pakistan (PLD 2010 SC 265) while overlooking the Mutual Legal Assistance (Criminal Matters) Act, 2020, which serves the same purpose and grants authority to the central body for handling such information. Relying on a decade-old judgment and disregarding the newly enacted law speak volumes about the judges’ understanding about specific issues related to financial crimes.
Pakistan is currently facing grim challenges on multiple fronts. The path to addressing these challenges lies in upholding the principle of separation of powers in letter and spirit. Going beyond the prescribed constitutional powers and encroaching upon the domains of the legislature and executive branches have already caused extensive damage to the country. It is hoped that the new CJP will not only regulate the discretionary authority vested with his office but also ensure that the Supreme Court respects the powers vested in the legislature and the executive, refraining from undue interference in their domains and upholding the principles he learned during his entire judicial career, unlike many of his predecessors.
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Dr. Ikramul Haq, Advocate Supreme Court, specializes in constitutional, corporate, media and cyber laws, ML/CFT, IT, intellectual property, arbitration and international taxation. He holds LLD in tax laws with specialization in transfer pricing. He was full-time journalist from 1979 to 1984 with Viewpoint and Dawn. He served Civil Services of Pakistan from 1984 to 1996. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He is Visiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
He has coauthored with Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary and Master Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
He is author of Commentary on Avoidance of Double Taxation Agreements signed by Pakistan, Pakistan: From Hash to Heroin, its sequel Pakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax. He regularly writes columns for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.
Abdul Rauf Shakoori, Advocate High Court, is a subject-matter expert on AML-CFT, Compliance, Cyber Crime and Risk Management. He has been providing AML-CFT advisory and training services to financial institutions (banks, DNFBPs, investment companies, money service businesses, insurance companies and securities), government institutions including law enforcement agencies located in North America (USA & CANADA), Middle East and Pakistan. His areas of expertise include legal, strategic planning, cross border transactions including but not limited to joint ventures (JVs), mergers & acquisitions (M&A), takeovers, privatizations, overseas expansions, USA Patriot Act, Banking Secrecy Act, Office of Foreign Assets Control (OFAC).
The recent publication, coauthored with Huzaima Bukhari is: Pakistan Tackling FATF: Challenges & Solutions,
available at: https://www.amazon.com/dp/B08RXH8W46 and https://aacp.com.pk/
