The powers of Parliament to legislate are also not immune from a judicial and legal review under the constitution. A legislation by Parliament can be challenged before the superior courts.
No country can prosper without having the zero tolerance against corruption and corrupt practices. Unfortunately, Pakistan’s standing in corruption in world index is very poor. Despite passing of 75 years of independence, we as a nation have not been able to decide a common and comprehensive legislation with firm commitment and strong implementation mechanism for controlling corruption in the country and successfully prosecuting those involved in this menace.
The Parliament has absolute constitutional mandate to pass such a legislation as a new law or it can introduce amendments in existing laws with the majority of its members. In the present scenario, the Parliament made 27 major amendments in NAB Ordinance 1999 in August 2022. Even it was returned by the president to the Parliament with his observations, but despite that, the Parliament again passed it at a joint session as per constitutional process under Article 75 (2). Now these newly introduced amendments in NAB laws have become effective.
However, the absolute power of Parliament to legislate is also not immune from a judicial and legal review under the constitution. The legislation of Parliament could be legally checked and challenged before the Superior Court under a judicial review and by agitating the grounds on violations of the provisions of fundamental rights prescribed in the constitution, The superior judiciary has the legal power and mandate under the constitution to strike down any legislation or amendments against the violation of fundamental rights prescribed in the constitution. Earlier many laws or amendments introduced by the Parliament or even by the provincial assemblies were struck down by the superior judiciary.
The recent amendments made to NAB Ordinance have impacted different provisions of NAB law, both on procedures and trials, including the exclusion of jurisdiction of NAB on certain categories of offences. Interestingly, the parliament has given the effect of new amendments both on the pending proceedings before NAB and courts with retrospective effect from 1985 to onwards as per Section (1) of Sub Section (2) of the amendment in NAB Ordinance.
A number of amendments introduced by the previous government have also been made part of existing NAB laws by the present government, but there are certain amendments introduced by this government with having its retrospective effect relating to application of NAB laws with reference to culpability of offences redefined in new Section 4, the definition and cognizance of corruption and corruption practices, again redefined in Section 9, the definition and implication of Benamidar. The waiver of such provision of international mutual legal assistance mentioned in Section 19 of NAB Ordinance would be a point for legal consideration during the upcoming proceedings of Supreme Court, where the matter is pending.
Since the inception of NAB laws, the role and performance of NAB as an institution has been severely under criticism not by the affecters but also by the experts and courts, and this criticism has reasons on ground, both for initiation of cases, investigation and plea bargain and on the prosecution and trials side. It has also been widely reported in different media sections that NAB as an institution whose officials had misused their mandate, authority and NAB as institution which has been involved in political engineering as observed by Supreme Court in one of the cases. The present amendments have been made in this backdrop but to some extent it could be considered as reactionary for the previous actions and performance of NAB.
However, for the time being the NAB should also work vigorously to create an impression that it is not the agency of political victimization and also immediately set up a cell with a group of professional experts for improving governance, rectifying systemic issues which are the root cause of corruption and corrupt practices. It is also important to start working to improve the image of independent and professional investigation and prosecution within and outside NAB, and to establish a vigilance cell to monitor the working of NAB officials to check their misuse of authority, if any.
The new amendments introduced in NAB Ordinance 1999 were challenged soon after their promulgation before the Supreme Court, and after few hearings, Supreme Court has found it fit to issue notices to the Federation, Attorney General and other respondents. Thus the decision of Supreme Court on these proceedings would have great legal impact from such date when such amendments were passed by the Parliament. It would also have legal impact on action or inaction being performed either by NAB or NAB courts especially the returning of references on grounds of exclusion of jurisdiction by NAB courts in pursuance of the recent amendments. The actions made by the authorities and by NAB courts during the period from such introduction of NAB amendments since August 2022 up to the time of the decision of the Supreme Court would be legally subject to the final verdict and outcome of the proceedings of the Supreme Court.
The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: email@example.com.