THE recent judgment of the Supreme Court on NAB Amendments depicts the beauty of intellectual discourse. However, at the same time there seems a lack of mutual discussion and deliberation among Honourable Judges. The legal fraternity was eagerly waiting for the minority judgment in NAB Amendments case. However, the minority judgment authored by Honourable Justice Mansoor Ali Shah is quite educative and surprising as well. The minority judgment dissects the definition of ‘Public Servant’ provided in Anti-Corruption Ordinance and Pakistan Penal Code.
It may be noted that the basic premise of the majority judgment was that the definition of ‘Public Servant’ excludes politicians i.e. members of Parliament/provincial assemblies. However, while reading the minority judgment, it feels that this basic difference of opinion could have easily been sorted out by mutual discussion between the judges. The ratio of the majority judgment has been criticized by the minority decision to the very core. This is because the majority decision relied on the decision of the Indian Supreme Court whereby the Indian Supreme Court has excluded the members of Parliament from the definition of ‘Public Servant’ on the basis of the definition of ‘Public Servant’ in the Indian Penal Code. Contrastingly, there is a subtle difference in the definition of Public Servant in Pakistan Penal Code which, in view of the minority judgment, invariably includes ‘members of Parliament’.
The judgment authored by former CJP discusses that owing to the amendments brought in NAB Ordinance, the politicians have been given a free hand to exploit public offices and there will be no forum to check their corruption as anti-corruption laws are applicable only to public servants and not the politicians. However, if the minority decision is considered, the politicians are chargeable under anti-corruption law in addition to being subject to the NAB. This judgment has revealed the fissures which have remained prevalent inside the walls of the Supreme Court. Moreover, the dissenting note also has emphasized upon the doctrine of trichotomy of powers and the limitations of judicial review.
While dilating upon the concept of judicial restraint, it has been rightly pointed out that if every legislative action is so minutely examined then one way or the other every such legislative action affects some kinds of the fundamental rights of the citizens and the Supreme Court can assume its original jurisdiction under Article 184(3) and strike down the legislative instruments. This approach will divest Parliament of its primary duty of legislation.
The way in which public can make the legislators accountable for any such legislative exercise is through elections after a periodic interval. The Constitution gives the power of legislation to Parliament and the dissenting decision has highlighted the sanctity of this legislative power. On a combined reading of the majority and minority decisions, it appears quite visible that the Supreme Court remained devoid of its own wisdom ie Judges remained aloof of the legal wisdom of their own colleagues. The collective wisdom of the Supreme Court could have easily avoided this legal bottleneck.
If the Supreme Court in appellate jurisdiction conferred on it under Supreme Court Practice and Procedure Act, 2023, upholds the minority view then this will again result in time and expense of the state on futile movement of case files from one forum to another. The lesson to be learnt from this episode particularly and the overall constitutional history of Pakistan in general is that we as a nation are not defeated or dejected by the letter of the law but by the deep fissures in the society which result in fragmented interpretation of that very law.
—The writer is working in the Civil Service of Pakistan.
Email: kamranmushtaq33@gmail.com
Views expressed are writer’s own.
