The Parliamentarians Are Also Public Officers, and Thus, They are Also Triable Under The PCA and The PPC: Dissenting Note
Honorable Justice Syed Mansoor Ali Shah of the SC has released his dissenting note in the recent NAB Amendments Case wherein the majority has struck down certain amendments in the NAB Ordinance. The dissenting note is well reasoned, strongly grounded and has been written in a unique format. Headings and sub-headings have been provided to each of the topics. Every aspect of the case and each query involved in the case has been separately dealt with and answered.
The Honorable Judge has asserted that the main premise of the majority judgment is that the parliamentarians are not public office bearers, and thus if their corruption up to RS 500 million is excluded from the NAB jurisdiction no other fora would be able to take cognizance of their corruption as the Pakistan Penal Code and Prevention of Corruption Act are applicable to the public officers, and Parliamentarians are not public officers. The dissenting note analyzes different judgments from India and Bangladesh, which the majority has relied for the definition of public officer, and concludes that their definitions of public officer are slightly different from ours and thus the parliamentarians duly fall under the definition of public officer in our jurisdiction.
He further writes that giving jurisdiction to one court or another or changing forum of redressal from one to another, or setting a threshold to determine the jurisdiction of a court is completely a prerogative of the Parliament. The courts cannot interfere in the matters which fall out side its jurisdiction. Policy matters and legislative matters are the business of the Parliament and they are not justiciable in any way. Hence, if the Parliament has considered fit to change the forum to address the question of corruption from the NAB to any other fora or has set a higher threshold to bring a case under the NAB law, it is its domain and the Parliament has constitutional competency to do so.
It is further asserted that we cannot challenge laws in the guise of the fundamental rights unless those laws infringes the fundamental rights. An objective criteria should be adopted to see whether a claimed right form integral part of the named fundamental right or it partakes of same basic nature and character as that of the said fundamental right. We cannot determine a fixed definition of the fundamental rights but we have to look into the mater and see whether a fundamental right or an integral part of the fundamental right is abridged by the enactment of a law. If yes, such law cannot sustain. Otherwise, the law must sustain.
The note also emphasizes on the trichotomy of power, and mutual respect and tolerance among the state organs, declaring the foundation of the basic democracy.
At the end, Justice Shah has declared the amendments intra vires the Constitution and dismissed the petition.const.p._21_2022_30102023