Two ordinances, the NAB (Amendment) Ordinance and Elections Act (Amendment) Ordinance, were passed on Monday by acting president Yusuf Raza Gilani on the advice of Prime Minister Shahbaz Sharif. In the 2024 NAB Ordinance Amendment, the judicial remand period has been increased from 14 to 40 days. Another change was to reduce the sentence duration from five to two years for the officer who framed cases based on ill will.
Article 89 of the Pakistani constitution entails the process for the promulgation of ordinances by the President. Article 80 (1) stipulates that the President can only promulgate ordinances when the legislature, including the National Assembly or Senate, is not in session, and there exist circumstances that necessitate immediate action. However, the current situation in Pakistan presents a clear violation of this provision, as the legislature was in session and no circumstances that justified the issuance of recent ordinances by the executive.
Clause (2) of Article 89, subclause (a)(ii), specifies that any ordinance passed by the president will lapse after 120 days unless either House of Parliament passes a resolution disapproving it earlier. Additionally, either House can pass a resolution to extend the ordinance for another 120 days, but this extension can only occur once.
Recently, petitions were registered against the NAB (Amendment) Ordinance 2024 in the Supreme Court and against the Election Ordinance in Lahore High Court. Despite the representatives in the legislature being aware of the illegality of these ordinances and possessing the authority to disapprove them, they have chosen to act as mere puppets of the executive, as they often do. The theory of separation of powers which aims to ensure the balance of power and effective checks on all three organs to avoid abuse of power has been rendered completely ineffective in Pakistan.
After establishing the unconstitutional basis of these ordinances, let’s see what these ordinances entail. In the recent 2024 NAB Ordinance, the punishment for officers found guilty of framing cases out of ill will has been reduced from five to two years. Before moving forward, let’s first discuss the functioning of the NAB. The process begins by filing a complaint by a complainant who cannot be anonymous. The complainant signs on a written statement and the complaint can originate from any individual or government department.
After the verification of the complaint through a preliminary investigation involving relevant documentation, the NAB officer assesses whether there’s enough evidence to suggest potential wrongdoing. If present, a formal investigation process is started. It includes the NAB officers collecting data and evidence, documents, and recording witnesses’ statements to build a case. Charges are formed in accordance with the laws and regulations of Pakistan.
After approval by Chairman NAB, either a plea bargain or a formal case is initiated in the NAB court. The whole process is quite susceptible to wrongful framing by NAB officers such as by manipulating facts, tampering with evidence, or conducting an inadequate investigation. Moreover, NAB has repeatedly faced allegations of being biased and corrupt by different political parties in Pakistan. The public trust in the institution has been eroded too.
In light of all these circumstances, the decision of the executive to reduce the punishment of those officers who have interrupted the due process of justice seems to be quite illogical. Pakistan, unfortunately, has been grappling with lawlessness, and such amendments only exaggerate these concerns rather than mitigate them.
The judicial remand period was also increased from 14 to 40 days. Judicial remand refers to the custody of an accused person in jail on court orders. It is different from police custody because in judicial remand, the police and other investigation agencies do not have direct access to the accused. They can only be given access on order of the court. Judicial remand is only ordered by the court where there is a significant risk of evidence tampering by the accused or public safety concerns involved.
In other countries, the judicial remand period is much longer than that of Pakistan. For example, in India, the remand period is 60 days for crimes with less than 10 years imprisonment and 90 days for offenses carrying a 10-year longer confinement. In the United Kingdom, according to the Police and Criminal Evidence Act 1984 (PACE) and other laws, such as the Prosecution of Offences Act 1985, the judicial remand is 56 days, but it can go up to 182 days in case of serious crimes.
There are some advantages to longer judicial periods. For example, police and investigation agencies have enough time to collect pieces of evidence such as recording witness statements and collecting relevant documents. Moreover, if an accused is charged with terrorism, then a long judicial remand also safeguards the public from the suspect, and potential harm is alleviated.
Pakistan, however, presents a different picture when it comes to judicial remand. It is used frequently to incarcerate politicians and journalists. Prominent names include Imran Khan, Maryam Nawaz, Asad Toor, and countless more have been subjected to judicial remand. Sometimes on a legitimate basis, while other times based on politically motivated actions. In numerous cases, the courts, influenced by the executive branch, also extend the judicial remand period to further increase the plight of the accused.
Now with the initial judicial remand already stretching up to 40 days, further extensions will inflict both physical and mental suffering on the accused persons and their families. This also undermines the principle that ‘an accused is innocent until proven guilty’. Issuing an ordinance, without even following Article 89, signifies a hidden political agenda at play.
Another ordinance promulgated by the President also amended the Election Act 2017. In this amendment, power was granted to the Election Commission of Pakistan (ECP) to appoint retired judges in election tribunals without consulting the Chief Justice of that High Court. According to Article 219 clause (c), the Election Commission has the power to appoint election tribunals which adjudicate the disputes arising from elections such as rigging, fraud, or any irregularity.
According to section 140 of the Election Act 2017, only serving judges could be appointed in the election tribunals formed by the Election Commission of Pakistan in consultation with the CJP of that High Court. This, however, has changed.
According to Dunya News and DAWN, there was a deadlock between the Election Commission of Pakistan and the Lahore High Court regarding the appointment of judges in the election tribunals, and 180 petitions have been registered concerning the results of the elections for National Assembly seats, including Punjab and Islamabad, according to the ECP.
For the disposal of these petitions, the ECP had requested the CJP of LHC to nominate nine judges for election tribunals. The Chief Justice of the Lahore High Court Muhammad Ameer Bhatti only nominated two judges. Thus, two election tribunals were formed in Punjab under Hon’ble Mr. Justice Sardar Muhammad Sarfraz and Hon’ble Mr. Justice Sultan Tanvir Ahmad. The Lahore High Court, which normally has 60 judges, is currently operating at capacity, with only 39 judges. This is the reason further election tribunals were not formed.
The LHC’s CJP emphasized that creating more tribunals will only cause more accumulation of cases and hence slow down the working of the court system as a whole. The ordinance, according to the government, addresses this issue and facilitates the speedy disposal of petitions in election tribunals, as the ECP also has the power to transfer the pending cases from one tribunal to another. However, the logic behind this is questionable. Rather than solving the issue of insufficient judicial capacity in LHC, the executive instead found it best to appoint retired judges without even consulting the CJP of LHC. These retired judges would deliver favorable outcomes in support of certain candidates to retain their positions.
Unfortunately, the current state of lawlessness in Pakistan actually supports this hypothesis. In the 2024 NAB Ordinance, the executive encroached the authority of legislature, while in the Election Ordinance, the judiciary’s domain was infringed.
If you want to submit your articles and/or research papers, please check the Submissions page.
The views and opinions expressed in this article/paper are the author’s own and do not necessarily reflect the editorial position of Paradigm Shift.
Inshaal Sarfraz is currently pursuing her BA/LLB from LUMS, with a minor in history. She is a writer at heart, a pianist by hobby, and a tennis enthusiast in between deadlines.