On the 14th of January, the Punjab Assembly was dissolved by the Chief Minister of Punjab Parvez Elahi, and this was done in agreement with Imran Khan as a means to pressure the central government to announce early General Elections. Post dissolution, the province is to be placed under a caretaker setup which would oversee the functions of the province and ensure transparent elections. The said caretaker setup was to be formed through the consensus of both the treasury and the opposition. However, to nobody’s surprise, the two were unable to see eye-to-eye, and the matter went to the Election Commission of Pakistan (ECP), which ended up naming Mohsin Naqvi, a journalist-cum-media tycoon as the Caretaker Chief Minister of Punjab.
The appointment has come under severe criticism from several circles since it has come to light that Naqvi took a plea bargain from NAB in the infamous Haris Steel Case. Now a plea bargain or a voluntary return is covered under Section 25 of the National Accountability Bureau Act 1999, which defines it as an act of an individual, be it a public office holder or not, wherein the said individual comes forward voluntarily and returns all assets made by them or given to them in relation to an offence under investigation during or before they themselves are under the said investigation.
PTI has declared the appointment as illegal and void, stating that it is a settled matter of law that such a person, who has availed such a benefit, cannot hold public office. For this purpose, they have cited a judgment of the Supreme Court, and while what they are stating is the truth, it is not the complete truth.
Section 15 of the aforementioned Act states that an individual undergoing a plea bargain is disqualified to hold public office of any kind since the said individual is considered to have committed an act of corruption and a plea bargain to be a confession of this crime and the voluntary return to be an act of doing the right thing. The Supreme Court of Pakistan interpreted the act of voluntary return in landmark cases of The State through Chairman NAB v. Hanif Hyder and another (2016 SCMR 2031) and Provincial Selection Board vs Hidayatullah Khan (2021 SCMR 1904) as well as Muhammad Aslam, Ex-Deputy Director (Audit) District Govt. Lahore v. Auditor-General of Pakistan, Islamabad (2013 SCMR1904), wherein it held that a voluntary return is an admission of guilt as the very act of an individual offering a voluntary return is an act of confession. This is a settled principle of law and the much-tweeted Suo-Moto Case 17/2016 alludes to the same. But there are two major components of law that are misunderstood and ignored.
The first component is that the aforementioned cases pertain to individuals who took plea bargains during the time when they held public office. The court declared that their act of plea bargain is an act of confession and falls into the category of ‘Misconduct’ under Service Law, and thus the relevant department should issue a separate inquiry under relevant Service Law provisions. When Naqvi undertook the said plea bargain, he was not holding a public office. Thus there is little question of ‘Misconduct’ since the said ‘misconduct’ was conducted when Naqvi was not holding public office.
So, what about individuals like Naqvi who take plea bargains when they don’t hold public office? Can such individuals take public office despite the provision of such blatant confession of guilt on record?
The answer lies in Section 15 wherein it is held that any individual that benefits from such a bargain shall be barred to hold office for a period of 10 years from the date that such a bargain is discharged. Naqvi discharged such a bargain on 24/05/2010, which means that legally speaking there is nothing within the NAB Act 1999 or the Supreme Court judgments that bars him from holding the all-important office of caretaker as a public official – and he stands validly appointed as such.
Yet it is a curious sight to behold where an individual that voluntarily comes forward to an admission of corruption, returns an amount in the number of millions to the National Accountability Bureau (NAB) and serves a barred period for ten years, is now expected to hold transparent elections within the largest and one of the most politically contested areas of Pakistan. It is also quite ironic that an individual of such admitted guilt is expected and allowed to sit in the very office whose custodian is expected to undergo the strictest principles of “Sadiq and Ameen” even if the powers are restrained and the period temporary. It is evidence of the many existing loopholes within the legal system of the country, especially when concerning anti-corruption laws.
PTI has declared that they will contest this matter in courts and while their outrage is understandable, they must also be held answerable as to why this loophole was allowed to function during their tenure, when they declare their tenure to be a crackdown against corruption. Their tenure ignored the many defects within the Accountability Law and allowed many individuals, including those beneficiaries of their tenure, to utilise these loopholes to escape justice.
Constitutionally speaking, the Supreme Court will be stretching its jurisdiction quite far in declaring a nominee unfit without any major legal ground, since the aforementioned argument that is being displayed lacks legal grounds. It is quite likely that PTI will struggle to find a pliant court room on the basis of an argument based on perceived bias and moral argument, especially considering the fact that such a constitutional challenge to a caretaker nominee has never happened before.
As the political battlefield for Pakistan draws evermore grim, there is an unmistakable conclusion to be observed: that much of this crisis stems due to the weakened and abused legal system of Pakistan. And the ineptitude and failure of the parliament in observing, understanding and rectifying these pitfalls within the law of the country has deepened this crisis. Self-serving interpretations and consciously formed loopholes for personal benefits will only push Pakistan to the chasm of legal darkness from which it may never return.