THE BATTLE FOR THE CARETAKER

On the 14th of January, the Punjab Assembly was dissolved by the Chief

Minister of Punjab Mr Pervez Elahir and this was done in agreement

with Mr 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 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 Commissioner of Pakistan, who ended up

naming Mr 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 Mr

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 him

or given to him in relation to an offence under investigation during or

before he himself is under said investigation.

PTI has declared the appointment as illegal and void and is stating that it

is a settled matter of law that such a person, who has availed such a
benefit, cannot hold Public Office and 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 comes under ‘Misconduct’ under Service Law and

thus the relevant department should issue a separate inquiry under

relevant Service Law provisions. When Mr Naqvi undertook said Plea

Bargain he was not holding a public office thus there is little question of

‘Misconduct’ since said ‘Misconduct’ was conducted when Mr Naqvi

was not holding Public Office. So what about individuals like Mr 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 such bargain is

discharged. Mr 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 Mr Naqvi from holding the all-

important office of caretaker as a public official and he stands 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 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 utilize

these loopholes to escape justice.

Constitutionally speaking, the Supreme Court will be stretching its

jurisdiction quite far in declaring a nominee as unfit without any major

legal ground since the aforementioned argument that is being displayed

is absent legal ground. 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.