• CJP says court to consider public interest while deciding PTI chief’s plea against amendments to NAO • Justice Ahsan asks if self-serving law can be made to give amnesty

ISLAMABAD: Chief Jus­tice of Pakistan (CJP) Umar Ata Bandial on Friday obser­ved that the court, while deciding about the accountability laws, will look into public interest to strike a balance by protecting those who act in a bona fide manner than those who misappropriate public funds and amass properties or pursue other interests out of extraneous and illegal considerations.

There is no question that accountability of people exercising public authority is fundamental to good governance, but it has to be considered how the economy was harmed due to fear on the part of civil servants of the National Account­ability Ordinance (NAO) and prolonging decision-making by avoiding fundamental decisions in time and leaving it for the cabinet to decide, the CJP regretted. He also observed that accountability laws have been used as an instrument of persecution.

CJP Bandial was heading a three-judge Supreme Court bench that had taken up a challenge to the recent amendments to the NAO, moved by PTI chairman and former prime minister Imran Khan through his counsel Khawaja Haris Ahmed.

On Friday, the court asked senior counsel Makhdoom Ali Khan, who represented the federal government, as well as Mr Haris to furnish concise statements before the next hearing on Aug 19.

When asked by the court if there was a study to gauge the effects of the NAO on the economy, Mr Khan replied in the negative, saying there were observations of the court itself, and emphasised that failure to draw a line had paralysed the economy. The counsel also emphasised that the petitioner needed to show bona fide in challenging the NAO amendments when they promulgated a presidential ordinance during their tenure in this regard but were now challenging the same.

The counsel also questioned how the 33-page observations made by President Dr Arif Alvi on the amendments were leaked to the petitioner when the president represented unity of the state. “We would like to know what the observations of the president were when the previous PTI government itself made such amendments through ordinances twice or thrice. They are challenging their own acts,” the CJP wondered.

CJP Bandial recalled how the apex court entertained direct petitions under Article 184(3) or by taking suo motu notices on financial matters, but that ended up adversely affecting the country, as in the Reko Diq or Pakistan Steel Mills cases.

The real danger behind entertaining such petitions under Article 184(3) on a wholesale basis was the temptation of converting courts into the third chamber of parliament, Makhdoom Ali Khan said, adding this must be avoided. He also highlighted that courts should also see the genesis of the law, asking if the country was mired in corruption when the NAO was promulgated in 1999 and if something good happened after the advent of the law.

Presently, no businessman was willing to invest in the country, Foreign Direct Investment had dried up and the economy was in a shambles, the counsel regretted.

During the hearing, Justice Syed Mansoor Ali Shah wondered when the petitioner walked out of the house as a parliamentarian without the consent of his constituents, what his credibility would be and if he would still have the locus standi to approach the court in the matter.

He also wondered whether the decision to come out of parliament was made at the party level, also stating that constituents could ask how members came out of parliament without their prior approval when they were sent to represent them and redress their grievances.

Khawaja Haris, however, reminded that the petitioner had resigned from parliament, but it was a different issue that the National Assembly speaker was not accepting the resignation.

Justice Ijazul Ahsan wondered if a self-serving law could be made to create amnesty, explaining that essentially a number of people had benefitted from these amendments.

“Should we continue to witness a seesaw with one government absolving itself of all charges and another undoing the same,” Justice Ahsan observed.

“We attach legality on the settled principle of the Constitution and the law,” Justice Ahsan emphasized, adding there were examples where the court had examined laws where the amendments introduced were in violation of the Constitution or took away the right or came under the category of breach of trust.

Mr Haris argued that the parliamentary form of governance blended with the Islamic provision was the salient feature of the Constitution, as laid down by the apex court in different judgements, adding when certain statutes took away the independence of the judiciary then it violated the salient features as well as the fundamental rights of the people to be governed in accordance with the law and Constitution.

The counsel also cited the example of Hazrat Umar who was subjected to questions regarding accountability.

Published in Dawn, August 6th, 2022

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