• PTI chief’s lawyer will try to satisfy SC bench today on lawmakers’ discretion to quit, take public issues to streets
• Changes to accountability law tackled the issue of 90-day detention before probe, CJP remarks

ISLAMABAD: While taking up a challenge by former premier Imran Khan to the National Accountability Ordinance (NAO) amendments, the Supreme Court on Monday sought his opinion on exclusion of armed forces from the accountability law’s purview.

“Since the counsel has emphasised before the court how significant accountability process is in the progress of a society, especially in view of religion, fundamental rights and other factors then what is his client’s opinion about Section 5(n)(iv) of NAO?” Justice Syed Mansoor Ali Shah asked Mr Khan’s lawyer Khawaja Haris Ahmed, adding that if the former premier considered it ‘discriminatory’.

Justice Shah — a member of a three-judge SC bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial and also comprising Justice Ijaz-ul-Ahsan — also wondered when even the superior court judges were amenable to the purview of the accountability law, how such exemption to members of the armed forces was justified.

Besides coming up with Mr Khan’s opinion on the matter on Tuesday, the senior counsel is also supposed to satisfy the bench if a member elected to parliament by voters as their trustee was at liberty or had the prerogative to take issues concerning their rights to streets rather than raising voice in the parliament.

“Won’t it be against the concept of parliamentary democracy and how the parliamentary system can work if members decide to quit parliament,” Justice Shah remarked.

He wondered if an SC decision in the present matter would render infructuous a similar petition pending before the Islamabad High Court (IHC), especially when the apex court had not yet heard their opinion.

When he said if the court should send the matter to the high court and wait for their wisdom before deciding it, the counsel for Mr Khan reminded the bench about precedence in similar matters when the SC summoned the entire record of the case for their determination or stayed the proceeding before the high court until the final decision by the top court.

“It is the choice of the parties which approached the high court,” the counsel explained, “not to join the present proceedings before the apex court”. He said they could have become party in the present matter.

Citing several judgements, the counsel also emphasised it was for the court to determine whether the present matter falls within the domain of the public importance, adding that even the vires of the amendment can be examined by courts if they were bulldozed.

Mr Khan’s lawyer then cited the example of 2020 army chief’s extension case to emphasise that though there was legal vacuum concerning chief’s tenure, the SC intervened in the matter and endorsed the extension while referring the issue of COAS tenure and other terms of his service to the parliament for legislation.

When he read out excerpts from the judgement, also authored by Justice Shah, to lend strength to his argument, the bench member asked the counsel to also read out the following paragraph for clarity.

The counsel then continued to read out, “this exercise of judicial restraint may not be mixed up or confused with the infamous and unpopular application of the doctrine of necessity, which amounts to going against the law of the land to attend to some political or other goal… This is not so in the present case where there is no law, in fact there is a total legal vacuum regarding the tenure of a general… It is also instructive to refer to the spirit of Article 203D of the Constitution, where the court can direct the federal government to initiate process for making appropriate legislative amendments in the relevant law and can grant reasonable time for doing the needful.”

When CJP Bandial cited the Darshan Maseeh case to explain the apex court took up the matter despite the fact that none of the brick kiln workers were before it, Justice Shah noted that the issue regarding enforced labour and brick kiln workers’ exploitation was taken up as a community was being affected and there was an uproar in society over it, with media highlighting it in newspapers and articles.

However, in the present case, three judges sitting in the bench could not determine whether the issue before it was of public importance when the entire country was silent about it and there was no protest in this regard, Justice Shah wondered.

The counsel then urged the court to strike down the changes to the NAO, because certain provisions had been taken away without any plausible reasons while rendering it impossible to convict an offender, despite the fact that corruption was considered cancerous for any society.

The CJP then remarked the NAB law was also considered “a stumbling block impeding the country’s progress”. He observed that the amendments to the law had taken care of the previous practice of detaining a suspect for 90 days, and arresting him before initiating an inquiry against him.

Published in Dawn, December 13th, 2022