Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday said the “solution of all issues of the country is only possible through the people’s decision” as he heard PTI Chairman Imran Khan’s petition against the August 2022 amendments to the National Accountability Bureau (NAB) ordinance.
A three-member Supreme Court bench — comprising CJP Bandial, Justice Syed Mansoor Ali Shah and Justice Ijazul Ahsan — resumed hearing Imran’s plea, which claims the new NAB laws are a “violation of fundamental rights”.
At the outset of the hearing today, discussing the general elections, Justice Bandial said: “The solution of all issues of the country is only possible through the people’s decision. Eight months have passed since the incumbent government came to power.”
He referred to a prior ruling of the Election Commission of Pakistan (ECP) saying: “The ECP had stated in the speaker ruling case that they would be ready to conduct elections in November 2022.”
The CJP asserted: “The current parliament has been systematically kept incomplete. The legislation taking place in the current parliament is also becoming controversial [as a result].”
After hearing the arguments, the three-member bench adjourned the next hearing till 11am on Feb 10 (tomorrow).
Arguing that Imran did not have the right to lodge the petition, the federal government’s lawyer, Makhdoom Ali Khan, said: “The court should remain cautious about Article 184(3) of the Constitution.
“If the court suspends legislation over any petition under Article 184(3), the standard will drop. The authority of Article 184(3) exists in public matters.”
CJP Bandial responded: “The realities of the present case are different. The chief of the country’s biggest political party has challenged the NAB amendments.
“There is intense political tension and crisis in the country. The PTI first applied the strategy of leaving parliament. Then, it was not known why they decided to return to parliament.
The petitioner Imran Khan is no ordinary citizen. Even after leaving the government, he has enjoyed enormous public support.“
CJP Bandial stated that the judiciary did not want to meddle in the legislative either and that it had not taken notice itself but a petition had been filed. He highlighted that the court had rued its decision once before as well.
“Only one prime minister has come in Pakistan’s history who was considered very honest. One honest prime minister’s government was ended through 58 (2b). Article 58 (2b) was a draconian law. The court had said in 1993 that the government was [sent packing] in the wrong manner but only elections should be conducted now,” the CJP said.
He added: “The PTI chief is not in the assembly and legislation like the NAB amendment is now becoming controversial.”
Justice Bandial asserted that it was not about Imran’s right to challenge the verdict, and he dismissed the same objection raised by the federal government’s lawyer.
Meanwhile, the government’s lawyer said: “The court has to determine what is the standard of cases regarding fundamental rights. Can anyone challenge legislation based on assumptions?”
Replying to this, the CJP reiterated that Imran was no ordinary man but “the chief of a huge political party of the country and was a former prime minister”.
Justice Bandial added: “His party decided to resign from the parliament due to political conflicts. His party then changed its mind and now they want to return. But they are not a part of parliament right now. But parliament is there.
Remarking that corruption existed in the country since the “first day”, he recalled how an “extremely sincere prime minister’s government was ousted under Article 58(2b)”.
The CJP highlighted that the judiciary of that time recognised the ouster as wrong but still allowed the elections to be held, facing “great criticism on its decision”.
Justice Bandial reiterated that the Chief Election Commissioner Sikandar Sultan Raja had assured him in November last year that the electoral body was “ready to hold elections any time”.
“Now, it is February 2023; the parliament’s period is till August. If this party could not raise an objection in the parliament on such a controversial amendment, then it is their privilege that they challenge it in the court,” he asserted.
Justice Bandial said the judiciary was cautious in reviewing legislation which is why it did not take suo motu notice but the current hearing was being held at a party chief’s petition.
In response, the federal government’s lawyer said: “Never in history has a politician lost a game, exited parliament and come to the court. Politics was pushed into the judiciary and vice versa.”
Justice Shah then asked him: “A person who is in the minority and his rights are being affected, where else will he go other than the court?
“Whatever is necessary, let the people decide upon it.”
The lawyer insisted that “clarity in the law was necessary” before the elections. “After leaving parliament, everyone has the right to contest elections on more than one seat in the elections. In India, a person is allowed to contest elections on just one seat,” he highlighted.
He argued that whether a candidate lost or won in case of contesting on more than one seat, it resulted in the wastage of the people’s money.
To this, Justice Bandial responded: “Zulfikar Bhutto also contested on more than one seat. Bhutto won the seat without any competition so the other elections took place according to the schedule.”
The government’s lawyer replied that it was a matter from before 1970 and that the nation “paid the heavy cost of Bhutto winning without competition in the form of 11 years of Zia’s reign”.
He further said: “No court alone can save democracy. An article was written in an international newspaper 40 years ago, according to which, neither do people want to make politicians their identity nor want the judges to reign.”
He asked that the “judiciary should not rule” to which Justice Bandial replied the “judiciary never wanted to rule”.
The CJP remarked: “A political vacuum is difficult for the people. When there is a political crisis, the judiciary has to intervene. The people want a government free of corruption.”
At one point during the hearing, the federal government’s lawyer said when Imran left the government, the amendments were already under a standing committee.
He argued that the incumbent government had only passed the amendments left behind by Imran.
“During the PTI’s tenure, five NAB ordinances were introduced in 2021. Imran Khan has only challenged the NAB amendments after losing the government.
“Who knows, maybe he’ll come to the court and say that he did not even read the NAB amendments,” the lawyer remarked.
NAB law amendment
The NAB (Second Amendment) Bill 2021 states that NAB’s deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.
The bill has also reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years. After approval of the law, NAB will not be able to act on federal, provincial or local tax matters. Moreover, the regulatory bodies functioning in the country have also been placed out of NAB’s domain.
It says that “all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions … shall stand transferred to the concerned authorities, departments and courts under the respective laws.”
It has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB to ensure the availability of evidence against an accused prior to his or her arrest.
According to one of the key amendments, the act “shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999”.
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