ISLAMABAD: At the 48th hearing of the case, Justice Syed Mansoor Ali Shah objected to the hearing by a three-judge bench and instead suggested formation of a full court to proceed with former prime minister Imran Khan’s challenges to the Aug 2022 amendments to the National Accounta­bility Ordinance (NAO).

When Friday’s proceedings started, Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the three-judge bench, observed that his fellow judge wanted to say something.

Taking the floor next, Justice Shah recalled his earlier stance he took in the case concerning the trial of civilians in the military courts, adding that in view of the Supreme Court (Practice and Procedure) Act 2023 — the operation of which had been stayed — he had reservations since petitions instituted under Article 184(3) of the Const­i­­tution were requi­r­ed to be taken up by a committee of judges to consider either the matter be heard by a five-judge bench or a larger bench.

Since the decision of the present case has implications, the petition should be heard by the full court, Justice Shah observed.

In the military court case, Justice Shah had opted to withdraw from the bench after the federal government objected to his presence as he was related to one of the petitioners challenging the military courts. Even then, in a note he issued later, Justice Shah had emphasised the need of hearing such matters by the full court.

Justice Shah also sought assistance of senior counsel Makhdoom Ali Khan, who was representing the federal government from the Karachi Registry through weblink saying he want to write something about the matter and therefore wanted to ascertain how the counsel look at the Act 2023. Should the present three-judge bench continue hearing the matter or defer it, Justice Shah wondered.

“You take your time and assist the court in this matter,” Justice Shah observed while pointing towards the counsel. He also recalled that he had been repeatedly asking the petitioner during previous hearings to point out which fundamental right had been breached by the amendments made in the NAB law, but the query has not been addressed so far.

The counsel, however, replied that he would come prepared on the next date of hearing, but his immediate response would be in favour of the opinion expressed by Justice Shah though it was for the judges to decide should they continue to proceed with it or not.

When the counsel was asked by CJP whether he would like to make submissions to the concise statement filed on behalf of petitioner Mr Khan, Makhdoom Ali Khan said that he would like to avail the opportunity of advancing arguments both verbally and in writing. However, he highlighted that he had no recollection of a direct challenge to the provisions of the NAB law. They simply have filed the concise statements and have written only two or three lines to the 2023 amendment in the NAB law by the PDM government in which the period of remand was reduced to 30 days than the 90 days.

All during my previous arguments, the counsel reminded, he had been insisting that the petitioner should identify those provisions of the law which violated the Constitution and therefore deserved to be set aside. Since nothing had been highlighted therefore the petition challenging the NAB amendments was speculative, the counsel said.

Though he did not want to indulge in the debate whether the Punjab Assembly election case was a four-three judgement or three-two verdict but two of the members in that case, and also sitting on the present case, had accepted the maintainability of the election case whereas one of the judge had held that it was not maintainable.

The CJP, however, observed that diversity of opinion was always a good thing but emphasised that “it seems we did not have enough time left” as he would be retiring next month, and since the case was very important, he wanted to write something about it, or it would bring embarrassment as he had to leave soon.

The CJP emphasised that the court would provide opportunity for both parties to go through the concise statement and then come out with their view next week and the court would conclude the matter by holding day to day hearings.

Referring to the point that it was up to the judges to continue hearing or not, the CJP, while pointing towards the counsel, observed that “we should not create problems; instead, should make a schedule so that the court would carry on with the matter”.

Justice Ijazul Ahsan also observed that any opinion made in certain case was not an opinion in general rather relate to that particular case only since every case has its own standing and circumstances.

The counsel, however, replied that the counsel never creates problems rather it was his duty to take any point that may help evolving a jurisprudence.

The CJP, however, emphasised that in case of dissent by a judge, what prevails was the majority judgement, adding that he did not agree with the proposition advanced by the counsel, also emphasising that 47 hearings had already taken place and the court had gone too much into the jurisprudence, but wondered why the counsel was trying to avoid the hearing.

The counsel again replied that he was not avoiding the hearing; rather, it was his duty to present all available arguments, but it was up to the courts to either accept it or reject it.

Concluding the hearing, the CJP observed that the court would give both parties a week to get prepared and then argue on both the merits and the maintainability of the present case.

Published in Dawn, August 19th, 2023