Supreme Court echoes with ‘good to see you’ again

Published August 29, 2023
From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website
From left to right: Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah. — Photo courtesy SC website

The Supreme Court on Tuesday echoed with the pleasantry “good to see you” as it heard PTI Chairman Imran Khan’s plea challenging amendments to accountability laws.

A three-member bench, comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Mansoor Ali Shah and Justice Ijazul Ahsan, took up the petition, which was filed last year in June.

After coming to power in April last year, the then-PDM government passed the Nati­onal Accountability (Second Amendment) Act 2022 — a move that was heavily criticised by the PTI, which termed the legislation an attempt to turn the National Accountability Bureau (NAB) into a “toothless” organisation.

Imran had challenged the amendments to the National Accountability ordinance, arguing that it was a violation of fundamental rights. The petition argued that the amendments would “virtually eliminate any white-collar crime committed by a public office holder”.

During today’s hearing, Advocate Khawaja Haris appeared before the court as the PTI chief’s counsel while Makhdoom Ali Khan represented the federal government.

Noting that the Supreme Court (Practice and Procedure) bill “interferes in the Supreme Court’s jurisdiction” to hear the matter, CJP Bandial said he was of the view that the current bench should continue hearing the case.

However, Justice Shah once again suggested that a full court be formed to hear Imran’s petition against the accountability law amendments.

The hearing

At the outset of the hearing, while addressing Haris, CJP Bandial said, “Good to see you. I hope that I will not be targeted for saying this.”

The top judge had earlier exchanged similar greetings with former prime minister Imran Khan during the latter’s appearance before the apex court on May 11. However, the PML-N had claimed that the friendly gesture was only limited to the PTI chief.

During today’s proceedings, the CJP noted that the apex court had already understood the argument presented by the federal government’s lawyer, adding that Makhdoom Ali Khan was criticising the court proceedings.

Justice Bandial stated that the attorney general of Pakistan (AGP) had accepted that there were “defects” in the law and had asked for more time.

Recalling that the AGP had informed the court that the National Assembly was to review the Supreme Court (Practice and Procedure) law, the CJP said it had not done so.

He went on to say that he was unaware of the incumbent interim government’s stance on the Supreme Court (Practice and Procedure) law, and asked, “Should a suspended legislation be given this much importance that it caused other cases to be delayed?”

He asked the reason why the AGP had sought more time, to which the government lawyer replied that the AGP was not present on the occasion.

Citing a past court verdict, Justice Bandial observed that an appeal against a decision made by an eight-member bench could not be heard. He said, “If you have any objection, then file a new petition.”

When Haris said that it was ruled in the Aitzaz Ahsan case that the legislation would “remain ineffective” and had not been declared “unlawful”, Justice Ahsan noted that the government had already admitted it had enacted “poor legislation”.

“Proceedings cannot be impacted by a legislation that has been suspended by a court order,” the judge added.

CJP Bandial then asked if the government wanted the court proceedings to be halted, to which the counsel answered that the AGP’s stance should not become an obstacle in his path.

Here, Makhdoom noted that the courts are always cautious when declaring legislation illegal.

Justice Bandial observed that it was the first time a law had been formulated that “interferes in the Supreme Court’s jurisdiction”.

Justice Shah then asked the lawyers present in the courtroom if the current three-member bench should continue hearing the case while there was a stay order on the practice and procedures bill or if it should form a full court to hear the matter.

The government’s lawyer responded that he was of the view that a full court should be constituted.

While recalling that the government had itself sought time to make amendments to the law, the CJP termed the bill an “attack on the Constitution and the judiciary”. “It is against the fundamentals of the Constitution,” he added.

Justice Bandial asserted that the judiciary was present to “make decisions according to the Constitution and the law”, adding that one of the bench members even had to come from abroad to attend the hearing.

“My personal opinion is that this case should be proceeded with,” the top judge said. He added that the “real NAB amendments” had been passed in 2022 and asked Haris to “forget the ones from 2023”.

Noting that the court’s vacations had begun and that the bench had come there to hear this case only, Justice Bandial directed Haris to limit his arguments to the matter of the 2022 amendments.

He remarked, “It seems as if this case is becoming EOBI (Employee Old Age Benefits Institution) [case], which is not coming to an end. Six chief justices had presided over the EOBI case.”

At one point during the hearing, Justice Shah observed that he was not concerned about the fact that an eight-member bench had issued a stay order on the Supreme Court procedures bill, but his only question was if the current bench should hear this case or should a full court be constituted“.

“This has become Netflix season 3,” he remarked.

CJP Bandial then noted that the court would decide the matter pertaining to the 2022 amendments. Makhdoom agreed, saying that the amendments made in 2023 were of a minor nature.

When the CJP asked what additions were made to the 2022 amendments, the government lawyer replied that the PTI chief had not challenged any changes made in 2023.

However, Haris interjected, saying, “I will correct his statement. It is mentioned in the court order that I raised the matter of the 2023 amendments. The court asked me to file a miscellaneous petition and submit its copy to the opposing party, which I have done.”

Here, the CJP observed, “Some people have received exceptions from the amendments made to the NAB laws. Khawaja Haris is saying that the concept of benami has been changed.”

In his defence, Makhdoom stated that the changes to the law had softened the punishments. Justice Shah asked, “Are you saying that the lawmakers can make amendments pertaining to fundamental rights?”

The government lawyer then gave references to history books and the Ottoman Caliphate before the court and said, “There isn’t a concept of such a sultanate anymore. Lawmakers should be trusted.”

Subsequently, the apex court adjourned the hearing till tomorrow (Wednesday) while Justice Shah once again proposed a full court be formed to hear the case.

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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