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• Review petition filed by citizen ‘directly affected’ by judgement
• Plea questions apex court’s jurisdiction under Article 184(3)
ISLAMABAD: Soon after the government’s decision to challenge the Sept 15 judgement that declared the National Accountability Ordinance (NAO) illegal, a private petition was filed before the Supreme Court on Friday with a request to set aside the verdict.
Filed by PPP Senator Farooq H. Naek, the review petition was moved on behalf of Abdul Jabbar, a citizen who was neither a party in the first round of litigation nor belongs to any political party but was directly affected by the NAB amendment judgement since an accountability reference was pending against him.
On Thursday, Attorney General for Pakistan (AGP) Mansoor Usman Awan had told reporters that the caretaker government would file an appeal against the September 15 decision, which was the last order announced by outgoing CJP Umar Ata Bandial.
Since the short order has upheld the Supreme Court (Practice and Procedure) Act 2023, all judgements of the SC rendered under Article 184(3) after the day this law had deemed to come into effect are appealable including, the judgement on amendments in the NAB Ordinance.
But Abdul Jabbar filed the review petition stating that he was condemned unheard since he was not a party before the apex court in Constitutional Petition No. 21 of 2022 by PTI Chief Imran Khan (NAB amendment) case, besides no notice was issued to him by the apex court while deciding the matter.
The petition pleaded that the jurisdiction of the apex court under Article 184 (3) of the Constitution should be exercised sparingly, but the conditions precedent for the exercise of this original jurisdiction were not fulfilled while deciding the NAB amendment case.
The petition highlighted that the Sept 15 judgement has declared part of the legislation (the amendments to the NAB Ordinance) as against the Constitution without considering the fundamental principles of parliamentary democracy and the established principles for striking down legislation.
Moreover, the judgement on the petition did not pass the foremost test of any breach of fundamental right before which this court may hold any legislation to be ultra vires under Article 184(3).
Instead, the Sept 15 judgement has curtailed the power of the parliament to enact legislation, as it was the parliament that enacted the National Accountability Ordinance, 1999 and it is the parliament alone to decide how and when to amend or alter the same.
The judgement has also failed to appreciate that the amendments carried out in NAO by the parliament did not take away any offence from the grip of law, but have streamlined the same through channeling to the relevant authorities.
However, the apex court made the amendments in the law redundant, as the same provided the mechanism for all the cases which got effected by NAO and the National Accountability (Second Amendment) Act, 2022.
Moreover, the judgement also failed to consider the passage of National Accountability (Amendment) Act, 2023, which provided mechanism for all the cases effected by the National Accountability (Amendment) Act, 2022, and the National Accountability (Second Amendment) Act, 2022, thereby the parliament reaffirmed its will regarding the amendment to the National Accountability Ordinance, 1999.
Through the Sept 15 verdict, the petition stated, the SC assumed the position of being a ‘legislator’ and ‘policy maker’, which is beyond the scope of its powers.
It argued the SC decision was contradictory and based on an incorrect interpretation of the law and two amendments of which certain provisions have been struck down in discriminatory manner.
Published in Dawn, October 14th, 2023
