90pc cases will go if court says NAO amendments are not retrospective: CJP

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial said if the apex court says the amendments in the National Accountability Ordinance (NAO), 1999, are not retrospective then 90 per cent of the cases of the government and its allies would go.

The chief justice, heading a three-judge Supreme Court bench, which heard former prime minister Imran Khan’s petition against the NAO amendments, said that they are hearing the case with patience, adding; “Even if they do not touch the amendments, and only say that the amendments are not retrospective then 90 per cent cases will go.” He asked Makhdoom Ali Khan, who represented the federation, that the government should be open to review the amendments.

Makhdoom said he would communicate the Court’s observations to the government, adding the best thing is that the Pakistan Tehreek-e-Insaf (PTI) MNAs contest these issues in the parliament.

The chief justice observed said they have seen in the media that the PTI lawmakers were saying that they will go back to the Parliament. He then inquired from Makhdoom that is there any possibility that the government may reconsider the amendments in the NAO.

Makhdoom said they (the PTI MNAs) should get their grievance addressed in the Parliament, they may move a bill to amend or repeal the amendments. There is a parliamentary procedure, they either can move the private bill or bill to amend or repeal the law.

The chief justice remarked that at this time we (the society) need cooperation in every aspect, whether that is economic, political or social.

Justice Ijazul Ahsan said that suppose there is bipartisan support then they should consider amending the law, adding sanity must prevail on both sides.

Makhdoom argued that the judicial approach is based on principle, while the political approach is based on generality. Without politics there is no democracy, adding the country or the society survives with the spirit of accommodation.

Justice Syed Mansoor Ali Shah stated the parliamentary process is available to the PTI MNAs; therefore, they should go back and take up the matter in the National Assembly.

When the bench inquired from Imran Khan’s counsel whether he has any instruction from his client regarding the matter. Khawaja Haris said the political situation is untenable and chaotic; therefore, nobody knows what will happen next. He said not only the petitioner, but many other people have also suffered by the amendments.

The chief justice said that a dozen times my colleague (Justice Mansoor) stated that this matter needs to be decided in the Parliament and not in the court. However, the petitioner brought this case which attract Article 184(3) of the Constitution, he added.

Makhdoom argued that when the Court looks at striking down a statute then it should see the boundary of exercise of its power. Unless there is clear-cut unconstitutionality pointed out, the statute is not struck down on mere differences in perception. He said the ethical issues need to be looked at from the perspective of constitutionality.

Justice Ijaz observed that some parliamentarians against whom there are serious allegations and some were facing trial in the courts have introduced the amendments in the Assembly, adding due to this law the accountability courts, where cases were pending, look the other way. The judge inquired from the counsel whether he had seen this in other countries.

Makhdoom replied there are many instances where the executive branch pardoned, and clean chit was given. Justice Ijaz remarked that pardon is different. He questioned does the counsel think the legislators can give a clean chit or exonerated, retrospectively.

Makhdoom said the conflict of opinion has never been a ground to invalidate the legislation. There is no precedent that the court strikes down a law that “x” number of the parliamentarians benefited from the law.

He argued that many people have suffered because of the NAB law. The prime minister, finance minister, and the chief executive of the country were jailed for months, while a businessman against whom there was evidence was acquitted without a valid reason. No one challenged it even the NAB did not appeal against that order.

He said though laws for the accountability of public office holders have been since 1947, but it had been misused. No one has accused the prosecutors. The chief justice said why no one had brought such cases in the apex court. “Don’t leave everything to the Court. We don’t take suo moto notice on every issue.” Bring them in the court, the CJP added.

Justice Mansoor said the petitioner walked out of the Parliament, avoided debate on the amendments in the parliament, undermined the Parliament, and now has approached the Supreme Court against the amendments. He questioned should such a case be heard by them by putting everything on hold.

Justice Ijaz said exercising Article 184(3) of the Constitution we are hearing the case and when we find that Fundamental Rights are involved then the locus standi of the petitioner is immaterial as this is a matter of public importance. Justice Mansoor said there is public importance, but do we ignore the fact that the petitioner has undermined parliamentary democracy?

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2023