CJP urged to form full court to hear plea against accountability law amendments

ISLAMABAD: Justice Syed Mansoor Ali Shah again requested the Chief Justice of Pakistan to constitute a Full Court for the hearing of the petition against the National amendments in the National Accountability Ordinance.

A three-member judge bench, headed by CJP Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, on Tuesday, heard former prime minister Imran Khan’s petition against the amendments in the National Accountability Ordinance (NAO), 1999.

At the end of the proceeding, Justice Mansoor said he had written a note, wherein, he directed the counsels of the petitioner and the respondent to assist on the question of whether this Bench should continue hearing this case or should this case be adjourned till the Court first decides the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023 or in the alternate, should a Full Court Bench hear this case pending decision on the constitutionality of the Act.

Earlier, the CJP said the Court had already spent so much time on that case (NAB amendment). He said the Attorney General for Pakistan had conceded the defects in the Supreme Court (Practice and Procedure) Act, 2023, and sought time to review the law. He said it was the reason that the Court had passed judgment on the Supreme Court Review of Judgment and Orders Act, 2023. Earlier, the CJP said to Khawaja Haris, “Good to see you”, and added that “we have understood the point of view of Makhdoom Ali Khan.”

Justice Bandial said the government had created a new right of appeal, while the constitution was clear that there couldn’t be a second appeal against the judgment of the apex court. He stated on June 1 and 8, 2023 the AGP had sought time to get instruction from the government. The National Assembly did not make amendment to the Practice and Procedure Act, and the government of the day has still not decided about this law.

Makhdoom Ali Khan, representing the government, argued that a Full Court judgment in Dr Mubashir Hassan states that the order or verdict of the courts can be suspended but not the law. The Full Court that through an interim order suspended the NRO in Dr Mubashar Hassan case was recalled in the final order.

The CJP said through this Act salient feature of the constitution i.e. independence of the judiciary was assailed. First time it was tried to control the powers of the chief justice, therefore, an eight-member bench stayed the operation of the law.

Khawaja Haris said the Act was a direct encroachment on the power of the apex court. This was the reason that the eight-member order was necessary. Justice Ijaz observed even the government realised to review the Act as there was a defect in it, adding the order was still in the field, and could be disregarded.

Justice Mansoor questioned in light of the pendency of the Act’s case should the hearing of the instant matter be continued. “I know there were 46 hearings, but I want to formalise my opinion after hearing the counsels.” Makhdoom said the law was still in the field and a Full Court be constituted to decide that case.

Justice Mansoor remarked that the petitioner had challenged specific provisions of the amendments made in the NAB law, but now he was changing the petition as more amendments made in the NAO. Khawaja Haris said he had sought the apex court’s permission to amend the petition. “I have given the list of each provision that has been challenged, and why I (petitioner) challenged them. The chief justice told KhawajaHaris, “If you would add more facts to the petition then we don’t have time.”

Makhdoom Ali Khan contended that the petition was speculative in nature, and the petitioner had not identified the Articles and rules laid down by the Supreme Court which is against the constitution. He submitted that the petitioner had not stated which provisions of the law were ex facie unconstitutional. The petitioner is only feeling that the provisions are unfair and unconstitutional.

The CJP said the ground taken in that case was trusteeship, which was based on the judgments of the apex court. It has been contended by the petitioner that through amendments, immunity has been given to a certain class, which violates the principle of trusteeship. In the statement of account, the provision related to credit has been changed, and also the concept of “benami” changed.

“If I am not mistaken, the petitioner’s focus is on the elected representatives and exonerated the civil servants. The civil servants, due to the NAB law, were hesitant to make policies,” adding, “there was so much mistrust at the policy level,” the CJP said.

Makdoom argued that the Court is looking at law which reduces rigour and the statute is made to transfer cases from one forum to another. “I have not come across any provision of the constitution which is violated by reducing the sentence, and transfer of cases from one court to another court.” He said in the USA, capital punishment in 40 offences was changed to a lesser punishment.

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2023