NAO case: How bench or IK can decide it’s public importance issue, asks SC judge

ISLAMABAD: Justice Mansoor Ali Shah questioned how the Supreme Court (SC) bench members or Imran Khan who has challenged the amendments in the National Accountability Ordinance (NAO), 1999 would decide that an issue of public importance is involved in this case.

The chief justice earlier, while heading a three-judge bench, which heard the former Prime Minister Imran Khan’s petition against the amendments in the NAO, 1999, said when the question of fundamental rights and public importance is raised then the conduct of the petitioner becomes irrelevant.

Justice Mansoor questioned; “How three of us (member of the bench) or a person (Imran Khan), who brought the case before the Supreme Court can determine the public importance.”

Justice Mansoor previously, many times during the hearing of this case, questioned how the question of public importance is involved as no one else except Imran Khan challenged the amendments before the apex court.

During the proceeding on Friday, Justice Mansoor questioned which fundamental rights of the petitioner have been violated, as his petition highlights the violation of salient features of the Constitution and Islamic provisions. He said if the petitioner was genuinely a member of the House then he should have participated in the debate, instead of abstaining from the National Assembly (NA) proceeding, when the law was passed. That is his locus standi, added the judge.

Justice Mansoor further questioned whether the Parliament be left empty at any stage, saying the parliamentarians are also the trustees. The petitioner intentionally left the parliament empty, and not performed his responsibility, and wanted the Court decide this matter that is his locus standi, he stressed and said he (Imran) deviated from his constitutional role.

During the proceeding, the chief justice again said; “We should get the reply from the other side (petitioner).” Justice Mansoor said his counsel is sitting in the court, and he can get instruction from his client.

Justice Mansoor inquired from the counsel that there is a case where a person becomes a member of the parliament and remains absent when the law is debated and later he challenges it to the court. Makhdoom replied that there is no such jurisprudence. He; however, argued that though the PTI MNAs had resigned from the NA, but had the members in the Senate at that time when the amendments in the NAO were approved. The petitioner had the opportunity to show up his rank and file in the Parliament to defeat the amendments but opted to remain absent.

The federal counsel further submitted that at the time of the passage of the bill, there were 157 members of the PTI in the Assembly, as the Speaker had not accepted their resignations. Therefore, there was a possibility they could have shown majority and defeated the bill.

Justice Mansoor said the petitioner has deliberately ignored the forum for that people elected him to debate their issue in the parliament. However, instead of debating the issue in the particular forum he chose to challenge the bill before the Court when lost the political debate.

Makhdoom argued whether the court would allow the political controversy to be resolved before the judicial forum. He asked the Court to respect the Parliament that has wisdom, policy and responsibility to their colleagues. He said the Court has to see the conduct and the bona fide of the petitioner.

The chief justice said that when the question of fundamental rights and public importance is raised then the conduct of the petitioner becomes irrelevant. Justice Mansoor said the conduct is not relevant in cases of public importance and FRs conduct where the petitioner is an ordinary citizen, but here the petitioner has been a lawmaker and had the opportunity to defeat the bill. He stated; “We (judges) are talking of democracy, but does the constitution allow the way things have happened in the country. He (Imran Khan) had boycotted the parliament when the bill was passed, while he had numbers to defeat the bill.

Justice Ijaz said when the Court is seeing whether the constitutional boundary has been crossed then the petitioner’s conduct becomes irrelevant. He said the petitioner was not getting benefit out of this case, adding as a citizen he brought this case to the apex court. He has no axe to grind if the amendments in NAO are set aside. Makhdoom said the benefits are not always pecuniary benefits as it could be political mileage.

Makhdoom contended that striking down the legislation requires facts, not issues or apprehensions. It requires material evidence and not the belief that will be administered in another way. He said the court usually upholds the statutes rather than strike them down and in cases of controversy waits for the right time to decide. The Supreme Court is the appellate court and gets the wisdom of the lower forums where the facts are thrashed out. He said the petitioner stepped out of the legislation contest and chose not to vote in the bill.

At the onset of the proceeding, Makhdoom Ali Khan briefed the court about the dates and the figure of the members, who were present in the National Assembly, the Senate, and the Joint Session of the Parliament when the amendments were approved.

Copyright Business Recorder, 2023