SC bars trial courts from issuing verdict on NAB cases

ISLAMABAD: The Supreme Court Tuesday adjourned the hearing on the government’s appeal challenging the top court’s National Accountability Bureau's (NAB) law amendments verdict indefinitely till the issuance of a detailed order on the practice and procedure law.

The apex court has also ordered trial courts to conduct hearings related to NAB references, but barred them from issuing any verdict until the court issues its verdict on appeals against verdict on NAB law amendments.

This was the first intra-court appeal filed following the implementation of the aforementioned act, the hearing of which was held by a five-member bench of the apex court headed by Chief Justice Qazi Faez Isa and comprising Justice Amin-Ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Hasan Azhar Rizvi.

It should be noted that a three-member bench — headed by former chief justice Umar Ata Bandial and comprising Justice Ijaz Ul Ahsan and Justice Syed Mansoor Ali Shah — had conducted more than 50 hearings in the case, declaring the most of the NAB amendments null and void on September 15 by a majority of 2-1.

The verdict restored the corruption cases against the public office-holders after striking down some of the amendments made by the Pakistan Democratic Movement (PDM) government to the National Accountability Ordinance (NAO) 1999, declaring it against the rights pertaining to the public interest enshrined in the Constitution.

Subsequently, the federal government filed an appeal under Section 5 of the SC law against the apex court's order.

The hearing

During the hearing of the appeals today, Attorney-General for Pakistan Mansoor Usman Awan represented the government.

“The federation had appointed Makhdoom Ali Khan as the counsel in this case. He is abroad and has requested adjournment,” he said.

CJP Isa said that there were other petitioners in the case as well.

Pakistan People's Party (PPP) Senator Farooq H Naek also requested becoming a party in the case. “My client Zohaib Ahmed Siddiqui is affected by the decision of NAB amendments,” he said.

CJP Isa said that the minority decision of the NAB amendments case has also been issued.

Commenting on the appeal, the chief justice said: “In the appeal, the federal government has raised a question related to practice and procedure law.”

Meanwhile, Makhdoom Ali Khan's assistant lawyer Saad Hashmi appeared in the apex court during the hearing. He said that Practice and Procedure Act (2023) was applicable to the NAB amendments case.

“In the NAB amendments case, the bench was not formed by the committee of judges,” he added.

The chief justice asked him if he wanted to pursue the point in the case.

“If your argument is accepted [then] the applications against the NAB amendments will be considered pending,” CJP Isa said, adding that the five-member larger bench will then decide on the pending application.

Hashmi said that the point related to the practice and procedure law was raised earlier as well.

The AGP, on the other hand, endorsed the application of the SC Practice and Procedure (2023) Act to appeals challenging the NAB amendments verdict.

The chief justice remarked that the court is also facing a technical problem at this point. “The detailed decision of the practice and procedure case has not yet come. It is not known what will be written in the detailed decision regarding the disposed of cases.”

CJP Isa asked during the hearing if it would be better to wait for the detailed decision before taking any other decision.

“Is no one else, but only Farooq Naek's clients, affected by the NAB amendments?” he questioned.

Naek said many people benefitted from NAB amendments.

“It is not correct to say that anyone benefitted from NAB amendments. No one has been acquitted by NAB amendments, only the forum of cases has changed,” the chief justice remarked.

Naek, on the other hand, requested to suspend the decision of the NAB amendments case.

“The [apex court] should suspend decision on amendments, otherwise this case will be delayed and decisions will come from the accountability court,” he said during the hearing.

However, the CJP refused to suspend the NAB amendments verdict. “Only accountability will prevent the courts from making final decisions,” he stated.

He added that NAB will decide the appeal against the amendments after the detailed decision of SC (Practice and Procedure) Act 2023 is issued.

The court will have to see the application of Section 4 if arguments are given on the point of the SC (Practice and Procedure) Act 2023.

“If this point of the practice and procedure act is implemented, the five-member bench will hear the NAB amendment case afresh. There have been many hearings of this case before, we will decide on this point in one or two hearings,” the chief justice said.

The AGP said that in the decision of NAB amendments, some amendments were removed to the extent of politicians and retained to the extent of bureaucrats.

“This decision has created problems in the accountability courts where public office holders and bureaucrats are co-accused,” the AGP said.

“How is the federal government affected by the decision of NAB amendments?” Justice Athar Minallah asked, adding that the Section 5 of the SC (Practice and Procedure) Act 2023 refers to victims.

The AGP said that the government is the affected party if the court has invalidated the federal law.

The Supreme Court issued notice to PTI chief, NAB, AGP, all provincial advocate generals and advocate general for Islamabad in the case.

The SC ordered that Khan be provided with copies of appeals to the PTI chief in the jail.

Meanwhile, during the hearing the apex court dismissed the review petitions filed in the case of the NAB accused on the basis of withdrawal.

“The detailed decision of the Supreme Court Practice and Procedure case is yet to come,” the ruling mentioned.

The SC, in its ruling, stated that the possible objection raised in appeal will depend on the detailed decision of the SC (Practice and Procedure) Act 2023.

“It would be appropriate to hear the NAB amendment appeals after the detailed decision,” the court said in the short order issued following the hearing.

“It was told that after the third NAB amendment, there were six hearings of the case. After the third Amendment, the trial courts are also confused as to how to proceed,” the court said in its ruling.

It added that the trial of recovered cases will continue but decisions should not be made after the NAB amendments.

“Any accused will also be entitled to seek bail from the trial court,” the ruling mentioned

CJP Isa said that the trial court judges may be confused by Supreme Court's decision in NAB amendment case. “In the judgment of the NAB amendments case, no observations were made on a part for the trials.”

He maintained that there should have been a clear order from the apex court for the trial court judges.

“The job of trial court judges is not constitutional interpretation,” CJP Isa said.

It should be noted that the government had contended that by setting aside the law passed by parliament and making amendments to the NAB law, the apex court had crossed its powers.

It was further contended that parliament was competent to legislate adding that it had enacted a law making amendments to the NAB law.

“If a legislation is repugnant to the fundamental rights of citizens, then the court can set it aside,” it contended but added that the amendments made to the NAB law did not affect the fundamental rights of citizens.

After the verdict, the NAB reopened cases against political bigwigs including the former prime ministers.

Last year in June, Pakistan Tehreek-e-Insaf Chairman Imran Khan had filed a petition in the apex court under Article 184(3) of the Constitution praying for annulling the amendments for being “ultra vires to the Constitution”.

The amendments made to the NAB law were struck down by the court including the one which limited the NAB jurisdiction to cases involving over Rs500 million and one which allowed the accused to claim the amount of plea bargain deposited after being acquitted.

The judgment authored by former CJP Bandial declared the petition of Imran Khan as maintainable on account of violating Articles 9, 14, 24 (protection of property rights) and 25 (equality of citizens) of the Constitution and for affecting the public at large because the unlawful diversion of state resources from public development projects to private use leads to poverty, declining quality of life and injustice.