No amendment to NAB law flouts basic rights, SC told

ISLAMABAD: The Supreme Court (SC) was told on Thursday that none of the amendments made in the National Accountability Ordinance (NAO) 1999 were contradictory to fundamental rights of citizens enshrined in the Constitution, and the petitioner (Imran Khan) had no locus standi to approach the court and challenge the ordinance he had also enacted during his government.

A five-member larger bench of the apex court, headed by Chief Justice Qazi Faez Isa, heard the Intra Court Appeal (ICA) filed by the federal government challenging the apex court’s verdict, striking down some of the amendments made by the previous coalition government (PDM) in the NAB law. Other members of the bench included Justice Aminuddin Khan, Justice Jamal Khan Mandokhel, Justice Athar Minallah and Justice Syed Hassan Rizvi.

Makhdom Ali Khan, counsel for the federal government, giving his arguments, said, “It is totally a political case wherein a politician had called in question the legislation made by the parliament”, adding that a political debate had been initiated in the court rather than in parliament.

He submitted that the petition of the respondent was not maintainable as the matter was also pending before the Islamabad High Court. Justice Athar Minallah asked the counsel as to whether the IHC had accepted the petition for hearing. The counsel replied in affirmative.

At this, Chief Justice Qazi Faez Isa sought complete record of the hearing of IHC besides its order.

Makhdom submitted that the SC registrar had raised objections over the respondent’s petition, but later on it was removed and fixed for hearing.

The chief justice questioned as to how it was accepted for hearing in the apex court when the matter was already pending before the IHC. He further questioned as to whether the SC had addressed the point in the main judgment.

The counsel replied in affirmative and also read out the relevant paragraph of the judgment.

Makhdom Ali submitted that the NAB amendments were challenged before the IHC on July 4, 2022, while the SC had numbered the respondent’s petition before it two days later.

To a question, Attorney General Mansoor Usman Awan told the court that after Musharraf came to power on October 12, 1999, the entire National Accountability Ordinance (NAO) 1999 was made within two months.

The CJP asked the counsel as to why the main case in the SC regarding the amendments took too much time, to which the counsel replied that the court took sufficient time only for the petition to be declared maintainable.

At this, Justice Athar Minallah observed that whether it was good or bad, but the court had kept the Practice and Procedure Act suspended, adding that in lieu of its suspension, there was no presence of a committee.

Makhdom Ali submitted that Justice Syed Mansoor Ali Shah, who was a part of the bench hearing the main petition, recommended not to proceed with the NAB amendments case until and unless the decision on the Supreme Court (Practice and Procedure) Act 2023.

The CJP observed that if a law was not right, should it be struck down after hearing, adding that how the country would make progress if the law would be struck down in this manner. “If I don’t like a law, then whether I will suspend it and would it not be a dishonesty,” the CJP remarked.

Justice Jamal Khan Mandokhel questioned as to whether suspending a bill is not tantamount to suspend the proceedings of parliament.

Justice Athar Minallah observed that as per Section 2 of the Supreme Court (Practice and Procedure) Act 2023, an affected party could file an appeal and that could be any individual.

The judge questioned as to how the federal government was an affected party in the case and explained that “only an affected person could file an appeal”.

Makhdom Ali contended that not only an aggrieved person but, according to the law, an affected party could also file an appeal.

“A citizen can come to the court with the contentions that his rights have been infringed upon,” the counsel submitted. “The respondent was also a citizen as well,” Justice Jamal Mandokhel observed, adding that “we must follow the Constitution”.

Chief Justice Qazi Faez Isa, however, observed that there could be two interpretations; the right to appeal has only been limited to the affected party, and the affected party can also include members of the treasury bench, who pass the bill.

The counsel for federal government, however, contended that the respondent (Imran Khan) first enacted NAB ordinances, and later challenged it in the Supreme Court. At this, Justice Mandokhel observed that maybe he changed his mind.

“There has to be no corruption and the politicians are ought to strengthen the parliament,” Justice Athar Minallah remarked, adding that in our jurisprudence this principle has been completely overlooked.

“To eradicate corruption, you need a strong parliament, independent judiciary and a fearless media,” Justice Minallah remarked. “You deal with the statutes on the basis that it is constitutional,” Makhdom Ali contended.

Substantiating his point, Makhdom Ali contended that it is the duty of the court to put the statute and to find out every possible reason for reconsidering that statute.

In this respect, the counsel cited the case of Dr Tahirul Qadri, mentioning pages 424, 427 and 428 of the judgment besides citing relevant paras 12, 16, 17 and 18.

The counsel submitted that the respondent had 182 members in the National Assembly and they should have opposed the bill for amendments to the NAB law, adding that when the matter again came to parliament they boycotted the session.

“Whether a debate was held on bill in the parliament,” Justice Hassan Azhar Rizvi asked the counsel to which he replied in affirmative.

The counsel submitted that when the second amendment bill was tabled for discussion, they did not attend the session and later on approached the court for challenging the amendments made to the NAO 1999. He further submitted that 166 votes were cast in favour of the bill.

Meanwhile, Chief Justice asked senior lawyer Khawaja Haris if he was going anywhere? “No, I am not,” Khwaja Haris replied.

At this, Justice Athar Minallah, in a lighter vein, said the main petitioner was also not going anywhere as he was in Adiala jail. At this, there was laughter in the courtroom.

Meanwhile, the CJP noted down a short order stating that Makhdom Ali Khan commenced his arguments while Khawaja Haris would not charge any fees for assisting the court. The court further noted down in its order that NAB deputy prosecutor had submitted replies while Makhdom Ali would continue his arguments. “As I will not be available next week, therefore, all the parties will be intimated about the next date of hearing subject to availability of judges,” the CJP noted in the order.

The court further held that arrangements for video-link facility to the respondent Imran Khan Niazi would continue for arguing before the court.

Earlier, in pursuance of the court’s last order, the incarcerated former PM Imran Khan appeared through video link from Adiala jail in light blue T-shirt and watched almost three-hour-long proceedings, which were not telecast live.

The courtroom No 1 was jam-packed with large number of PTI leaders, including former information minister Shibli Faraz, former senator Muhammad Faisal, Ali Muhammad Khan, lawyers as well as media persons, including international media.

During the course of hearing, the photo of Imran Khan was also leaked from the big video screen through laptop, and it was learnt that the staff operating the video-link did so that prompted the police to start an investigation.

Sources said the SC authorities had started the investigations into the matter, adding that police would take action against whoever was found involved in it as it was done in violation of the courtroom rules.

“Directions have been issued to review the CCTV footage and identify the person who captured the image. After this, the frame size of the video link was minimised.”