ISLAMABAD (Dunya News) – If ordinances are to be introduced, then parliament should be dissolved, Chief Justice of Pakistan (CJP) Qazi Faez Isa remarked on Thursday, as the Supreme Court resumed hearing of arguments in the National Accountability (NAB) Ordinance 1999 amendment case.
The incarcerated founder of the Pakistan Tehreek-e-Insaf (PTI) joined the proceedings through video link from Rawalpindi’s Adiala Jail in light of the court order issued on the previous hearing.
“Through ordinances, the will of one person is imposed on the entire nation. Isn't this against democracy? Shouldn't the president of the country provide detailed justifications along with the ordinances,” the CJP said.
A five-member SC bench, headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa and comprising Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Hasan Azhar Rizvi, heard the case.
Unlike previous hearings, today’s proceedings were not live-streamed, but images of the PTI founder went viral on social media. The news of PTI founder's viral image irked the court which ordered an investigation to penalise the rules violator.
THURSDAY'S PROCEEDINGS
At the outset of the hearing, Advocate Khwaja Haris came to the rostrum.
The chief justice said he (Haris) was a counsel in the original case and his absence was strange. The CJP said the court would like to hear his stance.
Haris said he would assist the court in the matter.
GOVT LAWYER ADVANCES ARGUMENTS
Advancing his arguments, federal government’s lawyer Makhdoom Ali Khan argued that the NAB amendment case was sub judice before the IHC.
At this point, Justice Isa asked him to present his arguments loudly so that the PTI founder could hear him on the video call.
Justice Minallah asked the lawyer, “Was the petition pending before the high court accepted for hearing?”
The lawyer replied in the affirmative.
IHC RECORD SOUGHT
The chief justice then sought the complete record of the case in the IHC.
He inquired when the petition against the NAB amendments was filed in the Islamabad High Court.
The lawyer replied that the application was filed in the Islamabad High Court on July 4, 2022, while the petition filed with the apex court was numbered on July 6, 2022, and the hearing resumed on July 19.
The chief justice inquired as to why the main case had taken so much time, to which the lawyer said the entire year of 2022 was taken up by the arguments of the petitioner's counsel.
NAB ORDINANCE ENACTMENT
Justice Jamal Mandokhail, at this juncture, questioned how long it took to make the entire NAB ordinance.
Attorney General for Pakistan Mansoor Usman Awan responded that [former president] Pervez Musharraf assumed power on Oct 12 and the ordinance was out in December, adding that Musharraf made the entire ordinance in less than two months.
The chief justice asked why so much time was spent on hearing a few amendments, to which the federal government's lawyer replied that considerable time was spent on the debate over the admissibility of the case.
PLEA ADMISSIBILITY
Justice Athar Minallah inquired how many hearings were conducted in the central case, to which Makhdoom Ali Khan replied that in all, 53 hearings were held.
CJP Isa inquired how this case became admissible in the Supreme Court while being under hearing in the high court.
“Did the court address this question in its decision on the central case,” he questioned.
Makhdoom Ali Khan replied in the affirmative, saying the court had mentioned this matter in the decision. He also read the relevant paragraph of the Supreme Court's decision.
CJP Isa remarked that it was quite astonishing that the NAB amendments case went on for 53 hearings.
During the hearing, CJP Isa asked whether the chief justice [he] could remove any judge from the bench.
Justice Athar Minallah remarked that a seven-judge bench had ordered the conduct of elections within 90 days, but they did not happen.
Justice Isa mentioned that under his leadership, a three-judge bench decided to hold elections within 12 days. “We issued the order of Practice and Procedure Act of the Court. The order for the 21st amendment was also an order of the court,” he recalled.
Justice Minallah remarked that whether delaying the Practice and Procedure Act was right or wrong, it was delayed by the order of this court.
At this point, government’s lawyer Makhdoom Ali Khan informed that one member of the bench, Mansoor Ali Shah, gave an opinion that no action should be taken on the NAB case without finalising the Practice and Procedure Act.
Chief Justice Isa remarked that if the law is not right, it should be declared null and void. “If laws continue to be obstructed in this manner, how will the country progress? If you don't like the law, then dismiss the whole case after hearing it,” he added.
Justice Jamal Mandokhail remarked that whether or not delaying the law at the bill stage was equivalent to obstructing parliamentary proceedings.
PARLIAMENT DISSOLUTION
The chief justice remarked, "Then why not just dissolve parliament? Whether we break the law or the military breaks it, it's all the same. How long will we continue to delude ourselves?"
Justice Isa further stated that "if I don't like any law, should I suspend it? Is this integrity? Can we ever progress as a nation? By obstructing one law and then hearing other cases on a daily basis, is this not a form of exploitation?"
Justice Minallah questioned, “How is the government an affected party in this case.” He said that according to the Practice and Procedure Act, only the affected person could bring an appeal.
Justice Jamal Mandokhail added that not only the affected person, but the law also mentions the affected party [could bring an appeal].
The chief justice remarked that there could be two interpretations: the right to appeal is restricted only to the affected party; members of the government bench who passed the bill can also be part of the affected party. But, he added, if this happens, this court would have 150 applications in front of it.
Justice Minallah stated that it's the legislators who have written the words "affected party" in the law.
REGULAR HEARINGS
CJP Isa further remarked that if any case lands in court, it should be heard on a daily basis and then decided, adding that obstructing the law was like playing games with the system.
Chief Justice Isa asked, "If the Supreme Court declares the Custom Act null and void, can't the government file an appeal?"
The government lawyer, Makhdoom Ali Khan, argued that indeed the government could go for an appeal.
At this, the CJP said to him, "So, let's move forward."
Lawyer Makhdoom Ali Khan, while continuing his argument, mentioned that in the follow up to 2022 ordinance, amendments were made in 2023, but the court struck down the 2022 amendments in its decision.
At this, the chief justice remarked, "So, you're raising technical objections," to which lawyer Makhdoom Ali responded, "These technical objections also exist."
Justice Isa stated that “We will ask the PTI founder about these questions. Please take note of these points, PTI founder.” While making this remark, the chief justice smiled subtly, and upon seeing this, the PTI founder also smiled covering his face with his hand.
A PARLIAMENTARY DISPUTE
Lawyer Makhdoom Ali Khan stated that the PTI founder could have changed the law during his stint as the prime minister, but instead, ordinances were introduced.
“The matter of NAB amendments was a parliamentary dispute which was brought to the Supreme Court through collusion. This was a national issue which was brought to the Supreme Court,” the lawyer went on to say.
At this point, the court prohibited Makhdoom Ali Khan from using such language.
Justice Mandokhail inquired whether any member of a party could vote against their party's decision on a bill.
The chief justice said there was an application for reconsideration on this matter.
STRONG PARLIAMENT
Justice Minallah stated that it was necessary to have a strong parliament, independent judiciary and fearless leaders against corruption. “Do you think these three things exist? Here, instead of ending it, another ordinance is being introduced.”
The chief justice stated that if ordinances are to be introduced, then parliament should be dissolved. “Through ordinances, the will of one person is imposed on the entire nation. Isn't this against democracy? Shouldn't the president of the country provide detailed justifications along with the ordinances,” he added.
Justice Minallah observed that strengthening parliament was the job of politicians.
Later, the court adjourned the hearing indefinitely, issuing orders for presenting the PTI founder through video link on the next hearing.
BACKGROUND
The amendments made to the NAB Ordinance 1999 not only reduced the four-year term of bureau’s chairman and the prosecutor general to three years, but also placed all regulatory bodies functioning in the country out of NAB’s domain.
Under the amended law, the term of accountability court judge was set at three years and the court was bound to decide a case within one year.
The PTI founder in his petition prayed that the amendments be struck down on grounds that they were unconstitutional. He argued that amendments to sections 2, 4, 5, 6, 25 and 26 of the NAB law are against the constitution, along with amendments made to sections 14, 15, 21 and 23.
He contended that amendments to the law are contrary to the fundamental rights under articles 9, 14, 19, 24, 25.
A three-member bench was formed on July 15, 2022. The first hearing of the case against the NAB amendments was held on July 19 after Advocate Khawaja Haris filed an application under Article 184/3 against the NAB Ordinance amendments.
Both the federation and NAB were made parties in the petition.