The Supreme Court adjourned on Thursday a case related to the amendments made to the National Accountability Ordinance, 1999 (NAO) – the law that governs the country’s top graft buster – for an indefinite period.
The apex court also ordered former prime minister Imran Khan to appear at the next hearing via video link.
The federal government in its appeal had requested the apex court to set aside the September 15 majority judgement that had declared amendments to the NAO illegal.
On September 15, 2023, the top court by a majority of two-to-one had ruled that the public representatives who benefited from the amendments made by the Pakistan Democratic Movement government in the NAO would have to face corruption references again.
Through the intra-court appeals, the federal government had argued that the PTI founder, who had challenged the amendments, was given opportunities during the hearing not only to make verbal submissions for 27 hearings but also to make submissions in rebuttal, whereas the federation was restricted only to answering queries from the bench.
A five-member SC bench comprising Chief Justice of Pakistan Qazi Faez Isa, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Azhar Hasan Rizvi resumed the hearings pleas against the NAB amendments.
At the outset of the hearing, the counsel for the government, Makhdoom Ali Khan, presented his arguments.
The incarcerated former prime minister appeared in the SC as a petitioner through a video link in the case. He wore a light blue shirt.
Senior counsel Khawaja Haris Ahmed, who had assisted this court in the same matter in the earlier round of litigation to represent respondent number one, also appeared in the court.
In the last hearing, the SC had said that the court would pass an order if the senior counsel would attend the hearing only upon payment of the fee.
When asked on Thursday, lawyer Harris said that he did not want any fee.
Justice Minallah asked whether the pending application in the high court related to the NAB amendments was fixed for a hearing. To which, the government counsel replied in affirmative.
The CJP asked him to seek a complete record related to the amendments from the high court.
CJP Isa also asked the lawyer to speak louder so that the former premier could hear him.
“What were the registrar office’s objections on the PTI founder’s plea back then?” Justice Minallah asked, to which Makhdoom responded that the petitioner had not approached any other forum for the matter.
The lawyer added that the SC had removed the objection and notices were issued to the respondents on July 19, 2022. Upon Justice Minallah asking how many hearings had taken place collectively in the main case, Makhdoom replied there were a total of 53.
CJP Isa asked why the case went on for an extended period, to which the government counsel replied that the petitioner took more time in presenting their arguments.
Here, Justice Mandokhail asked how much time it took to legislate the NAB laws in 1999. “The NAB laws were legislated within a month immediately after the martial law,” AGP Awan replied.
“It is very intriguing that the NAB amendment case was prolonged till 53 hearings,” the chief justice remarked.
“How was it accepted for hearing in the SC while sub judice before the [Islamabad] high court?” CJP Isa wondered. “Did the court answer this question in the main case’s judgment?” he further asked.
“Why did it take so long on the main case?” the CJP again asked. Makhdoom replied that the petitioner’s lawyer spent the “entire 2022” arguing his case.
Here, Justice Mandokhail asked how long it took to draft the “complete” NAO.
“[Former president Pervez] Musharraf came to power on Oct 12, 1999 and by December, the entire ordinance had been prepared. Musharraf had the entire ordinance made within two months,” the AGP replied.
The chief justice expressed his dismay at the case going on for a lengthy period: “Why did it take such a long span to hear a case pertaining to a few amendments? Makhdoom Ali Khan, you were present [as a lawyer] in the case; why did you take so long?”
Makhdoom then said that Justice Mansoor Ali Shah, part of the bench hearing the original petition, had advised not to proceed with the NAB law case without deciding the case of the Practice and Procedure Act.
At this point, the Khyber Pakhtunkhwa government’s lawyer came to the rostrum, stating that the hearing was not being broadcast live.
Justice Isa then told him to sit down since others’ arguments were ongoing. “We just wanted to bring it to your notice,” the lawyer said before sitting back down.
“If you suspend the law, and then this case is not heard, how will the country progress?” the chief justice wondered. “If you don’t like the law, then strike it down after hearing the whole case.”
“Till when will we keep living in this foolish age?” the CJP said, adding, “If I do not like a law, I suspend it; is this honesty?”
Justice Mandokhail questioned whether suspending a law at the stage of a bill not equivalent to suspending parliament’s proceedings.
CJP Isa again expressed concerns over the continuation of hearings despite the passage of a law, questioning the influence of an individual who persists in running cases against the law.
He emphasised that obstructing laws in such a manner hampers the progress of the country and undermines the system.
Justice Minallah further mentioned that any affected party, including government bench members who pass bills affecting such parties, can file an appeal. He wondered how the government was the affected party in the case.
CJP Isa state that there could be two interpretations, including the right of appeal was limited to the affected party and added that the members of the government bench can also be part of the affected persons.
If such thing happened, he said that there would be 150 petitioners in front of the court.
Justice Minallah said that legislators have written the word of “affected party”. The CJP stressed that decision should have been made by daily hearing the case rather than obstructing the law.
In response, Justice Minallah clarified that under the Practice and Procedure Rules, the affected party has the right to file an appeal.
While responding to the AGP, Justice Minallah said that they have started threatening judges through proxies. AGP Awan said that such things were “insulting”.
On Tuesday, a five-member apex court permitted the incarcerated PTI founder to appear before it in the case since he wanted to personally argue the matter. The hearing is expected to resume at 11:30am, according to the court order.
The top court directed the federal government and the Government of Punjab to make arrangements to ensure that the respondent could hear and address the court through the video link.
The bench comprising Chief Justice of Pakistan Qazi Faez Isa, Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Azhar Hasan Rizvi would take up the government’s pleas against the NAB amendments.
Prior to this, Khan got big relief after two courts in the federal capital granted him relief in separate cases, including the Al-Qadir Trust matter.
Judicial Magistrate Suhaib Bilal Ranjha acquitted the former premier in a case registered against him at the Khanna police station in connection with the Azadi March in 2022.
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This will be Khan’s first appearance before the apex court since his arrest from Zaman Park in August last year and conviction in the Toshakhana case.
But the party leaders and his sister have raised concerns about the security conditions in Adiala Jail for him.
“A security clampdown has been imposed on him because of which no lawyers’ meetings nor weekly meetings with political leadership are being permitted,” PTI spokesperson Raoof Hasan told a press conference.
