The Supreme Court on Tuesday, while issuing notices to the federation, law secretary, attorney general and the National Accountability Bureau (NAB) in connection with PTI Chairman Imran Khan's application challenging the amendments to the NAB Ordinance, asked the party why it did not raise its objections in parliament.
A three-member bench, comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, heard the petition.
It asked PTI Vice-Chairman Shah Mahmood Qureshi why his party did not raise its objections when the bill was passed, with the chief justice remarking that there was "no alternative" to parliament.
At the outset of the hearing, the chief justice asked Imran's lawyer Khawaja Haris whether the amendments to the ordinance were supported by judgements. Haris replied that they were in contradiction to Supreme Court judgements, not in line with them.
Justice Ahsan observed that "many" amendment bills were passed in haste.
Haris said the court would have to consider the United Nations Convention against Corruption while hearing the case.
"Majority of the cases are related to the misuse of power or assets beyond means," he told the court, adding that after the amendments, a case cannot be made unless the person in authority himself benefits in some way.
At this, Justice Shah asked whether lawmakers should not be allowed to use their privileges. "If parliament declares tomorrow that murder is not a crime, will it be allowed?" questioned Haris in return.
Justice Shah then asked whether the court could overturn the law should parliament abolish the death penalty to which Haris replied that it was a different matter.
"When the matter is related to corruption and the national treasury, it becomes a question of fundamental rights. If a patwari steals someone's money, action is taken against him. Should action not be taken against a powerful man?" the counsel asked.
Chief Justice Bandial pointed out that the amendments had not abolished the misuse of authority from the list of crimes. He then asked Haris to inform the court first of the amendments which he believed to be in violation of fundamental rights.
"Can the legislative powers of the parliament not be reviewed by the courts? Can a law benefitting certain people not be challenged?" asked Justice Ahsan.
He observed that retroactive application of the amendments to cases dating back to 1985 would mean they would all be disposed of.
Haris argued that it was the public's right to ensure that their representatives did not misuse their authority. "Misuse of authority is [still] a crime but it has been made impossible to prove it."
Accountability courts could no longer accept information received from foreign countries as evidence, he said.
Haris argued that all cases related to fake accounts would end after the amendments.
Qureshi addresses court
During the hearing, the chief justice also asked PTI Vice-Chairman Shah Mahmood Qureshi to come to the stand.
Justice Bandial asked Qureshi to "think of the country, the nation and the Constitution".
"Democracy will function only when the parliament is functional. Your counsel has raised very good points." He asked, however, why the parliament could not debate those points.
Justice Ahsan also told Qureshi to raise the matter in parliament as people's representatives.
"The people's trust in you is not being fulfilled," Justice Shah observed.
When Qureshi said the amendments were discussed in a parliamentary committee meeting for several hours, Justice Ahsan said the former minister was perhaps talking of events prior to the ouster of the PTI government.
He further said that only President Arif Alvi had offered "token resistance" by not approving the bill.
The changes to the NAB law amendment ordinance were criticised by Imran and his party, with the PTI chairman saying the move would destroy the country. The ruling coalition, however, contended that graft cases against the PML-N leadership would continue, with Shahid Khaqan Abbasi saying it was not intended to end corruption cases against them.
The bill, along with the one on election reforms, was passed by the National Assembly and Senate in May. After its approval from both houses, the president's assent was required for it to become law.
However, Alvi sent back the bills, following which the government convened a joint sitting of the NA and Senate, which approved them. Alvi again refused to sign them, terming them "regressive", and sent them back. But procedurally, 10 days after a joint sitting passes a bill, it is considered law even if the president refuses assent.
Judges question why matter not raised in parliament
During the hearing today, Justice Shah questioned the petitioner's (Imran) right. "The petitioner walked out of parliament. He has the public's trust.
"Such serious amendments were passed by parliament. In such a situation, does the petitioner have the right to make a claim?" the judge asked.
Qureshi said that he was a member of the parliamentary committee that discussed the amendments but the chief justice asked him whether he had understood the bench's question.
"Where were you when the amendments were being passed? What are the PTI's numbers in parliament? Think about the country and the nation."
The CJP said he was aware the common man was affected by the cases heard by the apex court.
"The bill was passed without any hindrance," he pointed out, while Justice Ahsan said the arguments should have been raised in parliament.
Justice Shah also observed that parliament was the relevant forum to discuss the matter. "How did you become the affected party after exiting it and coming to the court?"
Qureshi responded that the PML-N had the majority and even if the PTI had opposed it, the bill would have been bulldozed through parliament.
The CJP said a recommendation was "hidden" in the bench's questions and the PTI should consider it for the people's sake.
"There is no alternative forum of the parliament.
"The staff-level agreement with the IMF (International Monetary Fund) has been done but it is not being accepted by the public. The currency is fluctuating every day," the chief justice observed.
The PTI requested the bench to link "benefits given to suspects [in accountability cases] under the amendments to court orders" — a move opposed by Additional Attorney General Amir Rehman.
Justice Ahsan asked why the government would have a problem if relief was linked to court decisions. Justice Shah pointed out that if the amendments were declared illegal, any benefit would be reversed.
"Legal action will be started if benefits are reversed," Justice Ahsan observed.
However, the additional attorney general informed the SC that the amendments had already been challenged in the Islamabad High Court and it would be appropriate to allow the high court to announce its verdict first.
Subsequently, the court issued notices to the federation, the law secretary, the attorney general and the NAB. It also asked the PTI vice-chairman to inform the court in a written response why his party did not raise objections when the amendments were passed.
The hearing was adjourned till 11am on July 29.
In his petition, the ex-premier named the Federation of Pakistan through its secretary Law and Justice Division and the NAB through its chairman as respondents in the case.
Imran requested the court to adjudicate upon questions of "great public importance" with reference to the enforcement of fundamental rights of citizens under articles 9 (security of a person), 14 (inviolability of dignity of a man, etc), 19A (right to information), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution.
Most of the amendments brought into NAB, he argued, were person-specific. "As such, it is just and fair to protect the constitutional and fundamental rights of the citizens of Pakistan."
The petition added that the amendment hands over the president's right to appoint the body's chairman to the government which will "maneuver by the bulk of the holders of public office to assume control over and influence the impartiality of the NAB chairman."
"The removal of hurdles in the normal time-tested and universally adopted methods of proving 'white collar crimes', reducing the efficacy, transparency, and fairness of these laws coupled with a free and independent judiciary, and freedom of the investigators and the prosecutors from the influence and interference of those very chosen representatives whose alleged corruption and corrupt practices they are tasked to investigate and prosecute."
He cautioned that making accountability law "weak and ineffectual" was a severe breach of the Constitution and underscored that the people of Pakistan had the right to hold their elected representatives accountable for their fiduciary actions.
NAB law amendment
The NAB (Second Amendment) Bill 2021 states that NAB's deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.
The bill has also reduced the four-year term of the NAB chairman and the bureau's prosecutor general to three years. After approval of the law, NAB will not be able to act on federal, provincial or local tax matters. Moreover, the regulatory bodies functioning in the country have also been placed out of NAB's domain.
It says that "all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions … shall stand transferred to the concerned authorities, departments and courts under the respective laws."
It has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB to ensure the availability of evidence against an accused prior to his or her arrest.
According to one of the key amendments, the act "shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999".