Judges usually don’t question motives for legislation, govt’s counsel tells SC

ISLAMABAD: The federation’s counsel has argued unless the court identifies the constitutional prohibition it cannot strike down a law.

Makhdoom Ali Khan, representing the Federation, stated that the court can declare a law unconstitutional if it curtails the independence of the judiciary. The exercise of judicial review inherently becomes different when the judges think what they think is the best for society, adding all over the world the courts did not question the motive of the legislation.

A three-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, on Thursday, heard former prime minister Imran Khan’s petition against the amendments in the National Accountability Ordinance (NAO), 1999.

Justice Mansoor said “if tomorrow the Parliament decides to get rid of capital punishment then can the court say it cannot. The families of the deceased come to the court and say that their rights are affected as the accused could be hanged.” He questioned would this change also apply to the pending murder trials?

Makhdoom Ali Khan said after the change in the law the persons on death row will not be hanged. He contended at times there were 220 capital offences in England i.e. for entering into the forest, or stealing a certain amount. But now there is no capital punishment in England for these and many other crimes, except treason.

He submitted that due to capital punishment, many European countries do not have extradition treaty with Pakistan because they think if a person is convicted in murder case in their countries, if extradited to Pakistan he will be hanged.

Justice Ijazul Ahsan remarked that in Islamic law there is the concept of an eye for an eye. He questioned can the State abolish capital punishment. The Federation’s counsel replied: “We should not see Islam with a narrow mind.” Islam also recognises “Diyat” if there is a law for an eye for an eye. He said capital punishment existed prior to Islam, adding many Islamic laws are customary, based on the customs which were prevailing at that time. He then presented views of Islamic scholars i.e. Dr Khalid Masood, former chairman of the Council of Islamic Ideology, and member of the Supreme Court Appellate Bench, Hashim Kamali, and many others. He said Hashim Kamali considers what happens in the Parliament is “Ijma” and “Ijtihad”.

Makhdoom submitted that the holy Quran sanction also the “Qisas” and “Diyat”. He said on account of “Diyat” the families of the victims have condoned the murderer, adding the courts in Pakistan have not rejected this.

The chief justice said in Islam there is also the concept of “Amanat” and “Khayant”. He said a lot of emphasis has been put on “Khayant” and public trust by an officeholder. The CJP asked trusteeship in Islam is just an imagination or has significance. He questioned whether the violation of trust is a crime and remarked that the composition of the offence has been changed.

Justice Mansoor questioned; “Do I need to be Muslim for the interpretation of a statute.” Whether morality of belief has something to do with it, or it should be interpreted in accordance with the constitutional provisions. “Do we (the judges) set aside the law on the basis of morality or belief or on the basis of the violation of fundamental rights.”

Justice Mansoor further said that if the Parliament decided to abolish the NAB law then what power the courts have to strike down or repeal it. He noted when the Parliament has the power to make law then it also has the power to repeal it. He said the court cannot say as there is no accountability law, therefore, declare it (the amendments in NAB) unconstitutional.

The chief justice inquired from the counsel does he not think some fundamental rights are involved in this case. He also questioned can the government make changes in the Pakistan Penal Code (PPC) or the property law that affect the rights of the citizens?

He submitted that in 1999, the NAO was made with retrospective effect from 1985. If the Parliament can make law with retrospective at that time, then why it cannot make the law with the retrospect affect again. He said it is not his arguments that there should be no accountability of the officeholders.

The case was adjourned until February 7.

Copyright Business Recorder, 2023