NAB amendments case: SC directs Centre, Punjab to make arrangements for IK appearance through video link

ISLAMABAD: The Supreme Court directed the federal and the Punjab governments to make arrangements for the appearance of founder Pakistan Tehreek-e-Insaf (PTI) Imran Khan on May 16 (Thursday) through video link in the NAB amendments case.

A five-judge bench, headed by Chief Justice Qazi Faez Isa and comprising Justice Aminud Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah, and Justice Syed Hasan Azhar Rizvi heard the intra-court appeal (ICA) of the federation and some appellants, whose petitions were pending before the Islamabad High Court (IHC).

At the outset, Justice Athar said one of the respondents to whom notice was sent in jail wanted to appear before the Court in person. He said that there is a note from him (respondent no 1) that he likes to address the court.

“How can we condemn him unheard, and deny access to him (Imran).”

“This matter pertains to the NAB’s political engineering, therefore, it would be fair to hear from him as well,” Justice Athar added.

Upon that the chief justice said, “The note has been brought to his knowledge in the courtroom.”

The CJP observed that the case is not about individuals’ rights, adding this is a case of vires of the law and if he wanted to be represented by lawyers then there is no issue.

“Pure legal questions involved in the case then how the Court will be assisted by a person who is not a lawyer,” remarked Justice Faez.

The chief justice then took a short break to sort out differences among the members. The judges left the courtroom, and discussing the matter they again assembled after five minutes. The chief justice then announced: “We are allowing the respondent No1 (Imran’s) request and asked the attorney general to make arrangements for his appearance through video link.”

Justice Athar asked the Attorney General for Pakistan (AGP) that he would have to ensure that the video link functions properly, otherwise, they would adjourn the case. The CJP said why adjourn? Adding; “there will be consequences if video-link does not function.”

The bench ordered the NAB additional prosecutor to provide written reply on how much money was spent, how much recovered, and where it went, and what is the share of NAB. The prosecutor was also directed to submit reports in the last 10 years on how many people were prosecuted by the Bureau, how many people were convicted, and how many were declared by the courts innocent.

The Court on 31st October 2023 had issued notices to former prime minister Imran Khan and chairman National Accountability Bureau (NAB). The notices were also issued to the Attorney General for Pakistan (AGP) and the Advocates General of all the provinces and Islamabad. The SC office was directed to serve the copies of appeals and its order to Imran Khan in jail.

Additional Prosecutor NAB, Attorney General for Pakistan Mansoor Awan and Advocate Generals of Islamabad and all the provinces except Khyber-Pakhtunkhwa supported the federation’s ICA.

The bench issued notice to Khawaja Haris, who had represented Imran Khan in the petition filed by him. The chief justice said Imran Khan will appear but Khawaja Haris would clarify the legal provisions.

During the proceeding, the chief justice asked the NAB prosecutor to furnish details which political parties’ leaders remained in jail, and for how long. Justice Athar said when he was a judge of the Islamabad High Court he had noticed that the NAB vehemently opposed the petitions of the accused for even protective bails, but now it (the NAB) maintains that there is no case against them.

Makhdoom Ali Khan, representing the federation, contended that there cannot be any fundamental rights in choosing the fora, adding it is the legislature that is competent to pass laws for the trial of persons involved in criminal cases.

The chief justice questioned whether the legislature without providing any forum can amend or repeal laws. Makhdoom replied, yes. Justice Jamal inquired whether any province can legislate to control corruption and corrupt practices. Makhdoom responded, yes it can. He submitted that the Parliament is competent to repeal or amend the laws.

Justice Athar noted that the majority judgment preferred the SOP over the legislation.

A three-judge bench, headed by former chief justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah on September 15 by a majority of 2:1 declared the amendments null and void and ordered the reopening of all corruption cases worth less than Rs500 million that were previously closed against political leaders from various parties and public office holders.

Justice Athar asked the additional prosecutor NAB that if he would be able to satisfy the Court that 35 references pending before various accountability courts against the political leaders are triable before other forums then this judgment would go.

Last year Imran Khan, through a number of lawyers including senior advocate Khawaja Haris, had filed a petition under Article 184(3) of the Constitution against the amendments in the National Accountability Ordinance 1999.

Makhdoom Ali Khan formulated the submission, which was also adopted by Farooq H Naek, who appeared on behalf of two appellants, the AGP and AGs of Islamabad and all the provinces, except KP.

Makhdoom submitted that the SC majority judgment in the NAB amendments case is a nullity in the law as it was passed by a bench of the apex court, which was not constituted in accordance with Section 2 and 4 of the Supreme Court (Practice and Procedure) Act, 2023, resulting in coram non judice.

Makhdoom maintained that the Act was passed on April 21, 2023, challenged therein was thrown, but most of its provisions were upheld by the majority of the Full Court. He said the petition filed under Article 184(3) of the Constitution against the NAB amendments was not maintainable in light of the decision of the Supreme Court in the case of Benazir Bhutto vs Federation.

He argued that the amendments made to the National Accountability Ordinance, 1999, vide NAB Amendments Act, 2022, were struck down by the SC majority judgment despite the fact that many of the amending provisions were borrowed from the Ordinances, enacted by the government of that respondent No1 (Imran) was the prime minister.

Makhdoom submitted that the petitioner did not approach the apex court bona fide because none of the amendments in the Act affected the rights of the petitioner or the public at large.

He contended that the court has carried out an academic exercise as no factual controversy adversely affected the petitioner. The number of amendments made were ex-facie not discriminatory.

The federation’s counsel further argued that it is in the legislative scheme that the Parliament legislate and the Court made efforts to save the legislation. The amending law cannot be contrived to violate the fundamental rights enshrined in the constitution.

He also submitted that some of the amendments brought have been in accordance with the orders/judgments of the superior courts, which were not challenged to the effect.

The majority judgment has re-written the constitution and created an artificial distinction between the civil servant, and the holder of public office. The majority judgment accepted the prescribed limit of amount made by the NAB but struck down the limit made through legislation.

Copyright Business Recorder, 2024