Justice Syed Mansoor Ali Shah proposes full court to hear NAB amendments case

ISLAMABAD, August 18 (SABAH): Supreme Court of Pakistan Judge Justice Syed Mansoor Ali Shah on Friday advised Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial to form a full court to hear the Pakistan Tekreek-e-Insaf (PTI) Chairman Imran Khan’s petition challenging the amendments in the National Accountability Bureau (NAB) law. Justice Syed Mansoor Ali Shah has also asked the question that which fundamental right of the petitioner has been affected in the result of NAB Amendment bill 2022.

“I think that the NAB amendments case should be heard by the full court; the case will have its own impact,” Justice Syed Mansoor Ali Shah remarked during the 48th hearing of the petition.

Headed by CJP Bandial, a three-member bench, comprising Justice Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah heard the petitions.

During the hearing Imran Khan’s main counsel Khawaja Harif Ahmad did not appear. The junior lawyer Yasir Aman appeared before the bench informed about the unavailability of Khawaja Haris. The federal government’s lawyer Makhdoom Ali Khan appeared before the bench from Karachi through video link and presented his arguments.

Justice Syed Mansoor Ali Shah further said that the Attorney General for Pakistan Mansoor Usman Awan had raised an objection in the military court’s case. “Under Sections 3 and 4 of the Supreme Court (Practice and Procedure) Act, the case should be heard by a bench of at least 5 members,” he remarked, adding that the CJP should constitute a full court for the case.

Justice Mansoor said he had also suggested that a full court be formed for hearing the petitions challenging the military trials of civilians.

“My objection is that only the full court should hear such cases. The Supreme Court should first decide on the practice and procedure law,” he said during the hearing.

“The Supreme Court Practice and Procedure Act has not been decided yet. If it had, the matter would have been different,” he observed.

It must be noted that Justice Mansoor was one of the two judges who earlier said that it was important “to revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan [Umar Ata Bandial]”.

During the hearing, Yasir Aman, the assistant counsel of Khawaja Haris — the PTI’s counsel — told the court that Haris had asked for Aman to appear in his place owing to poor health. The Supreme Court allowed Aman to present arguments.

At the outset, Justice Mansoor slammed the PTI’s lawyer for failing to respond to what fundamental rights the amendments were circumventing.

“If you recall, I also asked during the 47th hearing which fundamental rights are being affected by the NAB amendments,” he remarked, adding that the question was put in the first hearing as well.

“The petitioner’s counsel could not give a satisfactory answer to the question of fundamental rights asked multiple times,” Justice Mansoor said.

During the hearing, CJP Bandial remarked: “I don’t think we can review the amendments made to the law in 2023. The NAB amendments of 2022 were challenged before the court.”

He then directed the PTI counsel to submit the new NAB amendments and their written responses and postponed the hearing till August 28.

He added that the case would be heard on a daily basis from August 28. “We want to dispose of the case as one of the members of the bench is nearing retirement.”

However, he cautioned: “It is not necessary that the verdict will be on the merits of the NAB amendments case. It is possible that the decision will come on the admissibility of the case.”

Justice Ahsan observed that each case had its own facts and merits. “The opinion given in one case is only for that case,” he said.

CJP Bandial then remarked when there is a difference of opinion, the decision is taken by the majority. He further said that the petitioner had presented their arguments over 22 hearings while the federal government had done the same over 26 hearings. “This case was not that long,” he said. Makhdoom Ali Khan argued that it is a speculative petition, adding that presenting all available arguments on behalf of his client is his responsibility.

CJP Bandial then asked the federal government lawyer Makhdoom Ali Khan why he was shying away from presenting arguments “on merit”. To this, the lawyer responded that he was not shying away from doing so but raising the inadmissibility of the plea was his responsibility.

“Why are you trying to leave the hearing,” CJP Bandial asked, to which the counsel said that the court had the right to either accept or reject his argument.

CJP Bandial then said that the court would decide the case after conducting daily hearings. Justice Shah also sought arguments on whether the current bench could hear the case after the Supreme Court (Practice and Procedure) law.

After coming to power in April last year, the then PDM government passed the National Accountability (Second Amendment) Act 2022 — a move that was heavily criticised by PTI, which termed the legislation an attempt to turn the anti-graft watchdog into a “toothless” organisation.

In June, the former prime minister challenged the amendments to the NAB ordinance, arguing that it is a violation of fundamental rights. The petition stated that the amendments will “virtually eliminate any white-collar crime committed by a public office holder”.

The NAB (Second Amendment) Bill 2022 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”.