ISLAMABAD: A senior lawyer defending amendments to the NAB law urged the Supreme Court on Wednesday to trust parliament and politicians since without trust there could be no politics which is the basis of democracy.
“Since the court is so strong on trust, it is time that judges also trust parliament and politicians, without which there can be no politics as it is the basis of democracy,” argued Makhdoom Ali Khan before a three-judge SC bench.
Chief Justice of Pakistan (CJP) Umar Ata Bandial, who was heading the bench, however, observed that the court does trust parliament but the people of this country also trust the judges, adding that there are certain baselines for developing confidence which need to be followed where judges were also accountable.
The CJP made the observation during the hearing of a petition filed by former prime minister Imran Khan challenging the August 2022 amendments to the National Accountability Ordinance (NAO).
CJP observes present amendment to NAB law seen as having diluted criteria of accountability
“There is a political controversy in the country and right after the partition in 1947, corruption emerges as an issue,” the CJP observed, recalling that petitioner’s counsel Khawaja Haris Ahmed had also highlighted during his arguments that corruption is an “issue in our society”.
“Today again our society is divided,” Justice Bandial observed, reminding that at the start of the hearing in the present case, the government’s counsel had accepted striking a balance between the interest of the people of the country and personal interests of individuals.
Question really arises to what extent the court could go to preserve and protect the Constitution and what criteria should the court adopt in this regard, CJP observed, emphasising that the Constitution means the people of Pakistan.
Since 1947, the CJP reminded, “we have anti-corruption laws, which survived all these years and also enjoyed the acceptance of the people” — a law that requires the public-office holders to be responsible and accountable.
But it is said that the present amendment to the NAB law has relaxed or diluted the criteria of accountability, the CJP observed, asking what the court should do to save things beneficial for the progress of the country.
“These are the questions, though the court is not here to adjudge political or social issues,” he said, adding that the trust doctrine was accepted and has become the basis before becoming the office holders.
Justice Bandial also explained that there were certain funds (dam funds) which the court was vested with, but it gave these funds to the State Bank of Pakistan (SBP) and then placed details on its website since “we are trustees, as a result of which criticism of the judiciary diminished”.
At this, counsel Makhdoom Ali said that since the trust was at the heart of the matter, the court should also trust parliament and politicians. Citing a number of instances, he argued that courts have always recognised that the Constitution has entrusted the function of writing the laws upon parliament and that the courts also understand the very fact that they could examine a law made by the legislature, but it does not mean that the judiciary was superior to parliament.
The counsel reminded that through the 17 Amendment, certain laws under the Sixth Schedule of the Constitution could not be amended without prior approval of the president. Besides, he added, the Seventh Schedule enlists the number of laws which could not be amended.
But both these schedules were amended through the 18th Constitution Amendment and now the NAO 1999 was one of those laws which could be amended, the counsel argued, adding that this was a conscience decision of the lawmakers at that time of adopting the 18th Amendment.
When the CJP asked how many legislators had passed the amendments to the NAB law, the counsel replied that more than 159 members of the National Assembly had voted in favour of the amendments. Though PTI lawmakers were absent in the lower house of parliament, they discussed the amendments in the Senate when these were passed, he said.
The counsel said the present petition was a unique one where the petitioner, who being the prime minister, had repeatedly stated that there were problems in the NAB law which needed to be resolved. Besides, he added, former finance minister Shaukat Tareen and information minister Fawad Chaudhry had also repeated the same stance.
The counsel said he had a USB containing all the statements of the former prime minister and his ministers which could be displayed if the court wanted.
Besides, the previous government itself had made a series of amendments through five ordinances which were followed up in the present amendment, the counsel contended, adding that the present case has now raised the question of bona fide of the petitioner for challenging the same in the court.
Published in Dawn, January 12th, 2023
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