ISLAMABAD: Supreme Court judge Mansoor Ali Shah on Wednesday said the apex court could intervene to get the resignations of the Pakistan Tehreek-i-Insaf (PTI) members from the National Assembly accepted within a few days.

The judge’s offer came during a hearing of a petition, filed by PTI Chairman Imran Khan, challenging changes to the National Accountability Bureau (NAB) law, through his counsel Khawaja Haris.

The lawmakers’ constituencies cannot be kept hanging for so long, as it is against the concept of parliamentary democracy, the judge observed.

Justice Shah said he was baffled that PTI members, whose resignations have yet to be accepted by the NA speaker, were drawing salaries but not holding their seats in the lower house. Justice Shah also recalled the Islamabad High Court (IHC) had directed PTI members to appear in person before the National Assembly speaker and record their statements so that a final decision could be taken about the fate of their resignations.

Justice Shah says lawmakers cannot keep their constituents in limbo

Mr Haris, the PTI counsel who finally closed his arguments in the case, explained that PTI members resigned from the seats but the speaker had not accepted the same, barring a few.

“What prevents the speaker from accepting the resignation,” wondered Justice Ijazul Ahsan. He added that the discretion was being exercised “unevenly by the speaker”.

CJP Umar Ata Bandial asked whet­her the PTI members who had won subsequent by-elections on the seats that were left vacant after the acceptance of the resignations had joined parliament, or whether those were seats still empty. Justice Bandial also said that the petitioner was stating that the present assembly was not “constituted properly in accordance with the constitutional mandate”.

Constituents in limbo

Justice Shah explained that the resignations cannot be accepted unless the member “appears before the speaker to express their willingness” about quitting parliament.

“It is the considered belief and opinion of PTI members,” the counsel arg­u­­ed, “that the power or authority to form a government at the Centre had been assumed by PDM through corrupt means in breach of the contract of trust.”

This political perception has subsequently been validated by the laws introduced by the present government whereby they have managed to drastically change NAB laws to their advantage since all pending references involving charges of corruption and corrupt practices against them have become ineffectual and for future too they have made themselves immune from prosecution for corruption and corrupt practices, he claimed.

The counsel said the only way to restore faith in the assembly and the trust of the people was to go for fresh elections since sitting in the house wou­­ld amount to a “tacit admission of the legitimacy of the PDM government”.

Justice Shah, however, described the arguments of the counsel as his subjective opinion, saying that political decisions were the party’s prerogative, but the question at hand was not “political but rather constitutional since the trustee can resign but he has to vacate the seat” instead of keeping it in limbo.

“I am not concerned with the reasons for the resignations but what concerns us is keeping the seats in limbo,” Justice Shah observed. The CJP recalled that there were some petitions pending in this regard.

The assemblies are the house of debate, Justice Shah emphasised, adding all kinds of debates could take place in the assembly and the members should keep raising their voices, instead of leaving the house.

“Even if I keep on shouting, they [PDM] still pass the amendments,” the counsel retorted.

‘Immunity to army officers’

Earlier, Justice Shah observed the court wanted to understand that the presidents, prime ministers, or chief ministers enjoy immunity during the time they hold office and their actions cannot be challenged, but this immunity was not available in case of criminal acts. Then how this immunity was extended to the members of the armed forces, he questioned.

The counsel argued that the rationale given in the 2001 Asfandyar Wali case for excluding the members of the armed force from the ambit of the NAB law should be defined by the legislators.

He added army officers while officiating their service “carried out sensitive jobs, therefore, they should not be exposed in the public since it would also be harmful to the force”.

Justice Shah also asked the counsel if he had ever researched whether this protection for army officers was also available in other countries.

“This becomes strange since the civil servants were also working for the nation and during the course of their service also take sensitive decisions but they did not enjoy the same protection as enjoyed by the members of the armed force,” he added.

At this, Justice Ahsan explained that the armed forces were involved in “national security and middle-tier officers usually retire after 18 years and could fall within the ambit of accountability laws” besides the “internal accountability mechanism in the forces were stringent”.

The apex court will resume the hearing on Jan 10 when senior counsel Ma­­khdoom Ali Khan on behalf of the government will commence arguments.

Published in Dawn, December 15th, 2022