ISLAMABAD: Justice Syed Mansoor Ali Shah on Wednesday wondered why the fate of NAB law should not be left to the will of the incoming parliament, which will be elected soon.

Justice Shah, a member of the three-judge Supreme Court bench hearing challenges to the Aug 2022 amendments to the National Accountability Ordinance (NAO) by former prime minister Imran Khan, also expressed surprise why the court was spending so much time on the case when even on the 50th hearing of the case, no instance of breach of any fundamental right has been highlighted.

And if the present case involves serious violation of the fundamental rights, then why not a single citizen concerned, or a financial institution or a political party ever came to the court though an individual who was a “runaway parliamentarian” challenged the NAB amendments before the apex court when he himself had not questioned the same in the parliament, wondered Justice Shah.

However, senior counsel Makhdoom Ali Khan on behalf of the government cited a 1993 Supreme Court judgment in which it was held that in some matters appeals should be left to the people of the country.

Justice Shah surprised by amount of time devoted to the case when no rights breach has been highlighted in 50 hearings

Chief Justice of Pakistan (CJP) Umar Ata Bandial, who headed the bench, however, regretted that through the amendments, the entire law had been put in disarray, adding that the points which needed to be answered were why offences in the accountability law were modified by changing procedural or evidentiary requirements as a result of which establishing offences has become more cumbersome since immunities have been granted like creating a slab of Rs500 million to fall within the jurisdiction of NAB.

The CJP observed that accountability is something which is fundamental to the democratic process, adding that the change of government after five years’ term itself was the accountability process.

The laws are always made by a democratic government for the benefit of the people, but the system of accountability should be more efficient and speedy, the CJP emphasised.

The CJP also conceded that the NAB law has been made humane now by reducing the 90-day remand, but the element of retrospective effect meant to benefit the accused by implementing it from the backdate was questionable.

The important point here is if the money cannot be recovered then liability also cannot be imposed, the CJP said, adding that there were many failures in the NAB law especially the way it has been implemented.

The CJP was also bitter over the fact that through the amendments, offences have been decriminalised.

The counsel, however, argued that the judiciary cannot judge the goodness or badness of the statute, adding the forum of NAB was

created in 1999 and it has been made worse now. This court could

do nothing had the legislature repealed the law, the counsel said, adding that if the legislature has the power to repeal they also enjoy the power to amend. He said that NAB was a bad draconian law with an objective to teach politicians a lesson and keep civil servants at bay and, as a result, decision-making process has been paralysed.

About concerns regarding lack of speedy process, the counsel retorted that NAB was still the speedy institution in picking up the people without any concrete evidence.

While citing Imran Tiwana case, Justice Shah observed that it had been clearly stated in the judgment that the court should intervene on matters when explicit violation of the fundamental rights was mentioned, but here after the 50th hearing, he still was unable to understand the breach of the fundamental right.

Earlier, at the outset of the Wednesday’s proceedings, Attorney General of Pakistan (AGP) Mansoor Usman Awan drew the attention of the CJP towards the fact that he never used the word defects in the Supreme Court (Practice and Procedure) Act but had stated that both Supreme Court (Review of judgment and order) Act were overlapping.

The CJP accepted the clarification, but observed that the court had earlier complimented the capability of the law ministry for amending the NAB law in an intelligent manner, but regretted that through the practice and procedure law, the government had attempted to make the CJP a rubber stamp. The CJP, however, appreciated that the court had great respect for the counsel and his intellect.

He observed that the parliament was very busy during the month of August since it passed many laws, but the practice and procedure was a low priority.

Published in Dawn, August 31st, 2023