By Sohail Khan in The News,August 30, 2023
ISLAMABAD: Chief Justice of Pakistan Umer Ata Bandial Tuesday declared the Supreme Court (Practice and Procedure) Act 2023 as a direct interference in the administrative affairs of the country’s highest court and observed the government itself had conceded that there were some defects in the law.
A three-member bench of the apex court, headed by Chief Justice Umer Ata Bandial, heard the petition of PTI Chairman Imran Khan, challenging the amendments made by the previous coalition government to the National Accountability Ordinance (NAO) 1999.
Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah were the other members of the bench.
Justice Syed Mansoor Ali Shah again suggested formation of full court for hearing the matter in hand, saying he still stood by his position that either a full court should be constituted or the Supreme Court (Practice and Procedure) Act 2023 matter be decided first.
“Good to see you and I hope that I will not be targeted for saying this,” Chief Justice Umer Ata Bandial told Makhdoom Ali Khan and Khwaja Haris, counsel for the government and PTI chairman respectively, after calling them to the rostrum.
The chief justice observed that for the first time such a law had been enacted for controlling the administrative authority of the Supreme Court.
“For the first time, the appellate jurisdiction of the court has been enhanced through this law, granting a remedy that is not available in the Constitution,” the Chief Justice remarked.
He said the counsel for the petitioner had submitted his response to the matter in hand.
The Chief Justice observed the court had understood the stance of Khan Sahib (Makhdoom Ali Khan), counsel for the ex-federal government who was critical of the current bench.
“But we spend so much time in this case while one of our learned members had asked for either constituting a full court to hear this matter or first decide the Supreme Court (Practice and Procedure) Act 2023,” the CJP observed.
“But the point you may not be aware of is that the attorney general had also conceded that there were defects in the said law and sought time for reviewing it,” the CJP said, adding the AG had also informed the court about the introduction of another law, the Supreme Court (Review of Judgments and Orders) Act 2023, which had created the clause for right of an appeal.
Justice Bandial cited to the counsel for the parties two orders passed by the court — one passed on June 1, 2023 and the other on June 8, 2023.
On June 1, the chief justice said the AG had informed the court that some of the provisions of Supreme Court (Practice and Procedure) Act 2023 and Supreme Court (Review of Judgments and Orders) Act 2023 were overlapping and sought some time for reviewing them until June 8, 2023.
On June 8, 2023, the CJP recalled that the AG submitted that as budget session was near, hence after the budget session, the parliament will correct the said law.
“So this is the background of the whole scenario and I am not sure as to what is the stance of the interim setup on the suspended law,” the CJP remarked.
The chief justice, however, questioned whether the proceedings concerning the other cases should be halted for the sake of suspended law.
“The only other option is that the court should continue to work and let the new parliament decide the said law,” the CJP remarked but added there was a presumption that the Act will survive.
“If it will survive, then why AG sought time for making amendments to the said law?” the CJP questioned.
Makhdoom Ali Khan, counsel for the federal government, pleaded that the courts were always cautious in declaring laws as void adding that he will not defend the position taken by the attorney general. “The position of attorney general should not be an obstacle in the way of my case,” Makhdoom Ali Khan told the court.
He cited judgments of the apex court, including Dr Mubashar Hassan as well as Baz Muhammad Kakar’s case adding that in Dr Mubashar Hassan’s case, Barrister Aitizaz Ahsan had sought constitution of a full court.
Khwaja Haris told the court that one of the apex court judgments heard by a five-member bench had declared that the constitution of benches was the prerogative of Chief Justice of Pakistan. Justice Syed Mansoor Ali Shah asked Makhdoom Ali Khan that in the presence of Supreme Court (Practice and Procedure) Act 2023, whether this bench should continue the instant proceedings or a full court should hear this matter.
Makhdoom Ali Khan submitted that in his opinion, a full court should be constituted to hear the NAB amendment’s case. The chief justice, while citing the objections made by the petitioner on amendments made to the NAO 1999, observed that the legislation was person-specific due to which certain people were benefited and one of the stances taken by the petitioner was that the concept of ‘benamidaar’ was totally changed. Their main case was that public property was the property of whole public linking with the fundamental rights of the people and the rights of the people have been affected through this piece of legislation, the CJP said, adding that the counsel for the petitioner had extensively argued on the matter of dishonesty as well. At this, Makhdoom Ali Khan said this law had affected the trusteeship when the NAB kept people in custody for 90 days in inhuman conditions.
Makhdoom Ali Khan submitted that the legislature had the right to make legislation and to repeal the laws as well adding that trust was vested in the public representatives through their chosen representatives. He again contended that the judgments of the apex court he had cited supported his case.
At the outset of hearing, the chief justice observed that one of their members had to come from abroad to hear this particular case and asked Khwaja Haris if the present amendments were made to the NAB law for refining the old amendments made in 2022.
“So forget about amendments made in 2023 and concentrate on 2022 amendments,” the CJP told Haris adding that Makhdoom Ali Khan had provided the court with a brief chart comparing both the amendments.
“Therefore, provide us with a brief as to what were included in the NAB amendments made in 2022 and I will correct them in the order and conclude the case at the earliest,” the CJP told Khwaja Haris. Meanwhile, Justice Syed Mansoor Ali Shah reiterated his stance for constituting a full court for hearing the instant matter. “I have nothing to do with the interim order passed by the eight-member bench suspending the Act but I still stand by my position that either a full court should be constituted in this case or the Supreme Court (Practice and Procedure) Act 2023 should be decided first.” Meanwhile, the court adjourned the hearing for today (Wednesday).
https://www.thenews.com.pk/print/1105052-sc-act-2023-direct-meddling-in-our-administrative-affairs-cjp
