(CTN News) – On Tuesday, the Supreme Court stayed the execution of NAB graft Cases verdicts by accountability courts.
The orders were made when the court was considering the first intra-court appeals (ICAs) against its majority judgement from September 15 that invalidated changes to the accountability law.
The hearing was postponed until the full ruling on the bill limiting the chief justice’s authority is made public.
Two ICAs, one filed by the federal government and the other by former SSGCL managing director Zuhair Ahmed Siddiqui, were heard by a larger bench presided over by Chief Justice of Pakistan (CJP) Qazi Faez Isa and consisting of Justice Aminuddin Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah, and Justice Syed Hasan Azhar Rizvi.
Following its short order on October 11, in which it endorsed the PDM government’s law to manage the top court’s business, the Supreme Court (Practise and Procedure) Act 2023, the five-judge SC bench began hearing the ICAs.
Any appeal filed in the highest court against decisions made on petitions moved under Article 184(3) of the Constitution must be moved in the form of an ICA, the Supreme Court announced in a circular dated October 26.
Section 5 of the Supreme Court (Practise and Procedure) Act 2023 specifies that an appeal would lie before this court against an order passed by this court while exercising authority under Article 184(3) of the Constitution, as stated in the registrar’s office circular.
The federal government has asked the Supreme Court to postpone today’s hearing until the week of November 6 since its lawyer is unavailable today. The motion was filed on October 30.
The government’s attorney, Makhdoom Ali Khan, allegedly left for Paris after being “granted general adjournment” till November 3, as claimed in a motion filed by Advocate on Record Anis Muhammad Shahzad.
It was originally set for November 4, but he found out on Saturday (October 28) that he needed to return today instead. It was also stated in the application that “completely sold out, making a timely return impossible” meant that there were no available flights back to Pakistan on October 28 or 29.
Siddiqui was represented by Farook H. Naek, and the government was represented by Attorney General for Pakistan (AGP) Mansoor Usman Awan.
Naek requested a stay of judgement while the court considered proposed changes to the accountability law. Unfortunately, it was turned down. Due to the delay in publishing the detailed ruling on the law limiting the CJP’s powers, the Supreme Court has postponed the hearing.
AGP Awan came to the rostrum at the opening of the hearing to advise the court that Khan was out of the country and had requested a postponement.
At this juncture, CJP Isa remarked, “We have also received a few other applications.”
He then questioned Naek whether he agreed with the Supreme Court’s decision to strike down the NAB statute, and Naek said he did not.
To which the chief justice said, “You have written that according to the practise and procedures [law], a five-member bench should hear the NAB amendments case.” If Naek was sticking to his original stance, he was asked to explain his reasoning.
If you’re able to convince [the court] of this, we won’t have to get into the meat of your appeal. The Chief Justice has announced that a new bench will be formed in the event that petitions challenging the NAB’s changes are reinstated.
He then asked the attorney to “take back his point” and was told to wait for the verdict before discussing the specifics of the law that limited the authority of the CJP.
In response, Naek pleaded with them, “Do not do this. The ongoing appeals should continue. If this is implemented, cases would be filed in NAB courts. Following this, the judge made the observation, “See, Makhdoom Ali Khan has taken this ground in his application.” Naek has asked to be added as a respondent in this case.
The Chief Justice went on to say that Justice Mansoor Ali Shah’s lengthy dissenting note to the highest court’s ruling had also been made public. And “if the petitioner wants, he can also make amendments in the plea after the dissenting note’s [release],” he noted.
As Justice Isa put it, “If you would file a review petition, then we will not hear the intra-court appeal.” Naek subsequently notified the court that he was abandoning his requests for judicial review.
The CJP asked the federal government counsel’s assistant lawyer if he was “using the attorney general’s office as a shield” during the hearing; he responded that he was not.
The chief justice went on to say that the appeals will be reinstated if a review of the merits was conducted in accordance with the Practise and Procedures Act. He stressed again the importance of waiting for the NAB court’s complete ruling.
But Naek argued that the court should proceed with the proceedings “without delay” because waiting for the order would entail a delay.
Chief Justice Isa announced the implementation of the Practise and Procedures Act and the creation of an appeals process pursuant to Article 184(3) of the Constitution.
During this point in the proceedings, Justice Minallah made the remark that this was a “interpretation” case. He questioned, “How is the Federal Government the Affected Party in this case?”
The judge went on to say that an affected party might initiate an appeal because the word “person” was used in the practise and procedures statute.
Here, CJI Isa remarked that “not everything was done away with through the NAB amendments.” The NAB changes only affected the venue. Through the NAB reforms, no one was exonerated of wrongdoing.
Attorney Naek argued for Siddiqui, saying, “Going to the NAB court again in the verdict would affect my right.”
Then, AGP Awan claimed that the federal government was the aggrieved party and had thus appealed the decision.
Following the comprehensive verdict of the practise and procedures law, the NAB will hear ICAs, the chief justice noted. Naek asked the Supreme Court to delay its decision on the accountability legislation changes because he was afraid that the National Accountability Bureau courts would issue a punishment.
With regards to this matter, CJP Isa stated, “We can say that till the Supreme Court’s verdict [is announced], the NAB courts do not give a final decision.” AGP Awan further asked the Supreme Court to pause the implementation of its earlier order.
When Justice Isa questioned if any of the accountability legislation revisions had been upheld or if they had all been overturned, Naek said that the alterations made under the third amendment had not been changed.
He went on to tell the court that some of the amendments from the first two were nullified while others remained in effect.
At this point in the proceedings, Justice Minallah pointed out that the third amendment to the NAB laws was the focus of the majority judgement. He questioned how the court could have reached a verdict without taking into account the reforms instituted by the Third Amendment.
Khan’s assistant attorney informed the court that a second amendment was presented after the initial alterations were challenged, and that the petitioner had subsequently changed his plea.
The CJP asked the lawyer when the third amendment was passed, and he said May 2023. The time to revise the petition was still substantial, Justice Isa said.
The third amendment should have been deemed unconstitutional if the amendments had to be declared illegal. The issues raised by the third amendment should have been resolved, he remarked, given that they were mentioned in the verdict.
After the third change to the NAB laws, the chief judge emphasised that there were six hearings held on the topic.
Here, Justice Minallah pointed out that a five-judge bench was required under the practise and processes statute for cases challenging NAB modifications. The measure regulating administrative processes has been put on hold. He emphasised that there was never a pause in the act.
As for a ruling on this specific issue, CJP Isa pointed out that the detailed judgement of the procedural law had not yet been revealed.
The chief justice stated, “In such a situation, we cannot proceed ahead with this case today.” When the forum was changed, he said, “Are trial court testimony recordings admissible in another court?”
We do not want the trial court judge to have to act as an interpreter. A judge’s jurisdiction in a trial should be limited to that trial, Justice Isa remarked.
The CJP has started writing the order for today’s court proceedings at this point in the hearing.
Justice Isa told Naek that the lawyer had not even asked the court to delay its decision on the NAB law. Naek contended that the trial would start over if it were transferred from the NAB to an anti-corruption court.
Justice Minallah pointed out that the third amendment specified that every trial would start over. The CJP remarked that “ease for trial court judges instead of difficulties” is what’s needed in this situation.
The Supreme Court then served notices on AGP Awan, the AGs of all the provinces and Islamabad, and the PTI leader. It issued orders for the court order to be sent to Imran in the Adiala district jail via the warden.
The hearing was then postponed until a thorough ruling on the Practise and Procedures Act could be made public. The court denied Naek’s request to delay the ruling on the NAB laws and ordered that no final decisions on graft cases be issued by accountability courts pending the outcome of the pending appeals.