Is boycotting Parliament and coming to court not weakening parliamentary democracy, asks Justice Shah

Supreme Court Justice Mansoor Ali Shah, while hearing PTI Chairman Imran Khan’s petition against the August 2022 amendments to the National Accountability Bureau (NAB) ordinance on Friday, asked whether boycotting Parliament and then going to court was not weakening parliamentary democracy.

After coming into power in April, the incumbent PDM government passed the Nati­onal Accountability (Second Amendment) Act 2022 — a move that was heavily criticised by PTI, who termed the legislation an attempt to turn the anti-graft watchdog into a “toothless” organisation.

In June, the former prime minister challenged the amendments to the NAB ordinance, arguing that it is a violation of fundamental rights. The petition stated that the amendments will “virtually eliminate any white-collar crime committed by a public office holder”.

A three judge-bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ahsan, and Justice Mansoor Ali Shah heard the petition today.

As the hearing commenced, Justice Shah recalled that Imran and his party had abstained from voting on the NAB ordinance and asked if those who refused to vote had the right to approach the court.

“Can a National Assembly member leave the Parliament empty? Is bringing matters pertaining to the Parliament to court not weakening the legislature,” he asked.

Justice Shah observed that Imran’s resignation had not been accepted which meant that he was still a member of the NA.

“An MNA is the representative of the people of a constituency and is responsible for protecting their trust in him,” he stressed and asked if it was fair for a “trustee of the public” to boycott the National Assembly.

“Is boycotting Parliament and then coming to court not weakening parliamentary democracy,” the judge inquired.

“How would it be determined if this case is linked to the benefit of the people? Will three judges sitting here decide what is in the public interest and what is not?”

Justice Shah went on to ask if the nation was shouting against the NAB amendments, highlighting that the petitioner had not pointed out which fundamental rights of the people were being violated by the ordinance.

“Imran Khan’s lawyer talks about Islamic provisions and the structure of the Constitution … Imran Khan could have easily defeated the amendments in Parliament,” he remarked.

Here, senior counsel Makhdoom Ali Khan — who is representing the government and defending the amendments before the apex court — said if all the PTI lawmakers had attended the joint session of the Parliament, they would have been in the majority.

‘Boycotting Parliament a common practice’

Meanwhile, Justice Bandial said the court would seek a response from Imran on the matter.

“Should we not hear the petitioner’s argument only on the basis that his conduct was incorrect?

“Every leader takes recourse from the Constitution to justify his actions … boycotting Parliament was PTI’s political strategy. It is not necessary that every political strategy has a legal justification.”

The top judge went on to say that oftentimes even a legal policy looks ill-advised politically, adding that boycotting Parliament was a common practise worldwide. “The subcontinent has a long history of boycotts.”

‘Imran deliberately left Parliament empty’

At one point during the hearing, Justice Ahsan asked: “How many people voted in favour of the NAB amendments during the joint sitting of the Parliament?”

In his response, senior lawyer Khan said that 166 members had attended the session.

“In a joint sitting, the number of parliamentarians should be 446. This means that fewer than half of the members voted for the amendment,” Justice Ahsan observed, adding that the court would only examine fundamental rights and points of crossing constitutional limits.

He noted that the petitioner had challenged the NAB amendments, claiming that it was in violation of the public interest and fundamental rights.

“The question of Imran Khan’s conduct would have come into question if he was personally benefitting from the NAB amendments. Apparently, the petitioner does not seem to have any personal interest attached to the ordinance,” the judge maintained.

Here, Makhdoom Ali Khan argued that amendments were not necessarily challenged for personal interests. “The petitioner can also gain political advantage from challenging the NAB amendments.”

The lawyer stated that the PTI approached the court when its NA resignations were not approved and even when they were approved.

“Imran Khan deliberately decided to leave Parliament empty,” he contended.

At that, CJP Bandial said: “Maybe Imran knew he would not be successful in Parliament and this is why he came to court. Along with being a politician, Imran Khan is also a resident of this country.”

However, the government’s lawyer interjected that cases were based on facts and not speculation. “Instead of upholding or invalidating the legislation, the court can also return it without a decision,” he suggested.

On the other hand, Justice Shah observed that if the court declared the NAB law null and void today, “anyone will challenge laws in the SC tomorrow”.

Subsequently, the court adjourned the hearing till Feb 14.

NAB law amendment

The NAB (Second Amendment) Bill 2021 states that NAB’s deputy chairman, to be appointed by the federal government, would become the acting chairman of the bureau following the completion of the tenure of the chairman.

The bill has also reduced the four-year term of the NAB chairman and the bureau’s prosecutor general to three years. After approval of the law, NAB will not be able to act on federal, provincial or local tax matters. Moreover, the regulatory bodies functioning in the country have also been placed out of NAB’s domain.

It says that “all pending inquiries, investigations, trials or proceedings under this ordinance, relating to persons or transactions … shall stand transferred to the concerned authorities, departments and courts under the respective laws.”

It has also set a three-year term for the judges of the accountability courts. It will also make it binding upon the courts to decide a case within one year. Under the proposed law, it has been made binding upon NAB to ensure the availability of evidence against an accused prior to his or her arrest.

According to one of the key amendments, the act “shall be deemed to have taken effect on and from the commencement of the National Accountability Ordinance 1999”.