Justice Mansoor Ali Shah of the Supreme Court has issued a 27-page dissenting note on the NAB amendments verdict, observing that members of the armed forces and judges are also accountable under the accountability laws. In a majority 2-1 verdict, the Supreme Court (SC) had on September 15 annulled some amendments made to the National Accountability Ordinance (NAO), 1999 during the tenure of the PDM government. Headed by former CJ Umar Ata Bandial, the three-member bench included Justice Mansoor Ali Shah and Justice Ijaz-ul-Ahsan. In his dissenting note that has been issued now, Justice Shah has said that during the course of over 50 dates of hearings in the case, a question was also raised as to whether the judges of the constitutional court and the members of the armed forces enjoy exemption from the NAB Ordinance. In his opinion, both entities are “fully liable under the NAB Ordinance, like any other public servant of Pakistan”.
Justice Shah has articulated a position that has been around for decades – why is it that only one class, politicians, is meant to be held accountable? The NAB verdict by previous CJ Bandial was not much of a surprise for many in the legal fraternity as they had expected him to strike down some amendments to the NAB laws before he retired. However, Justice Mansoor Ali Shah had observed that this “matter undoubtedly falls within the exclusive policy domain of the legislature, not justiciable by the courts”.
On Tuesday, the Supreme Court of Pakistan indefinitely adjourned the hearing on the government’s appeal against the apex court’s verdict in the NAB amendments case, saying it can only go ahead once detailed order is in regarding the SC practice and procedure law. At the heart of it all has been the debate on whether the judiciary has jurisdiction to invoke in matters related to parliament and politics. The SC’s reinterpretation of Article 63A had led to many legal experts criticizing the blurring of lines in the sacrosanct separation of powers doctrine. The same happened when the apex court did a pre-emptive strike of legislation that had not yet become a law (SC Practice and Procedure Bill). Now that a new chief justice is in, there has been some hope that the judiciary, the executive, and the legislature will go back to the constitutionally mandated roles assigned to each entity of the state. So far, the superior judiciary has not disappointed. From a landmark verdict on the trial of civilians in military courts to the live telecast of an important case (SC Practice and Procedures Act), the transparency by the top court has been heartening. There can be critique of judicial verdicts and there can be diversity and dissent within the courts, something most would agree signifies the beauty of a functioning judiciary – but a strict adherence to the constitution is important for all components of the state. That would include the executive as well.