Economy was at the brink of collapse today & court will also have to see public interest: CJP Umar Ata Bandial
Says good governance & accountability are included in the fundamental rights
Justice Ijazul Ahsan says court has to see if NAB laws violate the fundamental rights of people
Justice Syed Mansoor Ali Shah questions why the PTI did not oppose the bill in the assembly if it believed it to be wrong
ISLAMABAD ( Web News )
Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on Friday observed that elections themselves were a form of accountability as he sought further arguments on a petition filed by Pakistan Tehreek-e-Insaf (PTI) Chairman and former prime minister Imran Khan challenging the recent amendments to accountability laws. Chief justice remarked that the economy was at the brink of collapse today and court will also have to see the public interest. Chief justice said that good governance and accountability are included in the fundamental rights.
A three-member bench comprising the top judge, Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, heard the case.
The CJP regarded described polls as a measure of “political accountability” in which voters hold their representatives answerable, while Justice Ijazul Ahsan said that the court has to see if NAB laws violate the fundamental rights of the people.
At the outset of the hearing on Friday, Additional Attorney General Amir Rehman said that Advocate Makhdoom Ali Khan had been nominated as the federal government’s counsel in the case after which the court granted him permission to present his arguments.
Taking the stand, Makhdoom Ali Khan said neither the bar councils nor civil society had raised any objections to the NAB amendments.
Here, Imran Khan’s lawyer Khawaja Haris Ahmed pointed out that the Islamabad Bar Council had challenged the law in the high court.
Makhdoom Ali Khan said that efforts were being made to turn the Supreme Court of Pakistan into the “third chamber” of parliament. “Several NAB cases have been fought [over the years]. The honourable judges know what happens in the assets-beyond-means cases.
“Should we just believe that before 1999 the country was mired in corruption and there was no progress,” he asked, arguing that the economy today is in a difficult situation. “Nowadays, investors have stopped investing [money].”
The lawyer said that the president, instead of approving the NAB law, had sent a letter to Prime Minister Mian Muhammad Shehbaz Sharif, which included suggestions regarding the amendments. “We have made the letter part of the case too,” he stated.
Makhdoom Ali Khan said that Imran Khan should be asked why he was opposing the amendment now when he himself was in favour of them earlier. “If this is a political strategy, he should use another forum instead of the court,” he contended.
To this, Justice Ijazul Ahsan said that the court is not seeing who introduced the law, but whether it violates fundamental rights.
“Also tell us how NAB contributed to the economy,” Justice Syed Mansoor Ali Shah asked.
The chief justice also remarked here that the economy was at the brink of collapse today. “The court also has to look at the public interest,” he said.
During the hearing, Chief Justice of Paksitan Justice Umar Ata Bandial said that some new amendments had been made to the NAB law. According to the new bill, all corruption cases involving an amount under Rs500 million would not come in its purview.
Referring to it in the hearing on Friday, Justice Ijazul Ahsan asked if the bill would be included in the record of the court’s proceedings. “The clause on keeping corruption amounting to less than Rs500 million outside the jurisdiction of NAB was included in the first amendment,” he observed.
PTI’s lawyer replied that he had submitted an additional request in that regard and highlighted that the clause could have “grave consequences”.
Here, Justice Shah said that to challenge the bill, the petition would have to be amended.
Meanwhile, Makhdoom Ali Khan contended that the new law cannot be challenged until it becomes “an Act of the parliament”.
He argued that if the president does not sign the new amendment, the matter will go to a joint session of the parliament. “It is too early to say whether the recent amendment to the NAB law will be approved in the joint session,” the lawyer added.
Subsequently, the chief justice remarked that the case is one in which the court will not act in haste. He also said that elections themselves were a form of accountability, adding that during the polls, the people held their leaders answerable.
Imran Khan’s lawyer said that even the present amendments were a violation of the constitutional mandate, arguing that laws opposing the basic structure of the Constitution could be challenged.
He added that they — the government — had rendered the law ineffective. Here, Justice Syed Mansoor Ali Shah asked: “Is it our job to fill the empty spaces?”
Meanwhile, Justice Bandial, addressing Imran Khan’s lawyer, said that his plea stated that there should be accountability on assets beyond means as it was a part of the fundamental rights. “Good governance and accountability fall under fundamental rights,” he observed.
Separately, Justice Syed Mansoor Ali Shah said that decision-making institutions could not be caught under the NAB amendments. “If a civil servant makes money, they can still be held answerable”. “If there is a crackdown on decision-making institutions, no one will invest in Pakistan,” he stated.
Justice Ahsan observed that under the NAB amendment law, the definition of assets in excess of income had been applicable since 1985. “This means that the law was formed decades ago but it is being defined now.”
He said that in such a case, punishments from the past will have to be repealed and fines will have to be returned. “There will be demands for a refund of the money deposited in the national treasury through plea bargains,” Justice Ahsan said.
He then inquired: “Can amnesty be given to certain persons by making a law?”
For his part, Khawaja Haris Ahmed said that even Hazrat Umar (RA) was questioned about excess income, claiming that the NAB amendment was an “abuse”.
However, Justice Shah interjected that a law cannot be struck off just on the basis of abuse, highlighting that parliament was a reflection of the people’s principles.
“It is true that the parliament is subject to Constitution,” he said, but added that he was personally against the argument that amendments in the law could not be against the basic structure of the Parliament.
Justice Ijazul Ahsan remarked that the government was trying to get its ‘sins’ forgiven through the tweaks.
Khawaja Haris stated before the court that the current amendments were a “violation” of the constitutional mandate, maintaining that the court could annul the amendment if it was in conflict with the basic constitutional structure.
Justice Mansoor Ali Shah asked if the independent judiciary was included in the basic structure of the constitution, and which authority of the judiciary had been reduced by the NAB amendments.
Justice Ijazul Ahsan, stating his position, said that the powers of accountability have been reduced by NAB amendments. He questioned if accountability was a part of parliamentary democracy.
The PTI counsel replied that accountability was necessary for good governance, and that “good governance could not be imagined without accountability”. He added that pending cases had become ineffective due to NAB amendments.
Justice Mansoor Ali Shah stated that the petitioner was asking to bring the amendments to a certain level and asked if they would return to form NAB if the government abolished it in the future.
Khawaja Haris said that cases pertaining to illegal use of powers and assets in excess of income had ended due to the NAB amendments.
Chief Justice Bandial stated that accountability was necessary in cases of assets in excess of income, however, people in small housing societies were arrested in the case of one or two plots.
Justice Mansoor Ali Shah remarked that when a project failed, authorised government officers were arrested.
“If the arrests continue, which officer will take any decision for the country?” he questioned, adding that the NAB amendments had not eliminated any crime and arrests could not be made on decision-making.
Khawaja Haris replied that after the amendments, all the cases would be removed from the accountability courts.
Justice Mansoor Ali Shah said that it was important to respect the laws passed by the Parliament and that the amendments did not appear to conflict with any constitutional provision.
Justice Ijazul Ahsan maintained that the evidence received under the agreement on legal assistance rights from abroad in the NAB amendments was inadmissible.
“If there is a case of violation of fundamental rights in this case, then it will be heard, otherwise the jurisdiction of the court will not be formed,” he said adding that the current government may have tried to get its sins forgiven but the next reigning party would do the same.
He stated that if public money was used for corruption, it would be a violation of fundamental rights and could then be reviewed under the rules laid down in the Constitution.
Justice Shah questioned why the PTI did not oppose the bill in the assembly if it believed it to be wrong. “The structure of the law should be debated in the assembly instead of the court,” he said.
Subsequently, the court asked the lawyers to submit detailed written responses in the case and adjourned the hearing till August 19.
The apex court has also sought written responses from the National Accountability Bureau (NAB) regarding the amendments.
In his petition, the ex-premier Imran Khan named the Federation of Pakistan through its secretary Law and Justice Division and the NAB through its chairman as respondents in the case.
Imran Khan requested the court to adjudicate upon questions of “great public importance” with reference to the enforcement of fundamental rights of citizens under articles 9 (security of a person), 14 (inviolability of dignity of a man, etc), 19A (right to information), 24 (protection of property rights) and 25 (equality of citizens) of the Constitution.
Most of the amendments brought into NAB, he argued, were person-specific. “As such, it is just and fair to protect the constitutional and fundamental rights of the citizens of Pakistan.”
The petition added that the amendment hands over the president’s right to appoint the body’s chairman to the government which will “maneuver by the bulk of the holders of public office to assume control over and influence the impartiality of the NAB chairman.”
“The removal of hurdles in the normal time-tested and universally adopted methods of proving ‘white collar crimes’, reducing the efficacy, transparency, and fairness of these laws coupled with a free and independent judiciary, and freedom of the investigators and the prosecutors from the influence and interference of those very chosen representatives whose alleged corruption and corrupt practices they are tasked to investigate and prosecute.”
He cautioned that making accountability law “weak and ineffectual” was a severe breach of the Constitution and underscored that the people of Pakistan had the right to hold their elected representatives accountable for their fiduciary actions.