Why NAB law doesn’t apply to armed forces, asks SC

ISLAMABAD: The Supreme Court Wednesday questioned the exclusion of armed forces from the ambit of NAB law and asked as to why the Pakistan Tehreek-e-Insaf (PTI) had not raised objections in its petition challenging the amendments to the National Accountability Ordinance (NAO) 1999.

A three-member bench of the apex court — headed by Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah — heard the petition filed by former prime minister and Chairman PTI Imran Khan. Justice Syed Mansoor Ali Shah questioned the exemption of the armed forces from the ambit of the NAB law.

“The army is doing a big business in the country, then why it has been excluded from the amendments made to the National Accountability Ordinance (NAO) 1999,” the judge asked the PTI counsel Khwaja Haris.

“Why did not you raise objections in your petition to the exemption of armed forces from the ambit of the NAB law? You should have first raised it while challenging the amendments made to the NAO 1999,” he remarked.

Khwaja Haris replied that the armed forces were protected under the NAB law but not the persons who were or had been members of the armed forces and were holding, or had held, a post or office in any public corporation, bank, financial institution, undertaking or other organisation established, controlled or administered by or under the federal government or a provincial government or notwithstanding anything contained in the Pakistan Army Act, 1952 (XXXIX of 1952), or any other law for the time being in force, a person who is a civilian employee of the armed forces.

Khwaja Haris submitted that the cases pertaining to the misuse of authority, assets beyond etc. had been excluded from the offences under the amendments made to the NAO 1999.

Justice Ijazul Ahsen observed that under the previous law, once the prosecution proved that assets were amassed by illegal means, the case was made out but under the amendments, the burden of proof had been shifted to the prosecution.

“This is what my stance is that a colorable exercise has been made under the new amendments, benefiting a specific class,” Khwaja Haris submitted.

The chief justice observed that majority of people did not file their tax return in Pakistan but under the new amendments, there was no such possibility of netting those people as the offences had been excluded.

Khwaja Haris submitted that the standard of public office-holders was high in the laws introduced in 1860 and other previous laws but under the new law and amendments, the ingredients and onus had been changed and now the prosecution had to prove the allegation against an accused.

The counsel submitted that in the Asfandyar Wali case, the onus and burden of proof had been extensively deliberated upon.

There had been an exhausted discussion on presumption and onus of proof in the case, Haris submitted. He further submitted that under Section 9(a) (6) of NAB law, the burden of proof was on the accused but under the new amendments made to the NAO 1999, the burden had been shifted to the prosecution thus the very legislation as enshrined under Section 9(a)(6) had been totally wasted under the new amendments.

The PTI counsel submitted that the public money belonged to the public as mentioned in 9(a) (5). “How can you apply two standards? Can the court sustain such a breach of law?” Haris asked and said if the amount of corruption crossed Rs500 million, then it would be for the prosecution to prove the allegation.

Chief Justice Umer Ata Bandial observed that the counsel was linking the benefits of an individual with the rights of society. “But there must be a balance in the fundamental rights of the people as well,” the CJP observed.

The chief justice asked the counsel to give clear points about how the amendments had affected the rights of citizens as a whole.

At one point, Justice Mansoor observed that accountability was not necessarily under the NAB law, as it could be made under other laws as well adding that if a person managed to get out of the NAB law, he could be netted in other laws as well.

The chief justice said according to the counsel’s arguments, various crimes under the new amendments had been decriminalised adding that what would be the limit of remand and how the bail would be granted. “You do not have any objections to these amendments?” the chief justice further asked.

“These are good amendments and I don’t have any objections but my objections are on the retrospective effect of the cases,” Haris said. “Which of the offences in your view has been excluded from the NAB amendments?” Justice Mansoor asked the counsel to which Haris replied that offences like misuse of powers as well as assets beyond means were excluded from the NAB amendments.

“But offence like assets beyond means is still there in the NAB law,” Justice Mansoor Ali Shah observed. The court asked the counsel as to how much more time he will get for concluding his arguments.

Haris replied that he might finish it in another four sessions. The chief justice then asked him to come up with clear points as to how the new amendments had affected the fundamental rights of the people as a whole.

“We are now at a crucial stage as to how these amendments are harmful for the public at large; therefore, you have to link all those sections of the NAB amendments,” the CJP told the learned counsel and adjourned further hearing until next Monday.