ISLAMABAD: The Supreme Court Tuesday observed that although the politicians benefited less (than others) from the amendments made to the National Accountability Ordinance (NAO) 1999, they were prominent.
A three-member bench of the apex court — headed by Chief Justice of Pakistan (CJP) Justice Umer Ata Bandial — heard the petition of PTI Chairman Imran Khan, challenging the amendments to the NAO 1999. Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah were the bench members.
Continuing his arguments, counsel for the federal government Makhdoom Ali Khan submitted that around 221 references were returned through amendments made to the NAB law from 2019 to-date adding that among those references, 29 were against the politicians and eight against the parliamentarians.
Quoting figures from the report recently submitted by the National Accountability Bureau (NAB), he submitted that a total of 41 persons, including five politicians, had been acquitted from the references through the amendments made to the NAB law from 2019 to-date.
“If we sum up, we can say that the number of politicians who either benefited or were acquitted in the NAB references is less,” Makhdoom Ali Khan contended.
At this, the chief justice observed that although the number of politicians who benefited from the NAB amendments was less, prominence was there as well.
The chief justice observed that the other side of the argument was that due to the amendments made to the NAB law, the intensity and nature of offences had changed.
The chief justice further observed that as per the petitioner’s stance, the spouse and children of the accused had been ousted from the ambit of the NAB law, while other side argued that there should be a solid proof for investigation against the spouse and children [of the accused].
Justice Ijazul Ahsen observed that changing the definition of offences in the NAB amendments was a sufficient proof instead of proving it by the petitioner.
Justice Syed Mansoor Ali Shah observed that the court was yet to be informed as to how fundamentals rights of the citizens had been violated by the NAB amendments.
“If any change surfaced in the governance after making changes to the NAB law, then how the fundamental rights of the citizens have been affected?” Justice Mansoor Ali Shah asked.
He further asked as to how a citizen could challenge in the Supreme Court a legislation made by the Parliament.
“If Parliament abolishes death sentence, can the Supreme Court restore it on the application of the affected persons?” Justice Mansoor Ali Shah further questioned.
Makhdoom Ali Khan submitted that the burden of proof was on the petitioner to establish that discrimination was made to specific persons through the NAB amendments. In this regard, he cited various judgments of the Supreme Court in which the court had held that the burden of proof was on the petitioner if any of fundamental rights was violated or discrimination was made.
The chief justice recalled that Asfandyar Wali case was the biggest accountability case dealt by the Supreme Court.
Makhdoom Ali Khan, however, submitted that he will argue this extensively later on in the light of Asfandyar Wali case.
The counsel submitted that the petitioner must show his bona fide while raising the question of enforcement of fundamental rights and will have to give solid reasons in support of it.
“Unless you cross Article 25 of the Constitution, you must show that the statute was discriminatory against the fundamental rights”, the federal government counsel submitted.
Chief Justice Umer Ata Bandial, however, asked the counsel if the other fundamental rights were breached, then what will happen.
The CJP observed that obviously Article 17 of the Constitution could be invoked when the fundamental rights were violated.
Makhdoom Ali Khan submitted that in Tahirul Qadri case, the apex court had held that a petitioner must be acting bona fide and the burden of proof was on him and that’s why the court had dismissed the petition for not being maintainable.
“Then where does the salutary principle go?” asked the chief justice.
The counsel replied that the Supreme Court should not hear a matter under Article 184(3) of the Constitution but the high court under Article 199 of the Constitution
He further contended that if a matter was pending with the high court and Supreme Court, then the Supreme Court had to wait for the decision of the high court.
The chief justice observed that this was the progress of law adding that the Supreme Court had dealt with this in 1988.
Article 199 applies but in subsequent judgments, the court held that it does not apply,” the CJP recalled.
“Article 1999 is different from our jurisdiction,” the CJP remarked.
Later the court adjourned the hearing for today (Wednesday).
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