NAB law changes don’t violate fundamental rights: SC judge

ISLAMABAD: Supreme Court Judge Mansoor Ali Shah Friday observed that the people’s fundamental rights had not been violated through the NAB amendments but apparently an attempt was being made to find flaws in the amendments under challenge.

He gave this observation during the hearing of a petition of the PTI Chairman Imran Khan, challenging the amendments made to the National Accountability Ordinance (NAO) 1999. A three-member bench — headed by the Chief Justice of Pakistan Umer Ata Bandial — is hearing the petition. The bench comprises Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah as members.

Imran’s counsel Khwaja Haris said a colorable exercise was made while amending the NAB law. Justice Mansoor Ali Shah, however, observed that no fundamental rights had been affected through the legislation adding that parliament was the supreme law-making body and if it enacted a law, then what the court could do in this regard.

“Do you believe we can strike down this legislation and on what grounds?” Justice Mansoor Ali Shah asked the counsel.

Haris replied the court could strike it down adding that after all the court had to look into the Article 9 of the Constitution, which specifically talked about the citizens’ fundamental rights. The judge, however, observed that these were all speculations that the amendments had violated the fundamental rights of citizens.

“Suppose, if we accept for a minute that parliamentarians had enacted this law to save themselves, then the solution is that next time the people should not elect them and the next parliament may repeal this law,” Justice Shah told Khwaja Haris.

“It seems an attempt is being made to find flaws in the NAB amendments under challenge. Let the parliament and judiciary function in their own way,” Justice Shah remarked.

The chief justice, however, observed that the court would intervene whenever the citizens’ fundamental rights were infringed upon. “We can even take notice of a letter,” the CJP remarked. Justice Mansoor, however, asked on whose letter the notice could be taken.

Addressing Khwaja Haris, Justice Mansoor observed, “The biggest violation was that you left parliament, leaving your constituency people alone, despite the fact that you were the trustee of your people who sent you to parliament. “Please tell us the reason why you left the parliament,” he asked the counsel.

“It was a political decision and it was his choice either to sit or leave the parliament and the court cannot say anything about this,” Haris replied.

Justice Shah, however, told the counsel that if they believe that there are flaws in the amendments, then the election is near, so they can come again and repeal the legislation.

Justice Bandial, however, observed that it was the responsibility of the state to ensure a fair society where the people could be ensured equal opportunities for life and protection of their rights. “There should not be an environment where the accused roam scot-free,” the CJP said, adding that equal opportunities should be provided to the people. He said relief was being given by the anti-graft body adding that those with malicious intent were being given the power. “People are leaving the country on account of lack of fair socio-economic opportunities, while the economic sector has been allocated to powerful political people,” the CJP remarked.

He observed that Justice Mansoor Ali Shah had directly raised the question of fundamental rights and they believed that these were being affected. “For what purpose people elect their representatives, sending them to parliament is clearly mentioned in the Constitution,” the chief justice observed.

He further observed that although some of the fundamental rights had not been affected directly by the amendments [made to the NAB law], there was an element of indirect rights being affected by amendments under challenge. “We have to examine as to which of the fundamental rights have been violated through this piece of legislation,” he said.

The chief justice further said that the Auditor General of Pakistan (AGP) was an important constitutional institution that could look into the accounts of the provinces. He asked Khwaja Haris about the legal status of evidence being collected from foreign countries through Mutual Legal Assistance (MLA). The PTI counsel submitted that mutual legal assistance was being taken through the Foreign Office for which there was a complete process for its verification.

The chief justice, however, observed that under the NAB amendments, the status of evidence received under the Mutual Legal Assistance had been abolished. The CJP said now the anti-graft body will have to take this service itself abroad, which will be quite expensive.

Makhdoom Ali Khan, counsel for the federal government, told the court that although the Constitution talks about the rights of an accused and a fair trial, it does not talk about the rights of a complainant. He submitted that billions of rupees were spent by the NAB on investigation and filing references but with little result, as the conviction rate in cases filed by the NAB was less than 50 percent.

Meanwhile, in pursuance of the court’s order, the NAB submitted a report outlining the details of people benefiting from the NAB amendments. The court was informed that 12 references were transferred from the NAB courts till August 30 this year. According to the report, former president Asif Zardari and former prime minister Shahid Khaqan Abbasi were among the beneficiaries.

The court was further informed that the NAB cases against the Omni Group head Khawaja Anwar Majeed, Khursheed Anwar Jamali and Sindh Building Control Authority (SBCA) ex-DG Manzoor Qadir Kaka had been transferred. The case of Pakistan Stock Exchange’s former chairman Hussain Lawai, the main suspect in the fake accounts case, was also left out of the NAB scope.

The report further states that the Park Lane reference against Asif Zardari was returned by the accountability court after amendments, while the NAB case against Abdul Ghani Majeed of the Omni Group was also returned by the accountability court. The court was informed that this year, a total of 22 cases were returned from the accountability courts, while 25 cases were transferred to other forums in the light of the amendments.

In a related development, Additional Attorney General Chaudhry Aamir Rehman informed the court that Attorney General Mansoor Usman Awan will also argue before the court at which the court adjourned the hearing until September 5. It is expected that after the AG arguments, the court may reserve the judgment on the instant petition on September 5.