—— CJP says FBR evidence obtained through int’l cooperation not acceptable after NAB amendments
—— Contends fundamental rights affected by NAB amendment
—— Asserts pardons being given by NAB like presidential pardons
—— Justice Shah says SC can “touch legislation only when it violates Article 8 of the Constitution”
—— Justice Ahsan observes NAB has been captured by amendments
—— Hearing adjourned till 5th
Staff Report
Islamabad: Supreme Court’s Justice Mansoor Ali Shah on Friday has remarked that the new Parliament should come and abolish the NAB amendments otherwise “the whole system will collapse”.
He expressed these remarks during the hearing on a petition filed by PTI Chairman Imran Khan against the NAB amendments.
A three-judge apex court special bench headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Mansoor Ali Shah heard the case on Friday.
PTI chairman’s lawyer Khawaja Haris gave his arguments.
During the hearing, the chief justice asked Mr Harif if he could ask federal government lawyer Makhdoom Ali Khan something. He said that after the NAB amendments, the evidence obtained through international legal cooperation is not acceptable now.
The information received by the FBR cannot be used as evidence, the chief justice observed adding that he noticed one more thing, the status of evidence obtained under the MLA has been abolished. He said now the NAB would have to hire the services itself which would be costly. (The MLA is the formal way in which countries request and provide help to each other, to obtain evidence located in one country for use in criminal investigations and prosecutions in another country).
The CJP asked the lawyer that he told the court yesterday that a report about the details of properties apart from the MLA came from abroad.
At this point, the NAB submitted a report detailing references that have been returned after the amendments.
Justice Ahsan inquired if the NAB submitted an edited report. The NAB prosecutor replied in affirmative.
Chief Justice Bandial remarked that the record obtained by the FBR from abroad could not be presented as acceptable evidence. He inquired if there were some rights of the complainant in the Constitution of Pakistan.
Lawyer Makhdoom Ali Khan told the court that the Constitution talks about the rights and the fair trial of the accused only, it does not specify the rights of the complainant.
He said that the FBR gets property details from abroad.
But the FBR cannot present this report as evidence, the CJP reiterated.
The federal government’s lawyer said that it’s upon the NAB to prove whatever is recovered from the accused. It is also the NAB’s responsibility to prove the evidence collected from abroad. He said that courts decide the case after looking at the evidence, no matter if the evidence is collected from inside the country.
Makhdoom Khan said that the Swiss courts rejected the evidence collected from their country against former president Asif Ali Zardari.
Justice Ahsan remarked that the Swiss cases were finished due to the expiry of the time limit, not due to lack of evidence.
Makhdoom Khan said no one knows under which law the attorney general had sought assistance from the Swiss authorities.
The federal government lawyer said that the court was told yesterday that the NAB investigation cost billions of rupees. Despite doing all this, the conviction rate in the NAB cases is less than 50%, he added.
Chief Justice Bandial observed that in our criminal justice system, the conviction rate is also less than 70%. He said that many of the cases also get settled between the parties later.
The top judge remarked that they are looking at the data which is a matter of concern. He said that 30 to 40 percent of people do not get justice in murder cases. He remarked that the main responsibility of the state is to give justice to the people, adding that many victims refuse to identify the accused in the courts.
Makhdoom Khan said it happened because victims were not sure whether they would be safe after identifying the accused or not.
When PTI Chairman’s lawyer Khawaja Haris started his arguments, the Chief Justice remarked that there is an impression that the accused under NAB’s custody is under pressure to negotiate a plea bargain.
Kh Haris said that it is true that there are some instances in which plea bargains were made under pressure.
The Chief Justice remarked that there is an example of a case in Sindh. In this case, the amount was fixed by plea bargaining, and later all the assets were re-estimated, tell us how the NAB clause of the plea bargain can be improved, the top judge inquired.
Justice Ahsan remarked that after the amendments, the amount received in instalments under the plea bargain would also have to be returned.
The Chief Justice inquired how much is the scope of legal assistance from abroad in the law of Pakistan.
Lawyer Khawaja Haris argued that legal assistance from abroad has not been given much importance in Pakistani law.
Chief Justice Bandial remarked: “Return of NAB references before May 2023 is a serious matter. We have a list based on the details regarding how many NAB references have been returned, but the point is that we have to finish the case today and today is Friday and we have time till 12:30 pm today.”
The Chief Justice directed Khawaja Haris to complete the arguments by 12:30 pm today.
The Additional Attorney General said that the Attorney General has said that he would take some time on Monday.
Justice Ahsan remarked that there is no time till Monday, give written submissions, we will see.
During the hearing, Justice Mansoor Ali Shah gave important remarks. He remarked “Parliamentary democratic system is the main component of the Constitution of Pakistan. I feel that fault is being found in the NAB amendments.”
He continued to say: “Let the Parliament and the Judiciary run their own way in the country, as the general elections are around the corner. The only solution in my mind is for the new Parliament to come and abolish the amendments, otherwise, the whole system will end. The only solution is to not vote for such people again.”
Chief Justice Bandial remarked that the NAB law was misused against businessmen. He said he got the names of businessmen who were harmed, it should not be the case that an accountant should be made to find a mistake of Rs10. The NAB law was misused against persons doing business according to law, it is not right to change the nature of a crime, and corruption is harmful to society and people, the CJP added.
Justice Shah remarked that it seems that an utmost effort is being made to find mistakes in NAB amendments but no error is being found so far. “Leave some things to nature,” the judge suggested.
Justice Shah said that a parliamentarian is the trustee of the people, the biggest violation is how a person (referring to Imran Khan) left the parliament of his own free will.
Khawaja Haris said that it is a political decision whether to sit in parliament or to leave.
Justice Shah inquired that the parliament forum was there, how did he leave the representation of his constituency? What is the good faith of the applicant?
‘Pardons being given by NAB like presidential pardons’
The Chief Justice of Pakistan remarked that pardons are being given by the NAB like presidential pardons, authority was being entrusted in the hands of malicious people. He said many people have tainted money obtained from drugs and other sources, the system has been designed to protect the tainted money. Many people are saved, it is the responsibility of the state to establish a just and fair society, it is the responsibility of the state to ensure that criminals do not walk free, the top judge remarked.
CJP Bandial further remarked that people are leaving the country due to deprivation of economic opportunities, the sector of the economy has been reserved for those who are politically powerful. People choose their representatives for a purpose and that purpose is enshrined in the constitution, he added. He said that all over the world, the use of income beyond means’ principle has been minimized.
The CJP remarked that all over the world, the principle of direct evidence is followed. NAB law was misused in the past, government officials were protected from NAB through legislation.
‘Not fundamental, but indirect, rights being violated by amendments’
He observed that the Auditor General is the main constitutional body, a strong Auditor General’s Office can also look into the accounts of the provinces. “Fundamental rights are not directly violated by the NAB amendments, but there is definitely an aspect of indirect rights being affected by the NAB amendments, if there is bad behavior or a criminal society, people will leave,” the chief justice said.
‘NAB has been captured by amendments’
Justice Ahsan inquired if it was not the case that the NAB has been captured by the amendments. “Will the NAB accused himself make the NAB law? Will the NAB accused himself tell how to regulate the action against him after making NAB law? Can a law made for personal gain be nullified,” the judge asked.
Justice Shah remarked that even if the parliament makes a law for its own benefit, what can the court do?
Hearing adjourned till Sept 5
The Supreme Court adjourned the hearing of the NAB amendment case till September 5 and ordered the petitioner’s lawyer Khawaja Haris to submit written arguments while also calling for arguments from the Attorney General on September 5.
