ISLAMABAD: The Supreme Court questioned why the armed forces have been excluded from the National Accountability Ordinance (NAO), while they have huge businesses and the biggest balance sheet.

A three-judge bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah on Wednesday heard the constitutional petition of Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan against the amendments in the NAO, 1999.

Justice Mansoor questioned; “Why (have) the armed forces been excluded from the NAB law while they are doing huge businesses and have the biggest balance sheet.” He questioned is it not discrimination? Why are they above the accountability process? He questioned why did the petitioner (Imran Khan) not included this point in his petition, which is against the amendments in the NAO, 1999.

Khawaja Haris, representing the PTI chief Imran Khan, replied they are protected, “… except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the federal government or a provincial government or notwithstanding anything contained in the Pakistan Army Act, 1952, or any other law for the time being in force, a person who is a civilian employee of the Armed Forces of Pakistan.”

The chief justice said that the Court has to balance one thing about fundamental rights. Explaining there are fundamental rights of an individual, but there are also fundamental rights of the society, ‘so we have to balance it’.

At the onset of the proceeding, Haris argued that through amendments many public offices such as Prime Minister, Chairman Senate, Speaker of the National Assembly, Deputy Speaker National Assembly, Federal Minister, Minister of State, Attorney General, the Chief Minister, Speaker Provincial Assembly, Deputy Speaker Provincial Assembly, Provincial Minister, Advisor to the Chief Minister, Special Assistant to the Chief Minister, Provincial Parliamentary Secretary, Member of the Provincial Assembly, Advocate General including Additional Advocate General and Assistant Advocate General, Political Secretary, Consultant to the Chief Minister, Chairman or Vice Chairman of a Zila council, a municipal committee, a municipal corporation or a metropolitan corporation, District Nazim or Naib Nazim, Tehsil Nazim or Naib Nazim or Union Nazim or Naib Nazim, have been excluded from the ambit of the National Accountability Bureau (NAB).

Justice Mansoor observed that they are excluded only to the extent of decision they take, but not if they make monetary gain then action could be taken against them. He said it was done, so that they could freely take decisions in the best interest of the country. He said for example a holder of public office takes a decision to increase or decrease the tax then some will have its benefit the other might not. The question arises whether they have taken undue benefit in performance of their duties.

Haris argued they may not take benefit directly but could provide benefit to third party, adding in the amendment no action can be taken against the third party. The chief justice noted that if the holder of public office takes a decision in good faith then it is no issue, but the action should be taken if it violates the law.

Justice Mansoor questioned if an offence or a particular transaction is not accountable under the NAB law then it is also not accountable in any other law? Justice Ijaz remarked that misuse of authority is not an offence in any other law.

Haris contended that the ingredient of the misuse of authority has been changed through amendments so now it no more offence under the NAO. He said that the burden of proof has been shifted to the NAB, adding first it needs to establish that the assets are earned with ostensible means, and then the NAB has to show these assets were made with ill-gotten wealth. Justice Mansoor asked why we are going in minor detail. The case was adjourned until Monday (October 24).

Copyright Business Recorder, 2022