Constitution Violated At Will

Like the former Chief Justice of Pakistan, Mr Justice Saqib Nisar, chairman NAB Mr Justice (rets) Javed Iqbal also relishes being in the news for all the wrong reasons. As Chief Justice of Pakistan, Mr Justice Nisar was supposed to protect the Constitution, but regrettably he proved to be its chief violator by encroaching upon the domain of the executive without any remorse. He not only violated the Constitution, but also breached the code of conduct for the judges issued by the Supreme Judicial council. He was a fit case for reference to the Supreme Judicial Council, but the Nawaz Sharif government, which was in dire straits because of Panama case, could not dare to take that step. Imran Khan, who was under obligation of the CJP for the relief that he gave him in his disqualification case, also did not have the heft to prevent him from going berserk the way he did.

The Chairman NAB, like him, also goes around explaining actions of his organisation regarding arrest and investigations and offering justifications which actually he is not supposed to prefer. He makes statements which have political connotations, and in certain cases also amount to denigrating some political leaders. For example, he has repeatedly reiterated that the era of kingship is gone and those who have looted the national wealth will not be spared. The remark is a clear reference to the style of governance of the Sharifs. In an interview with Javed Chaudhry, he claimed that Mian Nawaz Sharif had asked for an NRO, a claim also repeatedly made by the Prime Minister and his town criers.

Nobody in his right mind can say no to accountability, but the institutions responsible for it, or their heads, should not be committing the indiscretion of making remarks against the political opponents of the government which in some way reinforce the narrative of the rulers against them. They should also not be divulging the details of investigations to the media for media trial of the political leaders and workers against whom cases of corruption or assets beyond means are being probed.

It is really unfortunate that our institutions dealing with corruption and accountability have no credibility, and the public perception is not so enviable about them. The perception that exists among the masses about those organisations, and the claims of witch-hunt by NAB coming from those who are being investigated by it, are not without cogent reasons. The accountability that is being conducted by NAB is mostly restricted to the leaders of the PML-N and PPP, while the stalwarts of the ruling party like Jahangir Tareen, against whom there is a proven case of assets beyond means, and the sister of the Prime Minister, Aleema Khan, who owned assets abroad, have not been asked any question about how they accumulated that wealth. The helicopter case against the Prime Minister has been closed without proper investigation.

The fact is that majority of our politicians, both in the ruling party and the opposition parties, own assets beyond means built through unfair means and political favours showered on them by the rulers for supporting their actions. If the NAB really wanted across-the-board accountability it should have actually started with the Prime Minister and the legislators of the PTI to establish its credentials as an impartial body trying honestly to rid the society of the all permeating corruption and misuse of power by the ruling elite. It should have started with probe into the wealth of those who had been named in the Panama leaks.

It is an irrefutable reality that NAB has been used by the regimes to victimise their opponents and Gen (retd) Pervez Musharraf, who established it, was the first to avail its services in orchestrating a split in the PPP and winning the loyalties of the renegades for PML-Q, the King’s party. The NAB operatives have also immensely contributed to the soiled reputation of the Bureau. Riaz Malik, the chief of Bahria Town, showed to the entire country on TV the video of a NAB official accepting bribe from him. The plea bargain clause in the NAB ordinance actually serves the accused and the investigators equally well. The accused returns some money to the government and pays some as gratification to the investigating officer to clinch a deal for his acquittal. In the cases where huge sums of money are involved it is really hard to maintain the integrity of the NAB officials. If the NAB Chairman is trying to make the people believe that the people involved in the investigations of the politicians were angels from the heavens, he is terribly wrong.

The NAB Chairman, addressing a press conference on 19 May, while making sure to answer the questions being asked about the impartiality of his institution, like a political leader, also stressed the point that the Bureau had never been under any influence, was not taking any dictation from the government and that it was operating strictly according to the Constitution. That was indeed quite amusing for those who understand the law and the Constitution.

NAB is a constitutional body supposed to operate independently in regards to deciding against whom a reference needs to be filed in the court or not on the basis of evidence collected to the effect. But as we see, the NAB has instituted references against Mian Nawaz Sharif on the direction of the Supreme Court, which did not have the authority to do so. Then again, the NAB filed three references against him relating to assets beyond means, whereas according to Article 13(a) no one is to be prosecuted or punished for the same offense more than once. The references against Nawaz Sharif are all related to assets beyond means, so according to the Constitution only one reference could be filed against him. It is a case of double jeopardy which is against the internationally recognised principles of jurisprudence. Not only our Constitution, but also constitutions of most countries, prohibit double jeopardy which is a serious infringement on the fundamental rights of an individual.

The NAB acted unconstitutionally by taking dictation from the Supreme Court to file more than one reference against Nawaz Sharif. Renowned Legal and constitutional experts also believe that since the court had acquitted Nawaz Sharif in the Flagship Investment case relating to assets beyond means finding no incriminating evidence against him, the other two references automatically become ineffective. The sentence given to him in the Al-Azizia case therefore was unconstitutional. It is hard to believe that the Chairman NAB, who himself has been a judge of the superior judiciary, did not know all that. How come he bandies around the view that NAB was working according to the Constitution?

Pakistan is standing where it is now because of the fact that nobody has followed the Constitution in letter and spirit. It has been decimated by the military dictators with pliable judges legitimising their actions and allowing them to make amendments in the Constitution. The politicians during their rules have also not lagged behind in vitiating the spirit of the Constitution. Their criminal aversion to setting up the local bodies according to the Constitution is a vivid example of the breach of the Constitution. As is evident, the Constitution has been violated at will by all those who could do it. How can we as a nation aspire to move forward in such a situation?

(Published in Monthly Tribute International on 01-06-2019)