You are not fit to hear this case, NAB tells Supreme Court
Wednesday, July 07, 2010
Accuses judges of being biased, meddling in probe; claims CJ’s restoration not legal, appointment of two ad hoc judges in derogation of Al-Jihad Trust case
By Rauf Klasra
ISLAMABAD: The Babar Awan-controlled National Accountability Bureau (NAB) has launched a frontal attack on the Supreme Court of Pakistan by accusing it of interfering with investigations, paralysing NAB, being biased, suffering a faulty composition and simply not being fit to hear the case.
The rather harsh remarks came in NAB’s blistering response to the queries posed a few days back by the apex court during the hearing of the ongoing case of the multi-billion rupees Bank of Punjab scam.
In its reply addressed to Chief Justice Iftikhar Mohammad Chaudhry, NAB has also questioned the CJ’s restoration in March last year through an executive order of Prime Minister Yousuf Raza Gilani by stating, “Neither order is countenanced by the constitution nor the same has any other legitimate basis”.
The NAB has also challenged the legality of the judgment of July 31 on the same grounds and said that the appointment of two ad hoc judges—including Justice Ramday is in derogation of Al-Jihad Trust case (PLD 1966 SC 324).
According to NAB’s written response, the present bench led by CJ Iftikhar Muhammad Chaudhry had developed biases against NAB and others concerned so it should not hear the BoP case.
NAB has also protested strongly against the humiliation being faced by its top officers in the SC and accused the SC of paralysing the institution.
In its formal response, NABhas gone to extent of alluding that instead of focusing on the real issue involving the Bank of Punjab scam, “scores” were being settled at the cost of national institutions. It said that NAB’s institutional pride has suffered immensely as the senior officers of the Bureau are being ridiculed in the SC and this attitude is neither legal nor good for a healthy environment within the organisation.
In a strongly worded six-page long response submitted in the SC with regard to Bank of Punjab (BoP) case and available with The News, the NAB has also told the SC not to let the Punjab government become party to the Bank of Punjab case as its former chairman Hamesh Khan, presently being investigated by NAB, had levelled some serious accusations against Chief Minister Punjab Shahbaz Sharif.
In its para wise comments, the NAB prosecutor General Irfan Qadir (who also happens to the son of a top retired judge of the country) has straightaway decided to target the Supreme Court judges and has levelled serious allegations against them for being partisan and full of biases so they did not deserve to sit in the bench hearing the case of BoP.
NAB pointed out that the application had been filed in a matter requiring further investigations of the BoP case. As such the present application filed in the proceedings undertaken by this court neither under the Constitution nor under the NAB ordinance. NAB said in fact this court had no jurisdiction to interfere with the investigations conducted by NAB under the NAO 1999.
NAB’s response stated that the present application pertained to writ of quo warranto and such subject matters could not be taken up in the present proceedings having no nexus whatsoever with the issue at hand.
NAB said the entertainment of the present application by this august court is a violation of article 10-A of the Constitution. It said that the right of appeal would be lost forever. An application seeking to challenge the appointment of a holder of public office is a not maintainable in collateral proceedings in view of the law laid down in PLD-94 SC 783.
The NAB Prosecutor General Irfan Qaider has raised the following points in his reply to the SC.
1-That throughout the proceedings of this case, this court has been controlling the investigations. This interference in itself is sufficient to establish the fact that the judicial process is not being pursued in an unbiased and impartial manner. As such it is not conducive for this bench to hear the present case since the predisposition is apparent on the face of these proceedings.
2-Government of Punjab including the BoP have no locus to object to the appointment of prosecutor general accountability or acting chairman NAB. The application under reply is mollified having regarding to its absolutely baseless and frivolous contents.
3-This application has been moved in order to subjugate Pakistan’s apex anti-corruption agency to the whims and wishes of the government of Punjab as well as the BoP. By moving such applications repeatedly the BoP is trying to control the investigations.
4-The entire proceedings are in violation of section 31-D of the NAB and as such the same are void ab nitio. Advocate general Punjab has no lucus standi to file the instant application. Even otherwise the content of this application have no nexus to the Bank of Punjab scam.
5- That the BoP Punjab is distinct legal entity and advocate general of the province of Punjab cannot represent the Bank of Punjab in his official capacity.
6- BoP has no locus standi to move applications seeking further investigation in the matter especially when its own officials have to be investigated. Likewise, the predisposition for the government of Punjab in the investigation process suffers from the conflict of interest as very serious allegations have been levelled by former president of BoP Hamshed Khan against Chief Minister Punjab Shahbaz Sharif.
7-The present application has been filed as a sequel to certain observations by Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhry and another ad hoc judge Justice Khailur Rehman Ramday. These observations constitute an outright transgression in the domain of the executive as well as interference in the investigation process of the NAB. Such observations were made on 26.5.2010 during the course of hearing. The CJ made insulting remarks about the prosecutor general accountability i.e. as to why the prosecutor general has not been arrested. Justice Ramday commented that those whom we punish are given higher position in the government. It was in this background that the AGP has filed the present civil miscellaneous application. It is manifest that the judges of the court had already expressed their views keeping in view the peculiar background of this case therefore the present CMA is not maintainable.
8-The advocate general Punjab is not allowed private practice as such he should not appear before the court in Bank of Punjab case. The instant application having been incompetently filed merits dismissal even on this score. It may also submitted that investigations in this case has to be conducted in accordance with the provision of NAB and not according to the dictates and wishes of advocate general of Punjab who has repeatedly interfered in the working of the NAB to achieve his political objectives and to hamper the process of investigations.
9-Regarding the contents of the instant CMA there exists a dispute with regard to the appointment of prosecutor general accountability and acting chairman of NAB between the federation of Pakistan and the province of Punjab. The present CMA therefore is hit by Article 184 of the constitution.
10-The bench of this court hearing the instant civil misc. application is otherwise not properly constituted especially when the restoration of chief justice by means of an executive order is neither countenance by the Constitution of Pakistan 1973 nor the same has any other legitimate basis. Likewise the appointment of two ad hoc judges on this bench is in derogation of al-Jihad trust case (PLD 1996 SC 324). The judgment of July 31 is also not based on any valid legal foundation.
11-The filing of the instant CMA by Punjab is direct interference in the present proceedings whereby a baseless challenge has been thrown to the appointment of incumbent prosecutor general accountability for the purpose of deviating from the real issues involved in the case in hand and instead of focusing on the facts in issues as scores are being settled at the cost of national institutions. It would not be out of context to mention here that in one of the earlier cases another bench of this court headed by CJ Iftikhar Chaudhry ordered removal of former chairman NAB Nawaid Ahsan, former prosecutor general accountability and issued contempt notices to the then chairman NAB. These high-ranking officials of the NAB had to leave their jobs as a result of immense pressure from this court. Resultantly, NAB as an institution has been totally paralysed and its fight against the menace of corruption is being undermined. Ever since passing such orders officers of the NAB are not only disgruntled, dismayed and resentful but also losing the initiative and enthusiasm in the performance of their functions. Such ridiculing of senior officers of the NAB is neither legal nor the same is conducive to a healthy environment within the organisation. In fact NAB’s institutional pride has suffered immensely.
You are not fit to hear this case, NAB tells Supreme Court