In addition to judicial-coup, Pakistan’s present problems due to failure of dividing NAB into ACB, CAG. By Hem Raj Jain
19 Nov 2019
The three major problems Pakistan is still facing since its existence in 1947 are (i)- Lack of Federalism which resulted also in separation of Bangladesh from Pakistan in 1971 (ii)- Not working seriously for plebiscite in United-J&K (though mandated by ‘Instrument of Accession’ of J&K to India signed by ex-Ruler of J&K and UN Resolution 1948 about united-J&K) which resulted in many unnecessary wars with India (traditional and proxy, with huge loss of lives, blood, properties and honor on both sides) (iii)- Unnecessary & unjust laws (which are not only against basic human rights as enshrined in ICCPR of UN but also made judicial-coup possible) in the name of Islam about matters which can legitimately & effectively be handled by criminal laws of secular democracies all over the world.
Recently two more problems are inflicting Pakistan which are the result of faulty legislation or lack of legislation by Pakistan as given below :-
(1)- The Supreme Court of Pakistan (SCP) carried out (what is termed by Pak national and international media) a ‘judicial-coup’ before 2018 general election [which brazenly violated the political rights of incumbent PM Nawaz Sharif, his Party PML (N), its other candidates and the people of Pakistan who were denied the legitimate political choice and thus made 2018 and subsequent elections and all elected bodies, as illegitimate] as reported also at https://www.geo.tv/latest/156544-musharrafs-former-minister-says-nawaz-sharifs-disqualification-weak-lacks-judicial-grounds and https://www.dawn.com/news/1357595 and https://www.geo.tv/latest/151531-legal-heavyweights-weigh-in-on-scs-decision-on-panama-case and https://www.washingtonpost.com/news/global-opinions/wp/2017/07/30/why-sharifs-ouster-is-dangerous-for-pakistan/ . This judicial-coup as per media was carried out by SCP by violating every principle and tenets of jurisprudence where (A)- Nawaz was denied the benefit of a legal trial (B)- SCP accepted findings of an investigative panel, on which two of the six members were from the same military establishment (which deposed him from Premiership in 1999) that wanted his exit, ( C)- Had this been about corruption, there would have been a trial, not direct intervention by the Supreme Court, which should only be the court of final appeal in criminal matters (D)- PCB handed down a lasting disqualification against Nawaz bypassing a fair trial without giving him the benefit of an appeal (E)- An entire mechanism exists under ROPA that also allows for an appeal, but SCP went straight to Article 62(1)(f) of the Constitution (F)- Nawaz was disqualified for LIFE though there is no explicit legal provision to do so.
(2)- Pakistan has unnecessarily invited troubles for itself by faulty legislation about ‘National Accountability Bureau’ where in the ‘National Accountability Bureau Ordinance, 1999’ (NAB Law) (i)- The functions of Anti-corruption Bureau (ACB), Comptroller and Auditor General (CAG) and Enforcement Directorate of Income Tax (EDIT) have been wrongly mixed in NAB functions (ii)- The distinction between political matters and legal matters have been wrongly denied through NAB functions.
(3)- These two deficiencies of NAB Law are evident from the November 19, 2019 address of NAB Chairman Javed Iqbal ( https://www.youtube.com/watch?v=dCw902cuYBY ) . From this address it is evident that any country will be fortunate if has such competent and man of professional integrity as the Chairman of an institution which is responsible for protecting & promoting clean public-life in the country. But Pakistan is wasting NAB Chairman by giving him faulty and deficient laws (including and especially mentioned in Preamble and Sections 9 of NAB Law) to work with, which is evident from the following.
(4)- NAB Laws did not distinguish between corruption by public servants which should be handled by ACB only and the crimes of other people of Pakistan like money laundering, tax evasion etc which should be handled by EDIT.
(5)- Use of public funds over and above the amount sanctioned by the legislative of Pakistan (its Parliament and State Assemblies) is the subject matter primarily pertaining to and controllable by CAG and not the NAB
(6)- If government does not work for the welfare of the people and even does not spend money sanctioned by its legislatures (for the welfare of the people as was in case of vaccines for dog-bite etc) then it is not a crime but a political problem. The people who have elected such callous and irresponsible government deserve to suffer as punishment for the careless / irresponsible investment of their political capital in electing such undesirable politicians (and which the people should have known better). This political problem can be rectified by the people during next election by electing well-deserved people’s representatives and governments.
(7)- The NAB Laws are unnecessarily against basic human rights and unnecessarily stringent about bails to the accused. Rather bail should be the inalienable right of the accused unless he / she tempers with the evidences or threatens / intimidate the witnesses or does not co-operate with the investigating team or feared by the Court that he / she will not appear before Court as and when so desired by the Court.
(8)- The case of former PM Nawaz Shariff is a fit case for study in political science where (i)- His Party PML (N) has neither agitated against said judicial-coup nor for bringing out requisite amendment in Laws & Constitution of Pakistan (which made this judicial-coup possible) nor filed writ petition in Supreme Court of Pakistan challenging the Constitutional validity of these Laws & constitutional provisions which made this judicial-coup possible (ii)- The Government and Courts of Pakistan allowed Nawaz to go out of its territorial jurisdiction and did not take any assurance from Government of UK (where Nawaz has been allowed to go) to handover Nawaz to Pak Embassy in UK in case Nawaz does not return to Pakistan after treatment as promised by him and his sureties to the Courts.
Therefore, if Pakistan is really interested in bringing peace to presently disturbed political environment of Pakistan and if wants to avoid such unfortunate situation in future then Pakistan should make requisite amendment in NAB Law (about said confusion and over-reach) and in Laws and Constitution which made said judicial-coup possible.