ISLAMABAD: The Supreme Court rejected on Tuesday a set of petitions seeking review of its Jan 7 order in the Rs35 billion fake bank accounts case, but explained that in matters of institutional capture, the court was not helpless and could summon any executive authority to come in its aid for assistance.
The observation came during the hearing by a three-judge SC bench comprising Chief Justice Asif Saeed Khosa, Justice Faisal Arab and Justice Ijaz-ul-Ahsan of a number of petitions seeking review of the court’s Jan 7 order to refer the report of a joint investigation team (JIT) and evidence in the fake accounts case to the National Accountability Bureau (NAB).
The court decided the fate of all the petitions in a single but prolonged hearing lasting over four hours in which the petitioners agitated against the transfer of cases from Karachi to Islamabad.
The review petitions and miscellaneous applications were moved by Pakistan Peoples Party co-chairman Asif Ali Zardari, his sister Faryal Talpur, PPP chairman Bilawal Bhutto-Zardari, the Sindh government, Chief Minister Murad Ali Shah, Anver Majeed and Abdul Ghani Majeed of the Omni Group of Companies and others.
Asif Zardari, other petitioners objected to referring of JIT report, evidence to NAB
Advocate Sardar Latif Khosa, while opening the arguments on behalf of Asif Zardari, asked why the apex court had appointed the JIT to probe allegations of fake bank accounts when the case was already being investigated by other agencies. “This is a direct interference,” he emphasised.
At this, the chief justice observed that the court could not remain helpless when there was an institutional capture and explained that the court had assumed such jurisdiction in the Panama Papers leaks case against former prime minister Nawaz Sharif as there was also an institutional capture and no executive authority had been coming forward to conduct a fair probe. “Similar background is also available in the present case as a result of which the court had to intervene in the fake accounts case,” he observed.
“When billions of rupees were found here and there then someone has to look into it and the Supreme Court simply ordered the relevant people to probe the matter which is NAB. If this money does not belong to your client then why are you expressing apprehensions,” the chief justice told the counsel.
“Where is the interference?” Justice Ijaz-ul-Ahsan asked. He observed that the court had only directed the JIT to act in accordance with the law, especially when the Federal Investigation Agency (FIA) had conceded before the court that it lacked capacity or expertise to probe white-collar crimes.
If the FIA was really so incompetent then it should be disbanded, the counsel said, adding that there must be some contours for the exercise of suo motu power under Article 184(3) of the Constitution.
“You want us to reinvent the wheel and re-determine the parameters of the review petition by opening up a new avenue,” Justice Ahsan said, reminding the counsel that this was not a rehearing or an appeal simply because they had second thoughts and that their scope was very limited in the review jurisdiction.
“Whatever the counsel is arguing are pre-emptive arguments rather pre-emptive strikes, especially when the matter is pending before NAB and is still not known whether references against the suspects will be filed or not,” Justice Ahsan observed.
The counsel then objected to the inclusion of the Inter-Services Intelligence (IJI) in the JIT, wondering whether it was a pressure tactic. “You are the custodian of the Constitution,” the counsel argued, adding that the ISI should not be involved in civilian matters since it was not under their charter of responsibilities. A government official should act strictly in accordance with the law, he contended.
When Justice Ahsan emphasised that the Supreme Court could direct any institution or executive agency since all of them were subject to the order passed by the top court, the counsel argued that the principle of doing complete justice by the Supreme Court was also subservient to Articles 175(2) and 187 of the Constitution.
When the counsel pointed out the court directive for NAB to conduct the probe in Islamabad instead of Karachi, the chief justice reminded him that specific remedy under Section 16(c) of the National Accountability Ordinance (NAO) was available to him for transfer of the case from one city to another.
Justice Ahsan regretted that when billions of rupees were coming out from the accounts of “kulfi wala and rehri walas” then it was justified for the court to assume jurisdiction.
The counsel argued that slackness on the part of investigation agencies could not a ground for initiation of a suo motu under Article 184 (3) of the Constitution.
This was simply a witch-hunt, Justice Khosa argued, but Justice Ahsan said it was not.
“If there are two possible views and the court takes up one of them, will it make a ground for instituting a review?” Justice Ahsan asked.
The counsel argued that the JIT should be formulated under some laws, adding that both the FIA and NAB through simultaneous investigations were calling his clients to Islamabad. He also deplored the media trial of his clients.
Justice Ahsan observed that when there were multiple layers of transactions with over Rs39 billion in a number of ancillary accounts used for hundi and purchase of properties, shares, etc, then NAB had to look into the matter to make out a case.
Objecting to the referring of cases to NAB, the counsel argued that when the FIA was already seized with the matter, then NAB could not come into picture.
Farooq H. Naek, the counsel for Faryal Talpur, argued that certain directives in the Jan 7 order were in excess of the jurisdiction exercised under Article 184(3) of the Constitution and asked could endorsement of the acts of the JIT fall within the realm of Article 184(3). He argued that the probe by the JIT would be cited as precedence by the generations to come against his clients.
Shahid Hamid, representing Anver Majeed, requested the court to let the NAB chairman decide under the NAO to refer the probe to Karachi or Islamabad, adding that his exercise of the law would satisfy due process of law. The counsel said NAB was not in the picture when the JIT was formed and when it was formed at the request of the FIA, its basic purpose was to assist the agency.
Makhdoom Ali Khan, the counsel for the Sindh chief minister, argued that his client should have been heard by the JIT before implicating or recording anything against him in the case, but his client had never received any notice or summons.
Khalid Jawed Khan, representing Bilawal Bhutto-Zardari, argued that if the case was transferred to Islamabad, he had to approach the Islamabad High Court, instead of the Sindh High Court, to seek any relief against the orders of the accountability court or NAB.
Published in Dawn, February 20th, 2019