ISLAMABAD: Corruption ultimately disturbed the quality of life, Chief Justice of Pakistan (CJP) Umar Ata Bandial observed on Wednesday, stressing that the menace hurt peace and law and order in society and thus was against the concept of transparent and good governance.
“If the system is honest, investments can be made in the country knowing well that the investor will not be disturbed,” the CJP observed while heading a three-judge bench that had taken up a challenge to the August 2022 amendments to the NAO by former PM Imran Khan.
The CJP linked the menace of corruption with the concept of penumbra, which, in the US constitutional law, includes a group of rights derived, by implication, from other rights.
Justice Bandial regretted that eight months had passed since amendments to the NAB law were made — through which the jurisdiction of the accountability courts have been curtailed not to entertain references involving an amount below Rs500 million — but not a single corruption reference had so far been referred to the relevant forum and instead cases were being accumulated.
When Makhdoom Ali Khan, who was representing the Centre, replied that the court could direct NAB to refer these references to the relevant courts, Justice Bandial wondered why the anti-graft watchdog was not doing this by itself.
Top judge says not a single reference referred to relevant forum since NAB amendments passed
Justice Syed Mansoor Ali Shah observed that the NAB amendments case had been heard for the last many months, but he could not yet understand which of the fundamental rights had been affected due to these amendments. He wondered that before highlighting public importance in a petition, perhaps the breach of fundamental rights had to be identified first.
Justice Shah also wondered whether a victim’s family could raise the question of their rights being taken if capital punishment was taken out of the criminal procedure.
The counsel, however, contended that he could not find any jurisprudence from anywhere in the world where the question of breach of fundamental rights was invoked in case of reducing the punishment for an offence. He also emphasised that the state did not have any fundamental rights against its citizen.
The CJP was of the view that good governance related to fundamental rights since, instead of being vague, they should be clear so that everybody knew what was right and what was wrong. “Imagine what will happen if you go through a red light, but the traffic sergeant, instead of the driving licence, asked for some undue benefits,” he said. “That is what corruption does, as it hurts the life of the people,” he said, adding that the right to life was a fundamental right.
The CJP said primitive life might revolve around the three aspects of roti, kapra aur makaan (food, cloth and shelter), but as the society developed, these rights expanded.
For instance, education, especially of women, became one of the fundamental rights, though it was another matter if it was enforced or not, he said.
The counsel argued that the entire legislature would virtually become redundant if the courts directed it to change the amendment or repeal it altogether. Therefore, this was a jurisdiction which should be exercised by courts with caution, he said.
Justice Ijazul Ahsan wondered what if the Federal Shariat Court, which had wide jurisdiction over matters on Islamic jurisprudence, struck down NAB amendments on the grounds that they were against the principles of Islam. The counsel then cited the example of a bull in a China shop, stating that when a bull entered the shop, it destroyed everything because it had the power but not the authority to do so.
Published in Dawn, February 16th, 2023
