ISLAMABAD: Chief Justice Umar Ata Bandial on Wednesday observed that the rule of law and access to justice are also fundamental rights, saying that in two or three recent judgments, the Supreme Court maintained petitions under Article 184(3) on violations of other provisions of the constitution.
Chief Justice Umar Ata Bandial made the observation while heading a three-judge bench of Supreme Court, comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, hearing a petition filed by former prime minister Imran Khan against amendments National Accountability Ordinance, 1999.
On Wednesday, Makhdoom Ali Khan, the counsel for the federation continued argument and adopted the stance before the Supreme Court that no fact has been pleaded in the petition by the former prime minister Imran Khan, while appeals against the amendments to NAB law are also pending before the Islamabad High Court (IHC).
During the hearing, Justice Mansoor questioned is there NAB law or general or generic law in other countries particularly in India specifically for the elimination of the corruption.? Is there any report that harbouring impression that this is an exceptional law (NAB)? Is there any report by anyone or an agency on the trajectory and performance of the NAB that this body has been good for the country, he further asked.
Makhdoom Ali Khan, representing the federation said how the petitioner has locus standi to invoke the Article 184(3)?, while was the author of the law (amendments). The counsel said when the petitioner has not participated in the vote against the bill then how he could challenge it before the court. Why he had not opposed the bill in the parliament. The petitioner has not pointed out how these acts are ex-facie discriminatory?
He added that the CMA filed by the petitioner contains 16 challenges, which includes that the law is made with retrospective affect, change of presumptions, reference being sent to the NAB chairman, standard of proof, displacement of presumption, shifting the burden on prosecution to help the accused to walk scot-free, and the change of evidence and reduction of punishment.
Makhdoom Ali Khan said there are judgments of this court that ex-facie violation with respect of Article 17 of the constitution, and not of Article 25. The violation must be direct and causal. In Benazir Bhutto, Jamat-e-Islami and Tahirul Qadri case the apex court has held that the petitioner must act on bona fide and burden is on the petitioner. He argued that judicial restraint is must for the continuation of law, and also applies for the trichotomy of power.
The chief justice noted that there has been expansion of the Supreme Court jurisdiction since 2010. To which Makhdoom Ali Khan said the SC jurisprudence is always clear since 1990 that a single judge is bound to follow the judgment of the Division Bench, and the judgment of Division Bench is bound by the judgment of similar number of judges.
Justice Bandial also observed that in 1989 amnesty scheme was announced, which was challenged before the High Court on the ground that the cases of the tax-evaders and corruption were done away with through President pardon. The High Court set aside the scheme. However, the decision of high court was turned down by the Supreme Court in 1992.
Later, the SC bench adjourned the hearing until Thursday (today).
