In which country, army is immune from accountability, asks Supreme Court

ISLAMABAD: The Supreme Court (SC) on Wednesday raised serious questions about the immunity from accountability granted to the armed forces personnel during their service period, and asked if there were other countries also where the army was immune from the accountability process.

A three-member SC bench, headed by Chief Justice Umer Ata Bandial, and comprising Justice Ijazul Ahsen and Justice Syed Mansoor Ali Shah, heard a petition, filed by former prime minister and Chairman Pakistan Tehreek-e-Insaf (PTI) Imran Khan, challenging the amendments made by the coalition government to the National Accountability Ordinance (NAO) 1999.

Khawaja Haris, counsel for Pakistan Tehreek-e-Insaf (PTI), while answering the court questions regarding exclusion of the armed forces personnel from the National Accountability Bureau (NAB) law ambit, submitted that the armed forces were not totally out of the NAB ambit, adding that the anti-graft body could take action against them after their retirement. He submitted that whatever the armed forces do during service, they could be made accountable only after their retirement.

Justice Mansoor Ali Shah asked whether the army officers could not be made accountable even if they were serving the federal or provincial organisations.

Justice Ijazul Ahsen, a member of the bench, observed that the army officers could be proceeded against under the Army Act, but not the NAB law. He observed that the army officers had been provided protection from the NAB law during their service under national security.

Justice Mansoor Ali observed that prime minister, president and chief minister have been provided immunity under Article 248 of the Constitution and are not answerable to any court for the exercise of powers and performance of functions of their respective offices. “But a question arises here, as to how the immunity available to prime minister and chief minister can be extended to the armed forces,” he asked. “And whether this immunity from accountability is available to the armed forces in other countries also, like in Pakistan,” Justice Shah questioned.

The judge questioned that civil servants also serve the country in different capacities, then why they were not given immunity under the National Accountability Ordinance (NAO) 1999. “If an army officer was involved in corruption, then whether we will wait for 40 years for his retirement for making him accountable,” Justice Mansoor questioned.

Again, Justice Ijazul Ahsen observed that after getting commission, the army officers remained in service for 18 years, adding that the army had its own internal control and management having the procedure of accountability. The judge further observed that punishment in the army under the Army Act was quite harsh than other general punishments.

However, Justice Mansoor Ali Shah remarked that the Army Act could not limit the ambit of the NAB law.

Earlier, the SC questioned as to how parliament could remain functional in the absence of the largest political party of the country. The chief justice remarked that it was a political decision of the PTI either to attend the National Assembly or not, but institutions have to be made functional. “How the Parliament could remain functional in the absence of the largest political party of the country, and this is an important question,” he added.

Khawaja Haris, while concluding his arguments, submitted that all lawmakers of the PTI had resigned from the membership of National Assembly, adding that by-elections had been held in some of the NA constituencies, which had been won by the PTI.

The counsel contended that the National Assembly speaker, through a political strategy, was not accepting the resignations of PTI legislators.

Justice Mansoor Ali Shah observed that although the PTI lawmakers were not going to the National Assembly, they were receiving their salaries. He observed that the Islamabad High Court (IHC) had asked the PTI legislators to appear before the NA speaker.

Justice Ijazul Ahsen, another member of the bench, however observed that there were PTI MNAs who did not appear before the NA speaker but their resignations had been accepted.

“Why the speaker did not accept en-bloc resignations of the PTI lawmakers?” Justice Ahsen asked, adding that if any of the members had any issue, he would raise objection on it.

Justice Mansoor observed that people elect their representatives after trusting them and send them to parliament. “Assembly could be left only when a member was not able physically to attend the proceedings,” the judge remarked adding that a member should raise his voice at the floor of the house.

Khawaja Haris, however, submitted that the incumbent government came to power as a result of corruption and breaching the trust of the public, adding that the present assembly was incomplete as it had breached the trust of the public. “It is the partial stance of the PTI that the present assembly is incomplete,” Justice Mansoor Ali observed, asking the learned counsel that if they did not like the present assembly, they should leave the seats also.

“But daily I am demanding fresh elections,” Kh Haris replied.

Justice Ijazul Ahsen observed that it’s a political debate and it should be held on political front. Justice Mansoor, however, observed that the question of resignations was not political but constitutional and asked the PTI counsel as to why they did not approach the courts when their resignations were not accepted.

Khawaja Haris submitted that political questions could not be answered in legal term. “My demand is for fresh elections, and what I could say more than it,” the PTI counsel submitted.

Justice Mansoor Ali Shah asked the counsel if the court directed the NA speaker to accept the PTI resignations within four days, whether the PTI was ready for it.

Kh Haris replied in affirmative, saying that the PTI was demanding fresh elections as the present government was formed as a result of corruption and breaching of the trust of the public.

Later, the court adjourned the hearing until the second week of January next year, when Makhdoom Ali Khan, counsel for the federal government, would commence his arguments.