Monitoring NAB, court against Constitution: legal experts

ISLAMABAD: Top legal minds, including retired judges of the Supreme Court and senior most lawyers, are unanimous that the appointment of a Panama case bench member to monitor the NAB and accountability court (AC) is against the spirit of Article 10A of the Constitution and the independence of judiciary.

They believe when the apex court has already given its verdict in the PanamaLeaks case and referred the matter to the trial court, then the accountability court must be independent to conduct its proceedings.

Any interference from the Supreme Court or appointment of a judge who has already given his verdict in the same case is against the aspirations of Article 10A and independence of lower judiciary, they believe.

Talking to The News, Justice (retd) Khalil-ur-Rehman Khan said the Supreme Court
 had set a new precedent in the judicial history by monitoring a case from investigation to trial in the lower court.

“This has never happened before and whatever is being done is totally wrong and against the right to a fair trial,” he added. “A totally wrong precedent is being set by the superior judiciary. This has never happened in our career as a judge and it is totally against the norms which we were taught or we knew as a judge of the apex court. 

Everyone has the right to a fair trial under Article 10A of the Constitution. By appointing a judge of the Supreme Court  to monitor the proceedings of the lower court and that too who has already given his verdict on the same case is a violation of Article 10A,” he said.

“How can a lower court judge dare go against the verdict of a Supreme Court especially under those circumstances when the same judge who has given his verdict is monitoring him?” Abid Hassan Minto, one of the senior most lawyers, said he had very strong reservations about the Supreme Court decision.

“I am against the appointment of any judge of the Supreme Court to monitor the proceedings of a lower court in a specific case. From this whole process starting from monitoring of JIT to NAB and Accountability court, I feel as if the apex court wants a specific result. 

The very purpose of referring the matter to the trial court was providing the opportunity of a fair trial. But by monitoring the proceedings of the lower court, the apex court is depriving the respondents of their right to a fair trial”, he commented.

He said the independence of lower judiciary was being hampered and the precedent set by the Supreme Court was reflecting as if the apex court wanted its desired judgment. Justice (R) Nasir Aslam Zahid said the Supreme Court decision must be taken critically. 

He said the Supreme Court should have appointed some other judge to monitor the NAB and accountability court proceedings in the light of Panama Papers case involving former prime minister and his family.

“The Supreme Court decision should be seen critically. The apex court could have appointed some other judge to monitor the proceedings of the NAB and the accountability court. However, I believe there will be no pressure on the lower court judge while hearing this case even if a judge of the Supreme Court is monitoring. We the judges have been trained not to take any pressure from any side and I am sure the decision of the lower court would be fair and without any pressure from any side”, he said.

The judge of the lower judiciary will be extra cautious while hearing the case knowing fully well that his decision will be critically examined. Hence the verdict will be fair and without any prejudice, commented Justice (R) Nasir Aslam Zahid.

Justice (R) Wajihuddin Ahmed said judges always act as neutral and their neutrality reflects in their judgements Therefore, he said, there was no harm in appointing the same judge of the apex court who is well aware of the case. 

He said the accused could not get courts and judges of their choice but they should be given full opportunity to defend themselves. President Supreme Court Bar Association Rasheed A Rizvi said the appointment of a Supreme Court judge to monitor the NAB and the accountability court was totally against the independence of judiciary. 

He said the appointment of a judge of Supreme Court whether he has been a member of Panama Papers case or any other was against the independence of judiciary. “There is no precedent that a Supreme Court judge has monitored a specific case in the lower courts. Though the Anti Terrorism Act 1997 allows the High Court judges to monitor the proceedings of an Anti Terrorism Court, the NAB law doesn’t have any clause for monitoring of its proceedings by a judge of superior judiciary”, commented Rasheed A Rizvi.

Former president SCBA Syed Ali Zafar said this has never happened in the judicial history that a Supreme Court’s judge has monitored the proceedings of a lower court in specific case. “If the Supreme Court has awarded powers to only monitor the timeline of the case that it should be concluded in its given time period then there is no problem. However, if the honourable judge of the Supreme Court will monitor and supervise the proceedings of the lower court then this is a violation of Article 10A of the Constitution”, he commented.

“I hope the powers of Supreme Court judge will be limited only to monitor the timeline of the case and not the proceedings. But if Supreme Court judge supervises the overall proceedings of the said cases in the accountability court then the lower court will be influenced by the Supreme Court,” remarked Mr. Ali Zafar.

He said when the five-member bench of the Supreme Court had already given its verdict on the Panama Papers case and referred it to the NAB and accountability court then it should give full independence to the lower judiciary to work independently.