by Ansar Abbasi
ISLAMABAD: General (retd) Pervez Musharraf can be tried under Article 6 of the Constitution for his November 3, 2007 action as well as for his October 12, 1999 martial law, but the 18th Amendment gives constitutional cover to the PCO oath taken by superior court judges in 2000.
Although the 2008 parliament scrapped certain parts of the 17th Amendment passed by Musharraf’s parliament in 2004, the 18th Amendment endorses the indemnity of the oath of judges under PCO taken in 2000.
Therefore, as per the Constitution Musharraf could be tried for high treason for twice abrogating the Constitution, once in October 1999 and again in November 2007, but the judges who had taken oath under Musharraf’s PCO in 2000 are protected by the pre as well as post 18th Amendment Constitution.
Musharraf’s 12 October 1999 martial law, which was indemnified by the 2002-2007 Parliament under dictator’s rule, did not get the 2008-2013 parliament’s endorsement but the dictator’s consequent actions including the oath of judges in 2000 under the PCO got complete constitutional protection in the 18th amendment.
Those media commentators, politicians and opponents of the present independent judiciary, who are desirous of dragging others including the PCO judges of the 2000 PCO, in the high treason case are making an unconstitutional demand. The 18th amendment despite having declared the 2000 PCO as unlawful protected the superior court judges, who had taken the said oath, through 270AA (3), which reads as:
Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (I of 2000), shall be deemed to have continued to hold the office as a judge or appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly;
Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.”
Musharraf’s parliament through its 17th Amendment, had validated/indemnified the October 1999 martial law of Musharraf besides giving constitutional protection to all other president’s orders, ordinances, chief executive’s orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive’s Order No. 12 of 2002, the amendments made in the Constitution through the Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order , 2002 (Chief Executive’s Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002) and all other laws made between October 12, 1999 and the date on which Article 270AA was inserted by Musharraf’s parliament in 2004.
As the previous parliament could not completely scrap the 17th Amendment, therefore, it gave partial indemnity to all presidential orders, laws etc that justified the consequential actions of Musharraf’s first martial law. The 18th Amendment also did not indemnify the November 3, 2007 action of Musharraf but gave constitutional cover to the general elections of February 2008 as announced by the former dictator.
ISLAMABAD: Top bosses of the NAB have simply vanished to respond to the media queries pertaining to the alleged extreme coercive measures that were said to have been used during the last days on Kamran Faisal that may have led to his sudden death, either by suicide or murder.
Chairman NAB Fasih Bukhari and Director General Financial Crime Wing Kausar Malik, who are alleged to have held an insulting meeting with Kamran Faisal on the night of Jan 16, are neither responding on their mobile phones nor have replied to the SMS messages sent to them.
After repeated efforts the NAB spokesman Zafar Iqbal was, however, helpful to the extent of responding to an SMS message, conveying: “Sorry for late response. In fact I’m still with some guests. As far as you question is concerned, it is totally untrue.”
The spokesman was asked if he could confirm whether Kamran Faisal was brought to Chairman’s office by Kausar Malik where the officer was alleged to have been pressurised to change his report in favour of the prime minister in the RPPs case.
A NAB official, speaking on the condition of full confidentiality, confided to The News that Kamran Faisal was under extreme duress to change his investigation report that had become the basis for the SC’s recent order to get Prime Minister Raja Pervaiz Ashraf and over 20 others arrested in the RPPs case.
The source said that in the evening of Jan 16 Kamran Faisal, who was an assistant director of NAB Rawalpindi, was sitting with his colleagues in the office of Rawalpindi NAB Additional Director Staff officer Shafqat, when he received a phone call from NAB Islamabad headquarter to rush there. Besides others, it is said, assistant director Shahzad was also present.
It is said that the phone call from the Bureau’s headquarter had come from Director General Financial Crime Wing Kausar Malik. After the phone call, Kamran is said to have shared with his colleagues that he was being summoned to Islamabad HQs. On this the NAB Rawalpindi additional director staff officer provided to Kamran the official vehicle Kia Registration No. 4242 to attend this urgently called meeting in Islamabad. The name of the vehicle’s driver was said to be Tariq.
When approached by The News Shafqat refused to discuss anything regarding this mysterious death. However, the source claimed that Kamran reached NAB’s headquarters and went to Kausar Malik’s office where he was told that he should change his report for the sake of the institution’s respect as on the next day (Jan 17) the Supreme Court was to hear the PM’s arrest case.
The source added that Kamran was reluctant to change his report on the wishes of his superior. Later, it is said, Kausar Malik took him to the office of Chairman NAB Fasih Bukhari who was also accompanied by one of the key prosecutors of the Bureau.
In the Chairman NAB’s office, the source said, all the three again pressed him to change his report and suggested to him that he could give the reason that for being upset he had wrongly included the name of Prime Minister Raja Pervaiz Ashraf in the RPPs corruption case. It is said that he was also asked to sign a blank stamp paper.
The source claimed that after his refusal he was asked to leave. Kamran later got back to Kausar Malik’s office and shared with some of his Rawalpindi colleagues what had happened to him. On Jan 17 hearing of the RPPs case, it is said that Kamran was also present in the SC.
Fasih Bukhari was contacted several times but he did not pick up his mobile. Bukhari also did not respond to The News query forwarded to him through SMS mobile message.
Kausar Malik also did not respond to The News. An SMS message sent to him on Friday evening was responded in the midnight conveying that his mobile phone battery got exhausted so “just saw” the message. He promised to coordinate with The News on Saturday but it did not happen despite repeated efforts. Kausar Malik even did not bother to respond to the questions sent to him.
These questions included: a) Will you please explain why did you call Kamran to your office on 16th evening? B) Why did you take him to the Chairman NAB? c) Did you and the chairman pressurise him to change his report?
Meanwhile an unidentified caller from an official number starting with 924 figure had called this correspondent on Friday evening claiming that late on the evening of Jan 17 Kamran was badly scolded by his senior in the Rawalpindi NAB office for refusing to change his investigation report. The caller claimed to be a young officer of the NAB. However, this fact has also not been officially confirmed.
Transparency International Pakistan says Gilani tenure has given a loss of Rs 8,500 billions in corruption so far. Still nincompoos and corrupts in government expect people to pay taxes like “responsible” citizens. Yes, people like us who pay taxes despite corruption are responsible and they are responsible for beeing ignorant.
People should go for a collective boycott of taxes and take back the country from these evil ruling elite.
by Ansar Abbasi
ISLAMABAD: Pakistan has lost an unbelievably high amount, more than Rs8,500 billion (Rs8.5 trillion or US$94 billion), in corruption, tax evasion and bad governance during the last four years of Prime Minister Yusuf Raza Gilani’s tenure, Transparency International Pakistan (TIP) claims.
The TIP advisor, Adil Gillani, told The News that the real impact of corruption in the country’s economy is far more than what is generally estimated or what is formally uncovered. He believes that Pakistan does not need even a single penny from the outside world if it effectively checks the menace of corruption and ensures good governance.
It is generally believed that the four years of the present regime under Gilani had been the worst in terms of corruption and bad governance in the country’s history. Past records of corruption were broken and Pakistan started rising in the ranks of the most corrupt nations of the world.
There has been no check on corruption as the anti-corruption institutions like the National Accountability Bureau and Federal Investigation Agency instead of checking corruption have been siding with the corrupt.
These institutions have been helping the corrupt to get off the hook by distorting and mutilating the evidence in favour of the influential accused.
Adil Gillani, the TIP representative, who too has been haunted by the government during these years for producing corruption reports, explained that the TIP pointed out corruption of Rs390 billion in 2008, Rs450 billion in 2009, Rs825 billion in 2010 and Rs1,100 billion in 2011 under the present regime. The total of these identified cases of corruption is Rs2,765 billion.
In addition to this, he explained the following:
The minister of finance of the present regime himself confirmed corruption in FBR of over Rs500 billon per year, which makes the total Rs2,000 billion; Auditor General of Pakistan pointed out Rs315 billion corruption in 2010; Public Accounts Committee recovered Rs115 billion in 30 months till 2011; circular debt is Rs190 million; KESC was given Rs55 billion illegal benefits per annum since 2008; state-owned enterprises like PSO, PIA, Pakistan Steel, Railways, SSGC, SNGC are eating away Rs150-300 billion per annum; tax to GDP ratio in 2008 was 11%, which in 2011 has reduced to 9.1% instead of being increased.
Gillani explained that Pakistan’s Gross Domestic Product is worth US$175 billion and in the light of this the drop of 1.9% in the tax GDP means annual loss of US$ 3.3 billion. This confirms that FBR is losing Rs300 million per annum, which is annual additional loss since 2008 and stands at Rs1,200 billon in four years
The TIP adviser added that India’s tax-GDP ratio is 18%, and at that rate, Pakistan’s tax evasion/corruption in FBR is 9% of $175 billion, which is US$15.5 billion per year, i.e. Rs1,400 billion per year.
It is worth mentioning here that it is not only the Transparency International but there have been different international bodies including the World Bank and world capitals, which have been showing their concern over rising trend of corruption in Pakistan under the Gilani’s regime. It was mounting corruption and extremely bad governance, which even dithered the outside world to offer cash to Pakistan during 2010 and 2011 floods, which devastated different parts of Pakistan and affected millions of people.
At home the corruption became a fashion in such a shameless manner that even the cabinet ministers started openly pointing fingers at each other and even at the highest levels including the prime minister. Some even approached the Supreme Court but despite all this, corruption remained the hallmark of the present regime, which instead of curbing it started defending it in the name of democracy.
Imran Khan Chairmen PTI,Haroon Rasheed and Mr Moeed Pirzada joins Kashif abbasi to discuss Raymond Devis Release.
PTI to launch nationwide protests over the issue on Friday.
There are also reports that Jamet e Islami and other sections of society will also launch their protests. I think this is the the right time to take big decisions for our self respect.
By Ansar Abbasi
ISLAMABAD: On the eve of a new global report on corruption, the Transparency International Pakistan has claimed that the TIP alone has identified corruption cases worth Rs 300 billion in different federal government departments during one year.
Talking to The News Chairman TIP Adil Gilani lamented that the government did not show any interest in probing these cases of corruption. He, however, said that it was only the Supreme Court of Pakistan, the Public Accounts Committee of the National Assembly and the PPRA, which took notice of some of these corruption cases.
He explained that generally the identified corruption cases involved violation of the Public Procurement Regulatory Authority (PPRA) Rules of 2004. The Transparency International is releasing its report on Tuesday at 2 pm amid indications that Pakistan is all set to hit further lows amongst the world’s most corrupt nations. The 2009 report showed Pakistan climbing five numbers from the previous 47 to become the 42nd most corrupt country in the world.
Gilani expressed his disappointment that there was no effective accountability apparatus presently operational in Pakistan due to which corruption was on the rise. He explained that the TIP referred a number of corruption cases to the NAB but it did not proceed even in one single case.
Amongst the mega corruption cases, he said the Rental Power Projects of the government, presently under the scrutiny of the Supreme Court of Pakistan, was on the top. He claimed that under the Rental Power Projects, the government awarded 14 contracts in violation of the PPRA rules as also stated in the ADB report, causing a loss of over US$ 2 billion. He said that the TIP had also written to the apex court on this case of massive corruption and irregularity.
He said that the TIP also wrote to different authorities about corruption in Pakistan Steel, whose sale policy and procurement had caused reported loss of Rs 22 billion. This corruption case, though ignored by the government, had taken been up by the Supreme Court of Pakistan.
Gilani also talked of the alleged violation of Pubic Procurement Rules 2004 by Pakistan Railways in the tender for procurement of 150 locomotives, only US made, which might have caused a loss of at least Rs 40 billion to the national exchequer. The project, he said, is presently on hold.
Regarding the OGDCL, which made headlines in the recent past when Prime Minister Gilani appointed his jail mate and a convict who was not even a graduate as its managing director, Gilani said that the TI had also reported to the government authorities about the purchase of compressors for $30 million for Qadirpur Gas Field without inviting public tenders from M/s Valerus, which is a violation of the Public Procurement Rules 2004. He said the TIP also reported another violation of the Public Procurement Rules 2004 in tender for supply of rental drilling rigs costing the Government of Pakistan Rs 3 billion per year. He added that the Trading Corporation of Pakistan awarded contracts at exorbitant rates to cartels of Stevedores and Transporters in 2009, wheat and fertiliser, causing loss of over Rs2 billion.
Regarding the Trade Development Authority of Pakistan (TDAP), he said, it saved a claim of US $2.2 million for extra/additional work to the contractor of Expo 2010-Shagnahi, China, which was also supported by the Ambassador of Pakistan in China. On TIP objections, he said, the TDAP rejected the claim.
About the National Insurance Corporation Limited (NICL), he said, the TIP identified a case of purchase of 803 kanal-19 marla plot in Dubai’s Liberty Tower at the rate of UAE Darham 2,750 per square feet against the market price of AED 1,200 per square feet. Alleged loss to exchequer in this case, he said, was Rs 900 million. In another case, 10-acre plot was purchased in Korangi Deh Phihai, in August 2009 at the rate of Rs 90m per acre, against maximum market price of Rs 20m per acre. It caused a total loss of Rs 7 billion.
In yet another case pertaining to the NICL, land was purchased in Lahore in 2009 for Rs1.5 billion against market value of Rs 30 million. It caused a loss of Rs 1.2 billion to public kitty. In case of EOBI, he said that the TIP challenged the EOBI to invest in one of the four Centaurus Towers in Islamabad and the Intercontinental Hotel, Islamabad. The EOBI was also purchasing Karachi-Hyderabad Motorway and investing Rs 27 billion against the provisions of EOBI Act but the PAC later stopped this move.
Regarding the NHA, he said that according to the AGP Report 2008 NHA has irregularities of Rs 29 billion out of Rs 42 billion annual fund. He said that after eating away its annual development budget of 2010, now the NHA intends to reconstruct the M-9 Karachi-Hyderabad through some other investment. It needs Rs 27 billion for the project. He said that the NHA management planned to use EOBI funds for M-9.
Gilani said that Zafar Iqbal Gondal (brother of a PPP minister), who was Member Finance NHA, has been transferred and posted in January 2010 as Chairman EOBI. Asad Ullah Shaikh, another PPP appointee, who refused to allow Rs 27 billion to be used for a losing project, was sacked to make way for Gondal. He said that after these changes, the EOBI made a proposal to become a partner of the NHA on the M-9 under the Public Private Partnership Scheme of the GoP as BOT (built, operate & transfer) Project, based on the recovery of toll tax.
Gilani said that nowhere in world, road projects on BOT basis are financially viable but still the EOBI decided to own M-9 and build it. In 2005, he said, the board of trustees of the EOBI had decided to invest in the real estate. He added that for this purpose, PRIMACO (Pakistan Real Estate Investment and Management Company Ltd) was established, which is a wholly owned subsidiary of EOBI. PRIMACO has been registered with Securities and Exchange Commission of Pakistan (SECP) and this company has launched many real estate projects.
The PRIMACO, he said, has overstepped its mandate and prepared a proposal for the EOBI to build the M-9 at Rs 27 billion. They have also proposed to make the NHA as executing agency for award of consultants and contractors’ contract, total 10 numbers, and appoint PRIMACO as project managers of this project. The NHA, he said, has already awarded 10 contracts to blue-eyed contractors and consultants, without public tendering, biggest being Rs 4 billion contract to one contractor against PPRA Rules, and are awaiting approval of the EOBI to send an official letter of government approval to proceed. According to the EOBI Act and rules, he said the EOBI cannot invest public pension funds in an infrastructure project. The EOBI under Rule 2 (i) can invest two-and-a-half per cent of the portfolio. The EOBI’s current portfolio is around Rs 120 billion, minus billion of rupees losses in share market. This means only Rs 1.8 billion can be invested in M-9. But M-9 is a Rs 27 billion project.
Gilani added that in July 2010, the TIP wrote a letter to the NHA for its failure to obtain CAR, (Contractor All Risk Policy) from the NLC Northern Bypass Shershah bridge contracts causing the exchequer to pay Rs 170 million for the reconstruction of the bridge.
Additionally, contracts in 2008 & 2009 worth Rs 467 million, Rs 203 million and Rs 124 million were awarded to NESPAK in violation of Public Procurement Rules 2004. Gilani added that none of the contracts awarded by the NHA in the last two years are in compliance with the Public Procurement Rules 2004. In case of PEPCO, the TIP chief said that it reported Rs 2-2.5 billion corruption in purchase of 30 million energy saver bulbs scheme costing Rs 6 billion.
Another attack of State Institutions on Freedom of Expression;Pakistani journalist kidnapped and tortured
Another attack on freedom of expression is made by so called state institutions which run like mafias under few criminals.
Umar Cheema, investigative reporter from The News, was kidnapped and tortured by state institutions. Also the kidnappers threatened that they will do this with other journalists writing against the criminal acts of government and its institutions. Kidnappers told Umar that Ansar Abbasi is next on their list.
CJ LHC has taken suo motto of this incident and an inquiry is being ordered.
We strongly condemn this act of terrorism and whoever is involved must be brought to justice.
LHC CJ takes suo moto notice of Cheema torture. PM Gilani, Nawaz console Umar Cheema on phone
LAHORE: Lahore High Court (LHC) Chief Justice Khwaja Muhammad Sharif on Saturday took suo moto notice of the torture of The News (a local newspaper) reporter Umar Cheema and summoned the Islamabad inspector general police on Monday.
Taking notice of the incident, the chief justice observed that torture of the journalist was an attack on press freedom, which was protected under the Constitution of Pakistan.
“Not only the judiciary but every citizen is duty bound to stop such incidents,” Justice Sharif further observed.
He directed the federal IGP to appear in the court along with the complete case record and apprise it of the facts of the incident. He also directed Additional Advocate General Muhammad Hanif Khatana to assist the court in the matter.
Read complete : http://www.paktribune.com/news/index.shtml?231274
By Ansar Abbasi
Musharraf was denied immunity in CJP restoration case
By Ansar Abbasi
ISLAMABAD: The critical issue whether the president enjoys immunity under Article 248 of the Constitution was categorically and specifically decided by the Supreme Court and it was denied to former president Pervez Musharraf in the case of restoration of the then-deposed chief justice Iftikhar Mohammad Chaudhry.
While the short order in the case given on July 20, 2007, by a 13-member bench, headed by Justice Khalilur Rehman Ramday, restored the chief justice, in its detailed judgment of the same case, given just 35 days ago, no room for any ambiguity has been left.
The detailed judgment, which did not receive much legal or media attention, addressed the issue, which Prime Minister Yousuf Raza Gilani has now referred back to the Supreme Court in his speeches in the National Assembly, and gave reasons and past references to deny immunity to a sitting president, even in criminal cases as provided for in Article 248 of the Constitution.
The detailed judgment issued on Dec 24 clearly states: “…allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice, no exception could be taken to implead the president as a respondent…”
Responding to objections raised in 2007 by the then-government (of Gen Musharraf), over impleading the then-president, the detailed judgment also refers to several previous judgments on this specific issue of Article 248 and cites examples where such immunities were not accepted.
The Ramday judgment refers to mala fide actions of Gen Musharraf and ruled in Para 107: “As would appear from the averments made in this petition, some of which have even been noticed in the earlier part of this judgment, the mainstay of the case of the petitioner, the chief justice of Pakistan, is that the entire exercise in question had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the chief justice of Pakistan being summoned by the president to the Army House/President’s Camp Office; detention of the chief justice at the said office for about five hours; attempts made to secure the resignation of the chief justice under duress and through coercion; the alleged illegal detention of the wife and the children of the chief justice in their house and the alleged unconstitutional removal of the chief justice from his office and appointment of acting chief justice of Pakistan. Since such serious allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice of Pakistan, no exception could be taken to implead the president as a respondent in this petition, which was in fact imperative in view of the above-mentioned precedent cases.”
Interestingly, this judgment says the president can be impleaded for his actions of illegal detention of the chief justice, his wife and children, etc. All these actions are of criminal nature, which a sitting president ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting president. The Constitution does not give immunity to president or any other public office holder in civil matters.
Referring to the objection raised that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was seen by the then government as against the provisions of Article 248(1) of the Constitution, the judgment reproduced the said Article, which reads as: “The president, a governor, the prime minister, a federal minister, a minister of state, the chief minister and a provincial minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.”
Many past judgments were also quoted by the Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
The judgment added: “In our jurisdiction the pleaded Article 248 came up for interpretation in Chaudhry Zahur Elahi’s case (PLD 1975 SC 383). The scope and the operational area of the said provision was so stated by this court: “…the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”
The matter was further explained in these words: “Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or un-constitutional acts.”
This court, the judgment said, when confronted again with the protection provisions of Article 248 in Amanullah Khan’s Case (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added in para 56 that: “If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from mala fide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”
“It was further declared: “Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”
“The views of Nasim Hassan Shah J in the same case are also enlightening for the resolution of the issue in question. His views were: “Now the immunity to a minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which, he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”
Similar views were expressed by this court in Nawabzada Muhammad Umar Khan’s Case (1992 SCMR 2450) which were as under: “Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others Vs the Federal Government of Pakistan through secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092).”
While there are such specific rulings and judgments given by the Supreme Court itself, the latest being on December 24, 2009, a new case filed by Khalid Khwaja is again before the Supreme Court to give another judgment on the subject.
The prime minister has promised in Parliament that he would act if the SC clarified the ambiguity, although after reading the Dec 24, 2009, judgment of Justice Ramday, there is no ambiguity left, an expert said, lamenting that perhaps no one in the government had bothered to go through this detailed judgment that has squarely discussed the issue of President’s immunity.
By Ansar Abbasi
ISLAMABAD: Former Naval chief Admiral Abdul Aziz Mirza gives credence to the recent French investigative report that talked of almost $49 million kickbacks in the Agosta-submarine deal allegedly received by President Asif Ali Zardari and others, including Naval officers, disclosing that the then Benazir government had urged the Pakistan Navy to go for the French subs.
Mirza, while quoting the then Naval chief Admiral Saeed Khan, also revealed that Benazir Bhutto’s defence minister Aftab Shaban Mirani had clearly indicated to the Pakistan Navy’s high command the government’s preference for the induction of the French submarines.
Despite these clear indications by the defence minister, the top naval command again met and deliberated on the subject and decided to recommend two options to the government — the British Upholder and the French Agosta. The government later approved the induction of the Agosta.
Mirza, who led the Pakistan Navy from Oct 1999 to Oct 2002, said the Navy first formally came to know about the kickbacks in the Agosta deal in 1998 following which it proceeded against three officials of the rank of captain and commodore for getting bribe. They were eventually removed from service. “My hunch is that besides the politicians, some top ranking naval officers, even above the rank of commodore, might also have received kickbacks as reflected in the recent French media reports. They, however, (the top Naval officials) remained undetected for want of proof or witnesses,” Mirza said.
He claimed that even the condemned formal Naval chief, Masoorul Haq, was not convicted of the Agosta kickbacks but for the bribes that he had pocketed in other defence deals. According to a recent report in a leading French newspaper, investigations have revealed that Zardari received $4.3 million in kickbacks from the sale of three Agosta 90 submarines for Eu825 million. These reports also suggest that Naval officials might have received kickbacks out of this $49 million.
This deal was struck during Benazir Bhutto’s second tenure in 1994. According to former DG Naval Intelligence Commodore Shahid Ashraf, he had informed in early 1995 the then Naval chief Mansoorul Haq and his vice chief vice admiral AU Khan of the cash pay off to Capt ZU Alvi and Col (retd) Ejaz as bribe for further distribution amongst Naval officers.
Ashraf, who was dismissed from service, claimed in his statement in 1998 that he had informed the Naval chief and the vice chief in early 1995 of the Agosta kickbacks issue but was asked by them to keep quiet. Ashraf insisted that he was innocent and victimised by the Pakistan Navy in 1998 to save the skin of several other allegedly corrupt Naval officers, who had received kickbacks in the Agosta deal.
Admiral Mirza admitted the facts that Ashraf did make the same claim in his statement in 1998 and that retired vice admiral AU Khan too had confirmed the same fact when questioned in 1998 by the fact-finding inquiry.
But Admiral Mirza still insisted the ex-DG Naval Intelligence did receive kickbacks in the Agosta deal as was confirmed by the other two officers, Capt ZU Alvi and Capt Liaqat Ali Malik, who were blamed to have received bribes directly from the French. For the same reason, he said, the ex-DGNI was penalised.
He said that Capt ZU Alvi and Col (retd) Ejaz were the two main witnesses with the former having agreed to become approver on the condition of revealing all the details of kickbacks and corruption. Mirza though conceded that Ashraf was Admiral Mansurul Haq’s right-hand man, he did never carry the reputation of being corrupt before he was convicted to have received Rs 1.5 million from Alvi, who was the direct recipient of the kickbacks.
Mirza, who has also served as the country’s ambassador to Riyadh, said that one Zafar Iqbal, a middle man of the French company, was also interrogated and had admitted to have received $160,000 to be paid to four commodores. He, however, said that both Iqbal and Ejaz never paid this amount to anyone of them. The former Naval chief said that the four commodores were never charge sheeted or confronted by a board of inquiry as a fact-finding inquiry had already found them innocent, which led to their promotion as rear admiral.
Zafar Iqbal claimed during interrogation to have been assigned by the French company to bribe the Naval officials up to the rank of commodore. For top ranking Naval officers and for political bosses, Mirza quoted Zafar Iqbal to have claimed that some other middle men, including Aamir Lodhi, were responsible for the kickbacks and commissions of persons with higher status both in Navy and in the government.
Since these middle men were never caught and probed so it still remains a secret as to who amongst the senior most Naval officers of that time received how much money, he said. But he believed that there were some top men, who must have received the kickbacks but remained free.
Referring to the latest French media reports about the Agosta kickbacks, he said he gives such reports due credence also for the reason that the French, Germans, Italians and other manufacturers of defence equipment do have a recognised provision of allocating about 10 pc of the contract value as kickbacks, entertainment, gifts etc as a matter of policy.
When asked whether the kickbacks and commissions in defence deals in Pakistan could be curbed, he stated that with a little bit of sincere effort the kickbacks in defence procurements could be considerably reduced if not altogether eliminated.