Sugar inquiry panel, report illegal: Commission’s formation ‘incomplete, biased’, says SHC

The News

KARACHI: The Sindh High Court on Monday quashed the Sugar Inquiry Commission report as unlawful and directed the National Accountability Bureau, Federal Board of Revenue and other statutory bodies’ investigation agencies to conduct independent inquiry with regard to corruption, tax evasion, money laundering and other allegations against the sugar mills without being influenced by the inquiry commission report.
The order came on the petition of Mirpurkhas Sugar Mills and others, which sought quashment of the Sugar Commission inquiry report as unlawful. The SHC’s division bench, headed by Justice Mohammad Karim Khan Agha, observed that any form of corruption, tax evasion, money laundering, illegal cartelization needs to be stamped out with an iron hand but at the sametime this must be done in accordance with the law and by following due process as mandated by Article 10 (A) of the Constitution.
The court declared that the inquiry commission was constituted without following the mandatory rules of business and there was failure of the federal government to gazette the notification of the commission within due time. The court observed that there was incomplete composition of the commission and members of the commission were biased besides the petitioners were not provided opportunity of hearing in the commission to rebut the allegations. The court observed that prejudice was caused to the petitioners by the report, the action plan and letters which were sent by the adviser to PM on accountability to various statutory bodies. The court declared that violation and interference in the relevant schemes of law and the Constitution was done by the Executive to the prejudice of the petitioners and several rights of petitioners under 4, 10(A), 14 and 25 were violated by the government and quashed the impugned notification and inquiry commission report as unlawful.
The court directed the chairman NAB, FBR and director general FIA to open independent inquiries under their relevant law to determine act of corruption falling within the purview of NAB Ordinance, illegality under taxation legislation and anti-money laundering without any reference of the commission report or letter of adviser to PM on accountability. The court observed that inquiry shall ensure full due process rights of the petitioners which shall not associate any person involved in the preparation of the commission’s report and they shall include an independent expert with full knowledge of sugar industry in Pakistan and such inquiries shall be taken to its logical conclusion under the NAO, tax legislation and anti money laundering law.
The court also directed the Competition Commission of Pakistan, Security Exchange Commission of Pakistan and State Bank of Pakistan to fulfill their respective mandates in accordance with the law with respect to the petitioners and the sugar industry without reference to the impugned report or any letters sent to them in connection with the report.
The court observed that the objectives of the government might be in this case setting up a commission to probe rise in sugar prices but it must fulfill those objectives strictly in accordance with the law and the Constitution and no other manner.
The court was of the view that corruption, tax evasion, money laundering, cartelization are abhorrent and cancers which are eating away at the very fabric of our society and its economic development and in cases where accused have been convicted of such offences, they should be dealt with by an iron hand. The court observed that such persons or bodies suspected of such criminal activities must be pursued strictly in accordance with the law and the Constitution and afforded the due process of rights of all accused as guaranteed by the Constitution.
Regarding the constitution of the commission, the court found that 50pc of the commission members were biased while remaining two out of four members were strangers having been illegally appointed in the commission whereas two out of seven members remain, which can be safely relied upon as unbiased and legally appointed.
The court observed that the petitioners were denied the right of hearing, therefore, the commission report has no legal value in respect of petitioners and it could not be used against them by regarding it as one-sided report. The court observed that none of the commission members had any expertise and experience in sugar industry though the commission had the power to appoint such expert.
Regarding issuance of letter to investigation agencies by Adviser to Prime Minister on Accountability Mirza Shahzad Akbar after the commission report, the court observed that issuance of such letters along with the commission report has severely undermined the prospect of any fair and independent inquiry and severely prejudiced the petitioners and other sugar mills in Pakistan as all such letters are struck down as being no legal authority.
The court observed that issuance of such letters to investigation agencies was not in line or in accordance with the scheme of the law as envisaged by the relevant statute or the Constitution and to allow such actions would not only defeat the intent and spirit of each piece of legislation but also create a dangerous precedent whereby government could use their executive authority to attempt to victimize, witch hunt or otherwise attack their political opponents through such statutory bodies which could be contrary to rule of the law and good governance.
The court observed that investigation bodies are governed by their own statutes and the Executive has no power to interfere with such bodies, which must carry out their work independently in accordance with the law. The court observed that even junior officers in a statute cannot be directed to do certain things by their superiors unless it is in accordance with the powers conferred on them by the concerned statute. The court expressed concern over the large number of special assistants to the prime minister and observed it appears that many of the special assistants to PM consistently attend cabinet meetings are unelected persons who in some cases would not even qualify to be elected under the Constitution as either MNA or senator and they have no accountability to the people as they were unelected, which prima facie appears to be contrary to amongst others articles 91, 92 and scheme of the Constitution.
The court observed that the concept of so many unelected SAPMs who consistently and regularly attend the cabinet are unelected and unaccountable to the people however is alien to the Constitution and the concept of our parliamentary system of government, rather it is more in accordance with the Presidential system of the government which was part of abrogated constitution in 1962. The court observed that time may come when the superior courts might need to examine this issue specially as it must cause heartburning to the elected representatives.
The court further took notice over longstanding practice of governments by ruling through promulgation of presidential ordinances and observed that such practice once again militates against the system of parliamentary democracy whereby laws are promulgated by Act of parliament whilst following the procedure laid down under the Constitution. The court observed that by governing in such manner, it begs the question as whether successive governments, including the present government, may in effect rather than abiding by and following the Constitution are by design deliberating by passing or circumventing the relevant articles of the Constitution without good reason and for reasons not contemplated by the Constitution.
The court observed that presence of an adviser on accountability only serves to undermine the independence and credibility of the NAB as this leads to perception that the government was working hand in glove with the NAB against its opponents especially when the perception arises that it is mainly the opponents of the government who NAB is proceeding against as observed recently by the SC in Khawaja Saad Rafiq case. The court observed that adviser to PM on accountability regularly lambasts opponents of the government for corruption via media but keeps mum on such acts allegedly committed by the government and this undermines the perception of evenhanded accountability across the board in Pakistan in the eyes of public at large.

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