ISLAMABAD: The Supreme Court on Tuesday night issued the detailed judgment in the NRO case, throwing the ball in the court of the PPP government to implement some of the decisions which could practically destroy or fatally damage the top leadership of the party.
A hushed lull and shock has gripped the PPP leaders and cadres as the prime minister and his cabinet are now caught between the rock and the hard place, since both the options, to accept and implement the judgment or to reject it, would ultimately land the government in a major political crisis.
Prime Minister Gilani had only 24 hours ago promised to the nation in the National Assembly that he would abide by the SC verdict and did not want any clash of institutions. But the NRO judgment will force him to prove whether he is loyal to the party or to the country’s institutions and long-term interests.
The NRO, the most controversial ordinance promulgated by former military dictator Pervez Musharraf, was aimed at giving legal cover to the corruption of politicians and the privileged class. But the SC has virtually cancelled all the benefits and reopened buried cases which could disqualify a big portion of the PPP leadership. The detailed judgment is a reinforcement of the apex court earlier landmark verdict in the NRO case on December 16, 2009, declaring it as never to have existed and against the Constitution, besides holding that the criminal cases could not be withdrawn in the name of reconciliation.
The 287-page detailed ruling was written by Chief Justice Iftikhar Muhammad Chaudhry and signed by all the judges of the apex court, including Justice Khalilur Rehman Ramday, who got retired on January 12.
The detailed judgment, while citing the example of Filipino dictator Ferdinand Marcos, ruled that the Philippine government had also brought the looted money by the dictator back to the country, which could be taken as a reference.
The NRO was challenged by Dr Mubashar Hassan, former bureaucrat Roedad Khan, Qazi Hussain Ahmed, Mian Shahbaz Sharif and others in the apex court in 2007. A 17-member larger bench of the apex court, headed by Chief Justice Iftikhar Muhammad Chaudhry, in its landmark and the expected judgment on December 16, 2009, had declared the NRO an instrument void ab initio, being ultra vires to various constitutional provisions, including articles 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution.
Other members of the bench included Justice Javed Iqbal, Justice Sardar Muhammad Raza Khan, Justice Khalilur Rehman Ramday, Justice Mian Shakirullah Jan, Justice Tassadduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Ch Ijaz Ahmed, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice S Khawaja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Rahmat Husain Jafferi, Justice Tariq Parvez and Justice Ghulam Rabbani.
Three judges of the apex court, including Justice Sardar Muhammad Raza Khan, Justice Ch Ijaz Ahmed and Justice Jawwad S Khwaja, have also added supporting notes in the detailed judgment.
Earlier, in it short order on December 16, 2009, the court had ruled that ìall steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect”.
The court had further ruled that all cases in which the accused persons were either discharged or acquitted under “Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this court and any other such cases/proceedings which may not have been brought to the notice of this court, shall stand revived and relegated to the status of pre-5th of October, 2007 position”.
The detailed judgment noted that the president has an authority under Article 89 of the Constitution to promulgate an ordinance, but he cannot issue temporary legislation, which parliament is not empowered to do.
“A thorough perusal of the federal and the concurrent lists persuades us to hold that the president was not empowered to issue the NRO, 2007, as the subjects covered by its Section 2, 6 and 7 fall beyond the scope of these lists,” the judgment held. The ruling termed the NRO an attack on the judiciary.
The court also ordered the federal government and other competent authorities to proceed against former attorney general Malik Muhammad Qayyum by declaring unauthorised, unconstitutional and illegal his acts of writing to various authorities/courts in foreign countries, including Switzerland.
The court noted that no order or any authority was established authorising the former AG to address unauthorised communications and thus the conduct of Malik Qayyum resulted in unlawful abandonment of claims of the government to huge amounts of the allegedly laundered money lying in foreign countries.
The court also expressed its displeasure over the conduct and lack of proper and honest assistance and cooperation to the court by NAB Chairman Nawid Ahsan, the prosecutor general of the NAB and of Additional Prosecutor General Abdul Baseer Qureshi. It suggested the federal government to appoint competent and honest persons who fulfil the criteria outlined in Section 6 of the NAB ordinance. The court asked the government to go through its observations in the Asfandyar Wali case. The verdict regretted that the conduct of the NAB bosses made it impossible for the court to trust them.
However, till such fresh appointments the present incumbents may continue to discharge their obligations strictly in accordance with the law, but obligated them to transmit periodical reports of the actions taken by them to the monitoring cell of this Court, which is being established through succeeding parts of this judgment.
(The News: 20 Jan 2010)
Monday, January 18, 2010
Government seeks review of NRO verdict
ISLAMABAD: In an interesting move fraught with legal and judicio-political implications, the federal government on Saturday filed a petition in the Supreme Court, praying for reviewing its December 16, 2009, judgment declaring the National Reconciliation Ordinance NRO as violative of various provisions of the Constitution.
Filed through advocate Masood Ahmed Chishti, the government prayed to the court to review the verdict regarding Swiss accounts and re-opening of cases under the NRO.
The government contended that the apex court has made a “mistake” in its short order while ruling that convictions in absentia still hold the field bearing in mind its own judgment in an earlier case and settled legal position in Pakistan vis-a-vis the CrPC that an accused cannot be convicted in absentia.
“The apex court failed to consider the doctrine of past and closed transactions when passing the short order,” the government’s petition said.
The Supreme Court on December 16, 2009, in its landmark judgment, declared the NRO to be an instrument void ab initio, being ultra vires and violative of various provisions of the Constitution, including Articles 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227.
After thrashing the NRO, the Supreme Court had ruled that all those cases which were abolished under the ordinance stood revived and further ruled that the initial requests for mutual legal assistance, securing the status of a civil party and the claims lodged to the allegedly laundered money lying in foreign countries, including Switzerland, are declared never to have been withdrawn.
The government further contended that the apex court also made a “mistake” while ruling in its short order on the NRO that it had the power to issue directions or orders to the federal government to review requests, claims, and status of cases outside Pakistan while the fact is that such powers and decision fall within the exclusive purview of the executive.
It was further argued that the apex court also made a “mistake” in holding that the then attorney general needed to show to the apex court an order or authority to address communications to various authorities, courts and foreign countries, including Switzerland.
“This honourable court did not fully appreciate that on the same logic the original request by the then attorney general in the year 1997 addressed to the Swiss authorities to institute proceedings was without lawful authority and of no legal effect,” the government contended.
The review petition further contended that the apex court also erred in holding that NAB functionaries should transmit periodical reports of the actions, taken by them to the monitoring cell of the apex court unless this only referred to reports concerning the progress of the judicial proceedings, initiated by NAB as opposed to its investigative and other functions as under the Pakistan common law system, the judiciary is not a part of investigative phase of any accusation.
It prayed that the apex court’s short judgment of December 16, 2009, given in the petition, challenging the NRO be reviewed in the interest of justice.
(The News: 17 Jan 2010)
Filed through advocate Masood Ahmed Chishti, the government prayed to the court to review the verdict regarding Swiss accounts and re-opening of cases under the NRO.
The government contended that the apex court has made a “mistake” in its short order while ruling that convictions in absentia still hold the field bearing in mind its own judgment in an earlier case and settled legal position in Pakistan vis-a-vis the CrPC that an accused cannot be convicted in absentia.
“The apex court failed to consider the doctrine of past and closed transactions when passing the short order,” the government’s petition said.
The Supreme Court on December 16, 2009, in its landmark judgment, declared the NRO to be an instrument void ab initio, being ultra vires and violative of various provisions of the Constitution, including Articles 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227.
After thrashing the NRO, the Supreme Court had ruled that all those cases which were abolished under the ordinance stood revived and further ruled that the initial requests for mutual legal assistance, securing the status of a civil party and the claims lodged to the allegedly laundered money lying in foreign countries, including Switzerland, are declared never to have been withdrawn.
The government further contended that the apex court also made a “mistake” while ruling in its short order on the NRO that it had the power to issue directions or orders to the federal government to review requests, claims, and status of cases outside Pakistan while the fact is that such powers and decision fall within the exclusive purview of the executive.
It was further argued that the apex court also made a “mistake” in holding that the then attorney general needed to show to the apex court an order or authority to address communications to various authorities, courts and foreign countries, including Switzerland.
“This honourable court did not fully appreciate that on the same logic the original request by the then attorney general in the year 1997 addressed to the Swiss authorities to institute proceedings was without lawful authority and of no legal effect,” the government contended.
The review petition further contended that the apex court also erred in holding that NAB functionaries should transmit periodical reports of the actions, taken by them to the monitoring cell of the apex court unless this only referred to reports concerning the progress of the judicial proceedings, initiated by NAB as opposed to its investigative and other functions as under the Pakistan common law system, the judiciary is not a part of investigative phase of any accusation.
It prayed that the apex court’s short judgment of December 16, 2009, given in the petition, challenging the NRO be reviewed in the interest of justice.
(The News: 17 Jan 2010)
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