Wednesday, January 11, 2012
SC gives six options to government in NRO case.
The five-member SC full bench also observed that action may be taken against the president for violating the Constitution. The bench referred the matter to a larger SC bench, to be constituted by Chief Justice Iftikhar Muhammad Chaudhry, for taking a final decision on the matter on Jan 16.
“Prima facie the Prime Minister is not an honest man and violated his oath,” the bench headed by Justice Asif Saeed Khan Khosa ruled in the verdict of the NRO implementation case.
The court held that the “persistent, obstinate and contumacious resistance, failure or refusal” of the prime minister to completely obey and execute the directions issued in the NRO case reflects that “at least prima facie, he may not be an ‘honest’ person on account of his not being honest to the oath of his office and seemingly he may not be an ‘ameen’ due to his persistent betrayal of the trust reposed in him as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions.”
The court ruled that the government had failed to implement the verdict and was not taking interest in implementing the earlier NRO verdict. It also observed that instead of honouring his obligations under the Constitution, the prime minister had instead preferred party loyalties over his constitutional obligations. The court noted that the president in an interview to Geo News had said his government would not implement one part of NRO verdict.
The court in its order recommended the case to the chief justice to form a larger bench to hear the case to examine the six options including to initiate the contempt of court proceedings against the chief executive and the secretary law for not implementing the NRO verdict; to declare the chief executive ineligible from the membership of the Parliament; formation of a commission to get the verdict implemented, to leave the issue to the people to decide on the issue and the court exhibit patience; initiation of contempt proceedings against NAB chairman; and action may be taken against the president for violating the Constitution.
The SC issued notice to the attorney general (AG) for Pakistan for addressing the arguments before the court on the next date of hearing, after obtaining instructions from those concerned, as to why any of the mentioned options may not be exercised by the court in these matters.
Earlier, during the hearing, the AG, NAB chairman and prosecutor general accountability told the court that no progress worth any mention has been made by all concerned in the matters mentioned in the order of January 3, 2012.
NAB Prosecutor General K K Agha submitted and read out two reports of January 9, 2012, wherein it has categorically been concluded that the NAB has decided not to proceed in the matters of Adnan Khawaja and Ahmad Riaz Sheikh despite clear directions issued by the apex court in this regard earlier on.
The court expressed dissatisfaction over the reports and observed that an attempt has been made through the said reports to screen, shield and protect all those in public offices who were involved in appointments/promotion of the said convicted persons.
On a court query the NAB prosecutor general confirmed the fact that the reports mentioned a clear conclusion about lack of criminal intent of all concerned and involved has been recorded without even holding a formal inquiry or investigation, which the court found to be strange and unusual.
The prosecutor general went on to submit that even in the matter of proceeding against Malik Muhammad Qayyum, former AG, a decision has been taken by NAB not to initiate or take any proceeding despite a clear direction having been issued by the SC.
During the hearing, the NAB chairman not only owned the mentioned reports but adopted a defiant attitude by stating before the court that the decision whether to proceed against any person under the National Accountability Ordinance 1999 or not, is a decision which falls within his exclusive jurisdiction and he has decided not to proceed against any person in the matters of Adnan Khawaja, Ahmad Riaz Sheikh and Malik Muhammad Qayyum.
The chairman submitted in most categorical terms that no inquiry or investigation is warranted in those matters
The court however, observed that the NAB chairman NAB stated so in contemptuous disregard of the fact that the apex court has already passed an order for taking proceedings in those matters.
The SC noted that the federal secretary law was absent from the court on the last date of hearing on account of being abroad and even today (Tuesday) he has failed to appear.
“We have been informed that he is unwell and is receiving medical treatment but nothing has been produced before us to substantiate the same,” the court ruled, adding that it appears that he prefers foreign sojourns upon his commitments before the highest court of the country.
Attorney General Maulvi Anwarul Haq submitted that there is no change in the situation since the last date of hearing and no step in furtherance of SC’s earlier directions has been taken by anybody during the interregnum.
The court recalled that in a recent interview with Geo TV, the co-chairperson of the major political party in the ruling coalition at the federal level, who also happens to be the President of Pakistan, has categorically stated that under his co-chairpersonship his political party has taken a political decision not to obey some part of the judgment handed down by the Supreme Court in the case of Dr Mobashir Hassan (supra). Even the Prime Minister of Pakistan and the federal minister for Law, Justice and Human Rights Division have been harping on the same theme for quite some time on different occasions through speeches made on the floors of the National Assembly and the Senate and also through print and electronic media.
“Their conduct in the matter also goes a long way in confirming what they have been proclaiming. Such an attitude, approach and conduct prima facie shows that the co-chairperson of the said political party, the prime minister and the federal minister for Law, Justice and Human Rights Division have allowed loyalty to a political party and its decisions to outweigh and outrun their loyalty to the State and their ‘inviolable obligation’ to obey the Constitution and all its commands,” the court ruled.
The court observed that that in our country governed by a Constitution political loyalty cannot be accepted as stronger than loyalty to the State and dictates of a political master or party cannot be allowed to be put up as a defence to failure to obey the Constitution.
The court gave six options in the case and forwarded to the Chief Justice of Pakistan to examine it by constituting a larger bench.
Option No 1: The prime minister is held in violation of his oath of office.
Option No 2: Proceedings may be initiated against the Chief Executive of the Federation i.e. the Prime Minister, the Federal Minister for Law, Justice and Human Rights Division and the Federal Secretary Law, Justice and Human Rights Division for committing contempt of this court.
Option No 3: The court may appoint a Commission to execute the relevant parts of the judgment passed and directions issued in the case of Dr Mobashir Hassan (supra).
Option No 4: Afford an opportunity of hearing to the affected.
Option No 5: Appropriate recommendations or directions may be made or issued by this court against NAB chairman.
Option No 6: The court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament to appropriately deal with the delinquent.
Other members of the bench comprised Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed.
Download Case Judgement: NRO Case Date:10.01.2012