ISLAMABAD –The federal government on Tuesday filed a review petition against the July 12 order of the Supreme Court in the National Reconciliation Ordinance (NRO) implementation case, pleading the court to set aside its order, in which the prime minister was directed to write letter to Swiss authorities regarding the reopening of cases against President Asif Ali Zardari.
According to the review petition, the prime minister had not received any advice to write the letter, adding that he was not bound to write the letter. It further said the June 27 and July 12 orders in the case were unlawful and if the letter had been written, it would be in violation of the Article 248 of Constitution.
Another argument made in the review petition was if the court itself could not write the letter to Swiss authorities, why was it expecting the prime minister to do so. “The Prime Minister of Pakistan by virtue of his oath is bound to preserve and protect the Constitution and he is under a constitutional obligation to disregard any order of the court, which negates the Constitution or law,” the government argued in the petition.
The petition maintained that the main judgment in the NRO case was recorded by a 17-member bench and this could not be implemented by a seven-member bench. It further added that former prime minister Yousuf Raza Gilani was convicted by following option No 2, specified by the apex court.
“Therefore, option no 2 has exhausted and could not apply as it had already been exercised against the then prime minister Syed Yousuf Raza Gilani.” It maintained that the issue of implementing para 178 (to write a letter to Swiss authorities) no longer arose in respect of the incumbent Prime Minister Raja Pervaiz Ashraf as the court had already punished one premier for contempt over not obeying the court order.The petition further stated the prime minster was bound to act upon the advice given by the federal cabinet and he had not received any such advice to implement para 178 of the judgment. It added that in the NRO case over 8,000 persons were not heard and thus this was the only case of its kind in the judicial history of the planet.
The petition argued that the legal errors in the apex court order of July 12 required to be re-visited and pleaded the court to set aside or recall this order.
The Supreme Court, while hearing the NRO implementation case on July 12, had ordered Prime Minister Raja Pervaiz Ashraf to submit a compliance report by July 25.
Later on July 25, when the compliance report was not submitted, the Supreme Court set August 8 deadline for Prime Minister Ashraf to implement its order by writing the letter to Swiss authorities to reopen graft cases against President Zardari. However, in review petition the government has requested the court to annul its earlier order.
Meanwhile, the Federation on Wednesday filed a civil review petition against the Supreme Court judgment in Contempt of Court Act 2012 case and prayed the short order be reviewed and constitutional petitions, challenging the legislation, be dismissed.
A five-member bench - headed by Chief Justice Iftikhar Muhammad Chaudhry - on August 3 had declared the CoC Act 2012 unconstitutional, void and non est, as it revived the Contempt of Court Ordinance 2003 from 12-07-2012, the day when CoC Act 2012 was enacted in the country.
Abdul Shakoor Paracha has filed the civil review petition on behalf of Federation under Article 188 of the Constitution read with Order XXVI Rule 1 of Supreme Court Rules 1980, praying that the mistakes and errors apparent on the face of the record.
It states that the Supreme Court could not have proceeded to decide the constitutional petitions on merits without disposing of the objections of the Federation regarding its maintainability under Article 184(3) of the Constitution. It said only fundamental rights falling within the parameters of the Constitution could be enforced.
The constitutionality of the impugned Act could have been adjudged in appropriate contempt proceedings before the High Courts. The Contempt of Court Act 1976 and CoC Ordinance 2003 were never declared unconstitutional, says the petition. It has also been held in different cases that the courts do not indulge in academic exercise.
The petitions were not maintainable as the same were not based upon any grievance or injury suffered by respondents. The question that whether Article 2-A has an over-ridding effect upon the constitution or it is to be read in the constitution. The petition says that well established rule of interpretation is that constitution is to be read as a whole in order to ascertain the true intent and meaning of its various provisions. But in the verdict the constitutional provisions were read in isolation.
The Federation has objected to the para 16 (i) to (xxiii) of the judgment in COCA 2012, saying the findings rendered by the Supreme Court in these paras are unconstitutional and void ab intio and suffer from errors apparent in law and Constitution.