A five-member bench headed by Justice Asif Saeed Khan Khosa directed the PM to submit a compliance report in National Reconciliation Ordinance (NRO) implementation case on July 25, the next date of hearing. Issuing a veiled threat that he might be forced out of office like his predecessor, the court ordered PM Raja to act forthwith – saying he has merely stepped into the shoes of Yousuf Raza Gilani so he too was bound to implement the relevant court directions ‘regardless of any advice tendered earlier or in future’.
The bench said in its order: “The prime minister/chief executive of the federation shall cause a report to be submitted before this court regarding compliance of the directions contained in paragraphs No. 177 and 178 of the NRO judgment, failing which this court may initiate any appropriate action under the constitution and the law.” On the last hearing the court expressed the hope that newly-elected PM would write to the Swiss to reopen cases against NRO beneficiaries, including President Zardari. Attorney General Irfan Qadir was therefore directed to obtain instructions from the prime minister regarding the implementation of NRO judgment and inform the court on July 12 (Thursday).
The attorney general (AG) informed the bench that he met with the PM on Wednesday and he instructed him to apprise the court that they took up the matter in a meeting of the cabinet, which “shall take a decision in accordance with the provisions of the constitution” after the law ministry gives its views on the issue.
Expressing concern over the reply, the judges told the AG “we would give our response after an hour” and left the courtroom. After the break they came back and Justice Khosa read out the order. It said that on March 8, 2012, the court had directed the former prime minister Yousuf Raza Gilani to write letter to Swiss authorities regardless of any advice as he, being the chief executive of the federation, admittedly had the final say in the executive domain. On his refusal to comply with the court directions, contempt proceedings were initiated.
Later, the court in its Mach 21 order held that “it was a straightforward case for implementation of the judgment of this court... It was not a matter where the respondent was left with any discretion... He cannot shift the blame or the responsibility to his advisers... The respondent had no option but to order the implementation of this court’s direction, particularly after the review of the federal government was dismissed”.
The court said “these directions apply with equal force to the incumbent prime minister as he has merely stepped into the shoes of his predecessor” and, thus, “he too is bound to implement the relevant directions of the court regardless of any advice tendered earlier or in future”. The court therefore directed Raja Pervaiz to act in the matter forthwith.
The bench also took judicial notice of Federal Information Minister Qamar Zaman Kaira’s press conference wherein he categorically declared that the constitution does not permit writing letter to Swiss authorities; therefore, the direction of court issued in that regard cannot be implemented. The bench noted that that different political functionaries of the federal government and others have also been harping on the same theme in the print and electronic media and even in public meetings for quite some time and refer article 248 of the constitution in this regard.
Justice Khosa reading the order said that the record shows that during the January 10, 2012 proceedings of this case, the court had enlisted different options available with it and observed that although nobody has so far raised the issue pertaining to the protections contemplated by article 248 yet if anybody, likely to be affected by exercise of these options, wishes to be heard on that question may appear before this court on the next hearing and argue so that he may not complain in future.
He said, on January 16, the then attorney general Maulvi Anwarul Haq informed the court that he had communicated the court order to all the relevant persons and authorities, including the president and prime minister, but he had not received any instruction from any of them. In that scenario the contempt proceedings were initiated, conducted and concluded against Gilani, culminating in his conviction, sentence, disqualification as MNA and removal from the PM office, he added.
The court noted that during the preliminary hearing of contempt case former prime minister and his counsel Ch Aitzaz Ahsan briefly addressed the court. The ex-PM had maintained inter alia that his inaction to write to Swiss authorities was due to the immunity enjoyed by President Zardari under article 248 of the constitution.
The court noted that Aitzaz Ahsan had also expressly submitted at the Bar that there was no need to focus on article 248 as to whether it did or did not provide immunity to the president. In NRO case and Gilani contempt matter it was repeatedly argued that the court must not focus on whether the president had complete immunity or not under article 248.
Ch Aitzaz Ahsan during his final arguments had categorically maintained that the immunity being referred to in defence of the then prime minister was that enjoyed by a Head of the State under the customary international law and not the one contemplated by article 248 of the constitution.
The order said that this court had observed then that immunity under the customary international law was relevant to, and could be invoked by the person concerned before a foreign court and was, thus, irrelevant to the contempt proceedings against Gilani. That judgment of this court has already attained finality as it was never challenged through any appeal or review.
The bench, due to the general adjournment of Shaiq Usmani, counsel for the National Accountability Bureau, deferred the cases pertaining to Adnan A Khawaja, Ahmad Riaz Sheikh and Malik Muhammad Qayyum.
Do as told by 25th, court orders Raja