6 options, 6 days

Time is short and the choices are limited. The five-member Supreme Court bench on Tuesday framed a charge-sheet against the prime minister and left the matter for the larger bench to finally take a decision and, exercising judicial restraint, gave the government a chance to reconsider its position on the implementation of the apex court’s decision on the National Reconciliation Ordinance (NRO) by January 16.
What set the alarm bells ringing in the corridors of power was the five-member bench’s observation that the prime minister had violated his oath and that he, prima facie, was not an honest man who met the constitutional condition for being elected as a member of parliament. Announcing its order on the government’s failure to implement the NRO verdict, the five-judge special bench headed by Justice Asif Saeed Khan Khosa held that the persistent, obstinate and contumacious resistance, failure and refusal of the prime minister to completely obey and execute the directions issued in the NRO case reflected 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 held that the federal government and the National Accountability Bureau (NAB) were not serious in implementing the NRO verdict at all and were only interested in delaying and prolonging the matter on one pretext or the other.The court pointed out that it could take six options against the willful disobedience of the government in implementing some parts of the NRO verdict and consequent directions. In its first option, the court held that failure to implement the NRO verdict was a case of brazen and blatant failure or refusal of the federal government and the buck stopped at the office of the chief executive of the federation, the prime minister. The court held that the prime minister had violated his oath by not executing and implementing the NRO verdict. The court said the prime minister in his oath had made an unambiguous commitment with God not only to conduct himself completely in accord with the commands and requirements of the constitution, including those of Articles 2A, 37(d), 189 and 190 thereof, also totally in sync with the requirements and teachings of the Holy Quran, but he violated his oath by not obeying the court orders.
It said according to clause (f) of Article 62(1) of the constitution, “A person shall not be qualified to be elected or chosen as a member of parliament unless he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law.”
The court noted that it had the option to hand down a declaration in terms of clause (f) of Article 62(1) of the constitution which finding or declaration may have the effect of a permanent clog on the prime minister’s qualification for election to, or being chosen as, a member of parliament or a provincial assembly.
The court noted that somewhat similar oaths had also been taken by the co-chairman of the Pakistan People’s Party (PPP) before entering the office of the president of Pakistan and by the federal law minister before entering the office of a federal minister and apparent breaches of their oaths may also entail the same consequences.
In its second option, the court held that it may initiate proceedings against the prime minister, law minister, and the law secretary for committing contempt of court by persistently, obstinately and contumaciously resisting, failing or refusing to implement or execute in full the directions of the court in the NRO verdict. “It may not be lost sight of that, apart from the other consequences, by virtue of the provisions of clauses (g) and (h) of Article 63(1) read with Article 113 of the constitution a possible conviction on such a charge may entail a disqualification from being elected or chosen as, and from being, a member of parliament or a provincial assembly for at least a period of five years,” the court held.
In its third option, the court held that in exercise of its powers under Article 187 of the constitution read with Rules 1 and 2 of Order XXXII of the Supreme Court Rules, 1980 and all other enabling provisions, it may appoint a commission to execute the relevant parts of the NRO judgement and consequent directions.
The fourth option states that although in the present proceedings nobody had so far raised the issue pertaining to the protections contemplated by Article 248 of the constitution, yet if anybody was likely to be affected by exercise of these options by the court and wished to be heard on that question, an opportunity may be afforded to them in that respect before exercise of any of these options.
The fifth option states that it is a statutory duty of the NAB chairman under the National Accountability Ordinance of 1999 to proceed against any person prima facie involved in misuse of authority while holding a public office. It said on January 3, the court had directed the NAB chairman to attend to the matters of appointment of Adnan Khawaja as Managing Director of the Oil and Gas Development Company Limited (OGDCL) against merit and appointment/promotion of Ahmed Riaz Sheikh as additional director of the Federal Investigation Agency (FIA) at a time when both of them were convicted persons and to proceed against all those who were responsible for such appointments/promotions.
The court said the chairman had also failed so far to initiate any action against former attorney general Malik Muhammad Qayyum. It said the chairman had not only failed to advance any satisfactory explanation for his inaction but had also manifested defiance towards the court by categorically refusing to carry out the court’s directions. The court noted that such inaction on his part in derogation of his statutory duty prima facie amounted to misconduct attracting the last part of Section 6(b)(i) of the National Accountability Ordinance of 1999 dealing with removal of the chairman from office. The court noted further that the chairman had attempted to screen, shield and protect the relevant persons from criminal charges, which may attract consequences in some criminal and other laws. In these circumstances, appropriate recommendations or directions may be made or issued by the court in such regards. The sixth option states that the constitutional balance vis-à-vis the trichotomy and separation of powers between the legislature, the judiciary and the executive is very delicately poised and if in a given situation the executive is bent upon defying a final judicial verdict and is ready to go to any limits in such defiance, then instead of insisting upon the executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself, the court may exercise judicial restraint and leave the matter to the better judgement of the people of the country or their representatives in parliament to appropriately deal with the delinquent. “After all, the ultimate ownership of the constitution and of its organs, institutions, mechanisms and processes rests with the people of the country and there may be situations where the people themselves may be better suited to force a recalcitrant to obey the constitution,” the court noted.
The court expressed dismay over the attorney general, NAB chairman and NAB prosecutor general for showing no progress in complying with the court’s order in the NRO implementation case. The court also rejected the reports submitted by the NAB prosecutor general in which he categorically concluded that the bureau had decided not to proceed in the matters of Adnan Khawaja and Ahmad Riaz Sheikh. The court termed the reports utterly unsatisfactory and held that an attempt had been made through them to screen, shield and protect all those in public offices who were involved in appointments/promotions of the convicted persons. The court stated that the accountability prosecutor general had confirmed the fact that in the reports a clear conclusion about lack of criminal intent of all concerned and involved had been recorded without even holding a formal enquiry or investigation, which the court found to be “strange and unusual”. The court said the NAB prosecutor general had gone on to submit that even in the matter of proceedings against Qayyum, a decision had been taken by the accountability watchdog not to initiate or take any proceedings despite a clear direction having been issued by the court in that respect. “The NAB chairman has not only owned the reports submitted by the prosecutor general but has adopted a defiant attitude by stating 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 court said.
The court said further that the chairman had also stated in most categorical terms that no enquiry or investigation was warranted in those matters and he had stated so in contemptuous disregard of the fact that the court had already passed an order for taking proceedings in those matters. “We have particularly noticed the defiant posture and position adopted by the chairman and have been struck by his willful disobedience to the earlier directions issued by the court. It appears that instead of obeying the directions, he has decided to take the court head-on, which attitude we find to be contumacious, to say the least,” the court said in its order. It said despite clear orders, the law secretary did not turn up on January 3 on account of being abroad and even today he did not appear and the court was informed that he was unwell and was receiving medical treatment, but nothing had been produced before the court to substantiate the claim. “It appears that he prefers foreign sojourns over his commitments before the highest court of the country,” the court noted.
Attorney General Maulvi Anwarul Haq stated that there was no change in the situation since the last date of hearing and no step in furtherance of the court’s earlier directions had been taken by anybody during the interregnum. Ahsan Raja, former additional interior secretary tried to convince the court that he had no malicious intent in the matter of promotion of Ahmad Riaz Sheikh.
The court noted it appeared that all concerned had consciously decided to defy and disobey the court. It said it had already shown a lot of grace and magnanimity in the matter and had demonstrated a lot of patience and restraint in this regard over the last two years or so, but in the present dismal and most unfortunate state of affairs, the court was left with no other option but to take appropriate actions in order to uphold and maintain its dignity and to salvage and restore the delicately poised constitutional balance in accord with the norms of constitutional democracy. “We are conscious that the actions we propose to take are quite unpleasant but maintaining the necessary constitutional poise and balance is a part of our duties, particularly when we have made an oath before Allah Almighty to ‘preserve, protect and defend the constitution’ and to ‘in all circumstances to do right to all manner of people, according to law, without fear or favour, affection or ill-will’,” The court said.
“When Article 189 of the constitution gives the decisions of the Supreme Court ‘binding’ effect and when Article 190 of the constitution commands in no uncertain terms that ‘All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court’, the constitution does not envision an executive professing only ‘respect’ towards the decisions of the Supreme Court but at the same time derisively or disdainfully paying little or no heed to implementation or execution of such decisions,” the court said. “Obedience to the command of a court, and that too of the apex court of the country, is not a game of chess or a game of hide and seek. It is, of course, a serious business and governance of the state and maintaining the constitutional balance and equilibrium cannot be allowed to be held hostage to political tomfoolery or shenanigans. Article 5 of the constitution declares in most unambiguous terms that loyalty to the state is the basic duty of every citizen and obedience to the constitution and law is the inviolable obligation of every citizen,” the court noted.
The court pointed out that in a recent interview the president had categorically stated that under his co-chairmanship his political party had taken a political decision not to obey some parts of the judgement handed down by the court in the NRO case.
The court said even the prime minister and the law minister had been harping on the same theme for quite some time on various occasions through speeches made on the floors of the National Assembly and Senate, and also through print and electronic media.
Their conduct in the matter also went a long way in confirming what they had been proclaiming, the order said, adding that such an attitude, approach and conduct prima facie shows that the president, the prime minister and the law minister had 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.
“We may unhesitatingly observe 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 order said. “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy,” it said further.
“We, the judges of the Supreme Court, have made an oath before Allah Almighty to ‘preserve, protect and defend the constitution of Pakistan’ and, thus, it is our bounden duty to take appropriate action whenever we find that the constitution is not being obeyed or its express commands are, wittingly or otherwise, being disregarded. Let nobody forget that in the not-too-distant past we stuck to our commitment to the constitution and constitutionalism and were not shy of giving personal sacrifices for fulfillment of that commitment,” the order said.
Meanwhile, the court issued a notice to the attorney general directing him to address arguments before the court on next date of hearing, after obtaining instructions from those concerned as to why any of the six options may not be exercised by the court in these matters.
The bench requested the chief justice to consider the desirability of hearing of these matters on the next date of hearing by a larger bench of the court, on account of constitutional importance of these matters and adjourned the case for January 16, directing the attorney general, law secretary, NAB chairman and NAB prosecutor general to ensure their appearance before the court in person.