As the executive-judiciary tension mounts, Chief Justice of Pakistan Iftikhar Mohammad Chaudhry on Saturday exhibited leniency by constituting a five-judge bench headed by Justice Asif Saeed Khosa to hear the review petition filed by the government against the court verdict in the NRO implementation case issued on July 12.
The five-member bench also includes Justice Sarmad Jalal Usmani, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed.
In its review appeal, the government has once again challenged the main judgment in NRO case which was passed by a 17-member bench of the court in 2009. The government contended that this could not be implemented by the seven-member bench as it had no jurisdiction or authority to vary or alter the judgment passed by the larger bench.
Legal experts view the petition as a time-gaining tactic by the government as no solid and concrete legal flaw has been mentioned by the attorney general in the petition against the court order, rather the original verdict of 2009 has been challenged which actually had not been contested by the chief attorney as the NRO was discriminatory law against the fundamental rights of the people enshrined in the constitution.
The newly-formed bench is almost the same bench that on July 12 directed Prime Minister Raja Pervez Ashraf to write a letter to Swiss authorities to reopen graft cases in Switzerland. The bench would hold its first hearing on Wednesday (August 15) to decide whether the review petition was admissible against its order passed on July 12. The government had filed a review petition against the July 12 order of the Supreme Court in the NRO implementation case. The petition was filed by Attorney General Irfan Qadir.
The NRO case has reached its finality and no review can now be filed against the court order of 2009, wherein the court termed the NRO void ab initio and asked the executive to reopen all cases pending against more than 8,000 accused who had benefited from the black law introduced by General (r) Pervez Musharraf through an ordinance in October 2007.
Under the ordinance, all cases pending since 1985 against politicians and bureaucrats had been withdrawn, including cases against the top PPP leadership.
However, the government has yet not implemented the court order despite a lapse of three years. The government through a civil review plea on Wednesday had requested the Supreme Court to recall its July 12 order, in which it had directed the new prime minister to implement its certain orders in NRO judgment. The plea was moved by Attorney General for Pakistan Irfan Qadir under Article 188 read with Orders XXVI of the Supreme Court Rules 1980. The plea contended that the five-member bench’s order of July 12 was not in accordance with law, rules and constitution and without jurisdiction and coram non justice which required reconsideration/rehearing of the case for purpose of rendering complete justice.
It said the main judgment in the NRO case was rendered by the 17-member bench and this could not be implemented by a seven-member bench as it had no jurisdiction or authority to vary or alter the judgment passed by the larger bench. “Thus, the orders of the seven member bench dated 12/07/2012 directing new Prime Minister Raja Pervez Ashraf to comply with the direction contained in para 178 of the NRO judgment and report compliance are violative of the said judgment as being unlawful and without jurisdiction,” added the petitioner. It further said that keeping in view the property, rules of court and long standing practice of the court, the smaller benches consisting of five members could not modify or alter the main judgment delivered by the full court at that time. It said orders referred in the plea were violative of the Article 248(2). The said order was tantamount to a clear violation of Article 248(2) as the prime minister by virtue of his oath was bound to preserve and protect the constitution and was under a constitutional obligation to disregard any order of the court which negated the constitution or law. Referring to revival of Pakistan’s status as damaged party, it said that there was no question of its revival as the Supreme Court’s own jurisdiction was limited to the territories of Pakistan. “If the Supreme Court itself is not in a position to seek revival of Pakistan’s status as damaged party then it also has no mandate to force the prime minister to do the same. In fact after conclusion of Swiss investigation, Pakistan has no role to play in these matters,” it stressed. It further said that there was no occasion for the seven-member bench to have called the former PM thrice in court during hearing of the case and that too was an utter disregard of the constitution and law. “Last but not least, the prime minister cannot be asked by means of the aforesaid orders for the implementation of an un-implementable direction given by the Supreme of Pakistan in NRO case,” it added. It said since the new PM had not received any advice from his cabinet to implement para 178 of the said judgment, he was, therefore, not obliged under the constitution and the rules of business. In the NRO case, over 8,000 persons were condemned unheard and it was the only case of its kind the judicial history that merits of thousand of the cases were not gone into, it added.
CJP forms bench to hear NRO verdict review plea
