The Supreme Court on Wednesday denied the attorney general’s request to form a larger bench to hear the government’s review petition in the National Reconciliation Ordinance (NRO) implementation case, as the AG told the court that the PM was not answerable to any court for performance of his functions.
Attorney General Irfan Qadir on Wednesday said the Supreme Court’s decision to strike down the contentious Contempt of Court Act 2012 and the government’s review petition in the NRO implementation case were interconnected and a larger bench should be formed to hear the cases. Heading the five-member bench, Justice Asif Saeed Khosa snubbed the attorney general’s request and said the hearing of the review petition did not have anything to do with the NRO implementation case. The attorney general argued over the composition of the bench and said it could not be changed to hear review matters.
The AG also requested the court to reschedule the hearing of the review petition after Eid, as the judge who was replaced in the bench would be available after Eid. However, this request was also denied by the bench.
While presenting his arguments before the bench headed by Justice Asif Saeed Khosa, the AG said that a few actions did not come under the domain of the prime minister and writing a letter to the Swiss authorities was one such action. He argued that the court should not give directives to PM Ashraf which he could not comply with. Qadir said the prime minister was not answerable to any court for the performance of his functions that were protected by virtue of Article 248(1) of the constitution. He said, “The court could not issue direction to the PM in matters which fell in the domain of his functions in view of clear cut provisions or clear cut words of Article 248(1). As the PM is not answerable to any court in the exercise of his functions, the court’s issuance of any direction becomes meaningless.”
The AG said there were innumerable occasions but it was unique in the last 65 years history of the country that a PM had been made answerable in the NRO implementation case. Pleading the court to revisit its judgment in the NRO case, the AG cited chief justice’s restoration and Tikka Iqbal’s cases which were revisited by it. He said in view of changed scenario and established facts, the NRO judgment, especially para 178 was not implementable. The AG said the PM functioned under Rules of Business and it was his discretion how he formed an opinion over a judicial order.
“Neither can the court interfere into the domain of the chief executive of the country nor issue any direction as the constitution has given him discretion and protection for his actions,” he added. Justice Asif Saeed Khosa observed that the problem started when everyone formed his own opinion. To Justice Sarmad Jalal Osmani’s question,
he replied that for the last three years, the court was not properly assisted in the issue.
Justice Khosa asked Qadir to suggest any solution as the NRO decision had attained finality and the review plea also stood dismissed. Qadir said the court could take up the issue as an important one, as it was related to the dignity of the court. He suggested that the court could revisit it to get out of the stalemate and that no further embarrassment was caused to anyone as it was neither an issue of ego for the government nor for the court.
The bench disagreed with his arguments and remarked that such constitutional provision did not make anyone above the law. Justice Ejaz Afzal Khan asked him that if the court interpreted a constitutional provision and laid down a judgment, which authority would judge it? Justice Khosa said if the PM decided not to implement the court’s orders, what would be the solution?
The AG replied that former PM Gilani had formed a view and not violated the court’s orders. Justice Khosa told him that there were six judgments over the issue and it was not a new thing. Qadir also said that it was the case of first impression as the issue of PM’s performance of functions of his office had never been raised in the last 65 years of the country. He said the very constitutional provision also kept a check on the court as well from turning it into a totalitarian.
“Gilani appeared thrice before the court but he was not required to do so. If I were the prime minister, I would have never appeared before the court,” he added, urging the bench to get out of PLDs (All Pakistan Legal Decisions). Justice Khosa told him that it was the requirement of rules and laws that respondent in contempt had to appear before the court. The AG referring to former PM’s contempt case said if a judgment remained in the field, it would entail trouble.
Justice Khosa replied that times had changed and now nothing would go wrong and be settled through solutions. He said there was no question of tussle. Irfan said that were certain situations in which both sides were on the right and pleaded that the new PM should not be treated like his predecessor. Justice Khosa assured him that all citizens were equal before the court. The attorney general said the atmosphere of fear should be removed and the Ministry of Law through its letter on April 23 this year had termed the actions of former attorney general Malik Qayyum legal. Justice Khosa told him that they were not asking the PM to write a letter to the Swiss authorities but they had directed for renewal of Pakistan’s claims as damaged civil party.
