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Sunday, December 11, 2011
Supreme Court releases detailed judgement on NRO review petitionStaff Report
LAHORE: A 17-member full bench of the Supreme Court of Pakistan on Thursday night released detailed judgement on the National Reconciliation Ordinance (NRO) review petition and directed federal and provincial governments to provide all assistance to the courts in prosecution of the culprits, who benefited from this law.
Former President of Pakistan, General Pervez Musharraf issued the NRO in 2007. It granted amnesty to politicians, political workers and bureaucrats who were accused of corruption, embezzlement, money laundering, murder and terrorism. It was declared unconstitutional by the Supreme Court in 2009.
The Supreme Court on December 16, 2009, had passed the judgement that declared the NRO as unconstitutional and a ‘black law’.
The government had filed a review petition against this order, which was also dismissed on November 26, 2011 by a short order. Now the apex court had given its detailed verdict.
Justice Tassadaq Hussain Jilani drafted the 31-page detailed judgement, reviving all corruption cases and cancellation of all benefits accrued under the ‘black law’.
The court said in its judgement that the federal counsel was heard but he failed to give arguments to build the case for a review of certain aspects of SC’s December 16, 2009 decision on the NRO and parliament also did not validate it.
All the concerned courts including the trial, appellate and review courts, have been ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO. The federal government, all the provincial governments and all relevant and competent authorities including the NAB prosecutor general, the special prosecutors in various accountability courts, the prosecutors generals in the four provinces and other officers or officials involved in the prosecution of criminal offenders have been directed to offer every possible assistance required by the competent courts in the said connection.
Similarly, all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law.
Now any judgement, conviction or sentence recorded under section 31-A of the NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect.
The bench in its order wrote, the federation had initially challenged the short order of December 16, 2009 but when the detailed reasons were released an application was filed with additional grounds in support of the petition for review. The federal government’s counsel, Babar Awan, requested that although the Federation of Pakistan had not defended the NRO before this court the observations made in Paras 44 and 45 of the detailed judgement (under review) with reference to Benazir Bhutto’s book ‘Reconciliation: Islam, Democracy and the West’ that any benefit was drawn by the author and that NRO 2007 was not promulgated for the object of national reconciliation but for the benefit of certain individuals is incorrect; that the only benefit which she derived was restoration of democracy and that this finding is an error apparent in the face of record. Initially a statement was filed to the effect that the federation did not contest the petition against NRO and rather filed a conceding statement. The counsel submitted that if this court intended to go beyond the request made in review petition, it would have been proper and just to grant reasonable time to the federation to reply and contest. In the written reply, the counsel had specifically made a prayer “if however this honourable court wishes to rule upon wider issues other than those raised in the petition in that case, the federation requests that petitions be filed precisely stipulating these issues whereupon the federation will seeks instructions on such new petitions.”
The bench wrote that though parliament did not approve the NRO as an Act nor defended the law, rather it did not oppose revival of criminal cases; yet this petition for review was filed on behalf of the federation.
The bench remarked that despite repeated queries of the court, the learned counsel did not elaborate as to how the federation was an ‘aggrieved person’ or disclose any other ‘sufficient cause’ to fall within the parameters of the law regulating the review jurisdiction.
The court observed that despite the fact that earlier on Masood Chishti filed application to seek permission to argue the case who was superseded by Kamal Azfar and even he withdrew as he was appointed adviser to the prime minister and then Babar Awan was allowed to advance arguments. The bench observed, “We permitted him to argue so that if we find that a case for review is made, we will allow the application seeking permission to argue, which could only have been argued under the Supreme Court Rules by the counsel who appeared for the federation in the main case. Having considered all the grounds urged before this court, we are of the view that no case for review is made out. The application seeking permission to argue by the counsel who admittedly did not appear for federation in the main case is violative of Rule Order XXVI Rule 6 of the Supreme Court Rules and therefore not tenable and the application was disposed of accordingly.” The bench in its short order had already held that all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect. The bench in its verdict said, “All the cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this court and any other such cases/proceedings which may not have been brought to the notice of this court, shall stand revived and relegated to the status of pre-October 5, 2007 position. The bench in its December 16, 2009 order had already held: (i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution; (ii) that as a consequence of the said declaration, all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect;
(iii) that all cases in which the accused persons were either discharged or acquitted under Section 2 of the NRO or where proceedings pending against the holders of public office had got terminated in view of Section 7 thereof, a list of which cases has been furnished to this court and any other such cases/proceedings which may not have been brought to the notice of this court, shall stand revived and relegated to the status of pre-5th of October, 2007 position; (iv) that all the concerned courts including the trial, the appellate and the revisional courts are ordered to summon the persons accused in such cases and then to proceed in the respective matters in accordance with law from the stage from where such proceedings had been brought to an end in pursuance of the above provisions of the NRO; (v) that the federal government, all the provincial governments and all relevant and competent authorities including the prosecutor general of NAB, the special prosecutors in various accountability courts, the prosecutors general in the four provinces and other officers or officials involved in the prosecution of criminal offenders are directed to offer every possible assistance required by the competent courts in the said connection; (vi) that similarly all cases which were under investigation or pending enquiries and which had either been withdrawn or where the investigations or enquiries had been terminated on account of the NRO shall also stand revived and the relevant and competent authorities shall proceed in the said matters in accordance with law; (vii) that it may be clarified that any judgement, conviction or sentence recorded under section 31-A of the NAB Ordinance shall hold the field subject to law and since the NRO stands declared as void ab initio, therefore, any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect;. The bench also held that any benefit derived by any person in pursuance of Section 6 thereof is also declared never to have legally accrued to any such person and consequently of no legal effect. (viii) that since in view of the provisions of Article 100(3) of the Constitution, the Attorney General for Pakistan could not have suffered any act not assigned to him by the Federal Government or not authorized by the said Government and since no order or authority had been shown to us under which the then learned Attorney General namely Malik Muhammad Qayyum had been authorized to address communications to various authorities/courts in foreign countries including Switzerland, therefore, such communications addressed by him withdrawing the requests for Mutual Legal Assistance or abandoning the status of a Civil Party in such proceedings abroad or which had culminated in the termination of proceedings before the competent fora in Switzerland or other countries or in abandonment of the claim of the Government of Pakistan to huge amounts of allegedly laundered moneys, are declared to be unauthorized, unconstitutional and illegal acts of the said Malik Muhammad Qayyum; (ix) that since the NRO stands declared void ab initio, therefore, any actions taken or suffered under the said law are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Government of Pakistan for Mutual Legal Assistance; surrendering the status of Civil Party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by us to be unauthorized and illegal communications and consequently of no legal effect, therefore, it is declared that the initial requests for Mutual Legal Assistance; securing the status of Civil Party and the claims lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn. Therefore the federal government and other concerned authorities are ordered to take immediate steps to seek revival of the said requests, claims and status; (x) that in view of the above noticed conduct of Malik Muhammad Qayyum, the then learned attorney general for Pakistan in addressing unauthorised communications which had resulted in unlawful abandonment of claims of the Government of Pakistan, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland, the federal government and all other competent authorities are directed to proceed against the said Malik Muhammad Qayyum in accordance with law in the said connection; (xi) that we place on record our displeasure about the conduct and lack of proper and honest assistance and cooperation on the part of the Chairman of the NAB, the Prosecutor General of the NAB and of the Additional Prosecutor General of the NAB, namely, Abdul Baseer Qureshi in this case. Consequently, it is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation. It is therefore, suggested that the federal government may make fresh appointments against the said posts of persons possessing high degree of competence and impeccable integrity in terms of Section 6 of the NAB Ordinance as also in terms of the observations of this Court made in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607). However, till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law.”
Courtesy www.dailytimes.com.pk