SC corrects historic wrong

[niazikhan2]

NRO declared void ab initio; govt asked to seek revival of Swiss cases; cases against all beneficiaries revived in Pakistan; action against former AG Malik Qayyum to be taken for unauthorised communication with foreign courts; replacement of NAB chairman, prosecutor general, deputy ordered; CJ’s monitoring cells to oversee judgment implementation; CJ says even parliament can’t change basic structure of constitution

ISLAMABAD: The Supreme Court (SC) on Wednesday threw the controversial National Reconciliation Ordinance (NRO) into the dustbin of history for being ultra vires of the Constitution because it ensured legal cover to corruption by the privileged class.

In its landmark and the expected judgment, a 17-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry declared the NRO an instrument void ab initio, being ultra vires and violative of various constitutional provisions including Articles 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution.

Former federal minister Dr Mubashar Hassan, former bureaucrat Roedad Khan, Qazi Hussain Ahmed and Chief Minister Punjab Mian Shahbaz Sharif had challenged the NRO before the Supreme Court in 2007.

“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 court ruled in its short order read out by Chief Justice Iftikhar Muhammad Chaudhry.

The larger bench of the apex court ruled 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.

The Court directed the concerned courts including the trial, the appellate and the review courts 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 Court directed 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 to offer every possible assistance required by the competent courts in the said connection.

The SC ruled that 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.

The short order clarified that any judgment, 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.

“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 authorised by the said government and since no orderor authority had been shown to us under which the then learned attorney general namely Malik Muhammad Qayyum had been authorised 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 unauthorised, unconstitutional and illegal acts of the said Malik Muhammad Qayyum,” the court ruled.

The short order also ruled 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.

The court ordered the Federal Government and other concerned authorities to take immediate steps to seek revival of the said requests, claims and status. The court further ruled 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.

The court expressed 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.

“It is not possible for us to trust them with proper and diligent pursuit of the cases falling within their respective spheres of operation,” said the short order. The court suggested that the Federal Government may make fresh appointments against the said posts of persons possessing high degrees 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 Vs Federation of Pakistan (PLD 2001 SC 607).

The Court however, ruled that till such fresh appointments are so made, the present incumbents may continue to discharge their obligations strictly in accordance with law. They shall, however, transmit periodical reports of the actions taken by them to the Monitoring Cell of this Court which is being established through the succeeding parts of this judgment.

The larger bench also ruled that a Monitoring Cell shall be established in the Supreme Court of Pakistan comprising of the chief justice of Pakistan or a judge of the Supreme Court to be nominated by him to monitor the progress and the proceedings in the noticed and other cases under the NAB Ordinance.

“Likewise similar monitoring cells shall be set up in the high courts of all the provinces comprising chief justice of the respective province or judges of the concerned high courts to be nominated by them to monitor the progress and the proceedings in cases in which the accused persons had been acquitted or discharged under Section 2 of the NRO,” the ruling added.

The court directed secretary Law Division to take immediate steps to increase the number of accountability courts to ensure expeditious disposal of cases. Earlier, during hearing of the petitions against the NRO, the chief justice said even parliament has no right to change the basic structure of the constitution.

“In accordance to oath, we are committed to safeguard the constitution,” he remarked. The chief justice warned the NAB Chairman Naveed Ahsan about stern action if something false was detected in the list. He ordered the NAB chairman to sign the list if it was correct. On the court’s order, he signed the list.

The court also summoned the summary file of directives issued for the elimination of Swiss cases. On the excuse of acting attorney general, the court summoned principal secretary and secretary law. Secretary law while presenting the file in the court said attorney general wrote the letter for withdrawal of cases on the directives of Asif Zardari’s lawyer Farooq H Naek that was opposed by the then Law Minister Zahid Hamid.

The court also expressed displeasure on acting attorney general and said he hid the truth. The principal secretary of president Salman Farooqi informed the court that cases files are not present in the Presidency but are in the president’ camp office in Rawalpindi.

Mian Allah Nawaz, amicus curie (friend of court) in his arguments termed the NRO as filthy law and said anything, which is beneficial for some individuals, is illegal. Shaiq Usmani, another amicus curie submitted before the court that there was no legal ground of giving amenity under NRO. The president could only issue the ordinance, which will convert into law by the assembly.

During the course of the proceedings, the chief justice said how the assembly could declare corruption as legal. Other members of the bench included Justice Javed Iqbal, Justice Sardar Muhammad Raza Khan, Justice Khalil-ur-Rehman Ramday, Justice Mian Shakirullah Jan, Justice Tassadduq Hussain Jillani, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Muhammad Sair Ali, Justice Mahmood Akhtar Shahid Siddiqui, Justice S Khawja, Justice Anwar Zaheer Jamali, Justice Khilji Arif Hussain, Justice Rahmat Husain Jafferi, Justice Tariq Parvez and Justice Ghulam Rabbani.