NRO case: Additional AG may represent govt
ISLAMABAD, April 12: The Supreme Court found it disturbing on Tuesday that the government itself was trying to delay the hearing of its petition for a review of a verdict which held the National Reconciliation Ordinance (NRO) illegal. The case was put off till Thursday.
The adjournment came with a warning that the court was giving another opportunity to Additional Attorney General K.K. Agha to seek instructions from the government to let him argue before the 17-judge court, instead of insisting on changing its counsel.
Mr Agha had assisted the court from the government`s side on the main petitions against the NRO.
On Monday the full court had given the government a concession by putting off the hearing for Tuesday, though it refused to accept a request to appoint Dr Khalid Ranjha as the lead counsel to plead the review petition in place of Kamal Azfar.
The NRO case has always put the government in a tight corner since its hearing entails simultaneous overseeing of the implementation of the judgment that involves communicating with Swiss authorities for reopening money laundering cases against President Asif Ali Zardari who the government says enjoys immunity from prosecution.
At the outset of Tuesday`s proceedings, senior counsel Kamal Azfar, who was the lead counsel of the government in the NRO case, said he had not received any instructions from the federal government regarding the instant hearing and that he had failed to understand why the federation was not willing to proceed with the case.
Mr Agha said the government had again moved an application which, though not yet placed before the court, had sought permission to change its counsel by appointing Dr Ranjha in the interest of a fair trial.
“This is a unique application in which the federation is saying it will not proceed if its whims are not accepted,” Justice Jawwad S. Khwaja, a member of the bench, said. “It is disturbing that the federation, which is running the affairs of the government, is asking us again that it would not let the case proceed if Dr Khalid Ranjha is not allowed to substitute Kamal Azfar. Even if we allow Dr Ranjha, he might come with some compulsion again.”
However, Chief Justice Iftikhar Mohammad Chaudhry came up with a solution by suggesting to Mr Agha that instead of asking for allowing Dr Ranjha to argue, he himself should plead the government`s case, because in the light of the April 11 order under Rule 6, Order 26, of the Supreme Court Rules of 1980 the court could not allow substitution of any counsel.
“Tell the federation that the court cannot cross this barrier and he should make an application before the court that he would argue the matter,” the chief justice said, adding that the court would accommodate him in the larger interest of justice despite the fact that the review petition suffered from so many issues.
The chief justice praised Mr Agha`s role when the court heard challenges to the 18th Amendment and asked the AAG to let the federation know that the court was not going to adjourn the proceedings sine die. Already the hearing had been taken up after six months, he said.
Justice Tassaduq Hussain Jillani said the via media suggested by the chief justice was in fact the court`s attempt to balance out the mandate of court rules and Article 10-A of the Constitution, about fair trial.
Justice Javed Iqbal suggested another option – let Kamal Azfar argue the case, assisted by Dr Ranjha.
Though Mr Agha welcomed the court`s appreciation and confidence in him and admitted that it was a fair order, he insisted that he needed instructions from the government, at which the court adjourned the matter for a while.
When the court assembled again after the break, Mr Agha said he had failed to get specific instructions and requested that the matter be postponed for a week to let him get definite instructions after persuading the federation to engage him as a counsel instead of Dr Ranjha.
Senior counsel Hafeez Pirzada who had argued the main case against the NRO on behalf of petitioner Dr Mobashir Hasan said he would not object if Mr Agha was allowed to argue the matter but would oppose if permission was given to Dr Ranjha, insisting that deviation from court rules was not possible as in many cases in the past it had declined similar requests.
“We are fully conscious of the constitutional provisions and the Supreme Court rules but to provide another opportunity to seek further instructions we adjourn the case for April 14,” the chief justice said in his order.