Supreme Court approves draft presented by Naek, review petition withdrawn
By: Nasir Iqbal
ISLAMABAD: After more than 30 months the painful NRO saga has ended for President Asif Ali Zardari. The Supreme Court approved on Wednesday the draft of a letter it had ordered the government to write to the Swiss authorities to reopen graft cases against the president.
But the government won the court’s sanction only after firing a warning shot by moving a petition only a day earlier seeking review of the court’s formula of monitoring the legal procedure till final disposition of the matter.
“We find that the proposed communication conforms to the requirements of paragraph No 178 of the judgment of this court rendered in the case of Dr Mubashir Hassan (NRO) and it also addresses the relevant concerns of the government of Pakistan voiced before this court by the prime minister on Sept 18, 2012,” observed Justice Asif Saeed Khosa, who heads a five-judge bench hearing the NRO implementation case.
Justice Khosa revealed the text of the three-paragraph letter to be sent to the attorney general of Geneva (Switzerland). The letter asks for the reopening of $60 million graft cases against the president but, at the same time, emphasises the legal protection and immunity available to him without mentioning constitutional provisions.
The court dismissed the review petition when Law Minister Farooq H. Naek, to the surprise of Attorney General Irfan Qadir, withdrew it for being infructous. Mr Qadir wanted to keep the petition alive till the time a show-cause notice issued by the court to Prime Minister Raja Parvez Ashraf is discharged.
The court adjourned the proceedings for a month and asked the law minister to submit the relevant summary and copy of the prime minister’s authorisation to write the letter and the copy of actual communication to be sent to the Swiss authorities with proper diary number.
Wednesday’s development was received by the legal fraternity with great admiration with everyone praising the judiciary for its positive role. Supreme Court Bar Association (SCBA) president Yasin Azad said he had been claiming for the past several days that the issue was in closing stages.
Former SCBA president Justice (retd) Tariq Mehmood said both the executive and the judiciary had softened their stance which eventually led to the resolution of the longstanding issue.
“Anyway we are happy that at last the matter has been resolved. These are not the issues that the people of Pakistan should be facing,” he said. Although everyone appreciated the development, no-one appears to have any clue to what really transpired that eventually led the matter to end on a positive note.
“I believe the government’s review petition has helped make the judges realise that the government will show no more flexibility on the draft of the letter,” said a senior lawyer who is said to be fully aware of the Swiss cases.
The review petition was indeed a pressure tactics, another lawyer close to government circles said. The lawyer who did not want to be named indicated that some kind of back-channel negotiations were at work all along normal court proceedings.
The government, he said, had come prepared on Wednesday to insist on deciding the review petition first if the court did not assent to the draft, adding that Prime Minister Ashraf was lucky in a sense that he faced a situation different from the one endured by his predecessor Yousuf Raza Gilani.
The ice started breaking when the Supreme Court observed in its July 25 order that President Zardari was also their president and that bridging the trust deficit between the executive and the judiciary was not an impossible task, the lawyer recalled. The court had also rejected a perception that there was any standoff between the two pillars of the state and suggested to the government to find a middle ground to resolve the issue.
Although the Supreme Court commenced the proceedings by taking government’s review petition first, the law minister astounded not only the people sitting in the Courtroom No 3 but also the entire bench. Out of nowhere, the law minister presented, as usual, a white sealed envelope containing the draft copy of the letter after delivering an impassioned speech highlighting how “we as a nation are at crossroads of our history and that posterity will judge us for this day”.
“I stand here like those stand on the Day of Judgment,” Mr Naek said, adding that he was not only answerable to God but also to the government as well as to this court. “I beg of you to reveal justice, let justice be done, let justice triumph and let victory to be the justice,” the law minister said and suddenly presented the draft.
“This is the fourth draft and I must say every time there have been an improvement that reflects efforts were made,” Justice Khosa observed after perusing the contents of the letter.
“This is the commitment the prime minister has given to the court,” Mr Naek said.
“When the review petition was fixed for today somehow at the back of mind, I was sure that better sense will prevail and that we should hold our breath,” Justice Khosa said, adding that last time he had mentioned that “we are inches away from the resolution of the matter”, but now inches had been reduced to millimetres.
The court then decided to retire to the chambers for some time to discuss the contents of the letter and when assembled again, the first thing Justice Khosa asked was about the significance of Wednesday as a day.
“It is called Budh Sudh, a lucky day,” Mr Naek replied.
The court then dictated its order revealing the contents of the letter for the first time and mentioning that had it been disclosed earlier, the kind of improvement which happened on Wednesday would not have been possible.
The court put off the proceedings to November 14 after the law minister said legal procedure would take at least a month because the letter had to be sent by the Foreign Office through the ambassador or his representative to the attorney general of Geneva.