Zardari's ZAB reference challenged in Supreme Court -Pakistan Press Foundation (PPF)

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Zardari’s ZAB reference challenged in Supreme Court

By: Sajid Zia

LAHORE — The Supreme Court was moved on Thursday against the presidential reference seeking revisiting of the 32-year-old Zulifiqar Ali Bhutto case decision. ZAB, it may be noted, was hanged in 1979 in the murder case of Nawab Muhammad Ahmad Khan Kasuri. The petition was in the Lahore Registry of the apex court by a lawyer enlisting President Asif Ali Zardari as the respondent.

Allah Buksh Gondal, through his counsel A.K. Dogar, assailed the reference on the constitutional ground that the judgment in the Bhutto case by the SC was of a judicial nature.

“The opinion given by the SC under its advisory jurisdiction, as sought through the reference, cannot override it. Even for the sake of argument, if the SC holds ZAB’s conviction not in accordance with the law and the Constitution the opinion of the court to this effect will have no legal effect to negate the original decision as advisory of jurisdiction of the court cannot change the judicial verdict,” the petitioner pleaded on the support of an Indian SC’s case of 1991.

As to the five questions, placed through the amended reference before the apex court by President Zardari, they could not be taken in review under Article 188 of the Constitution, read with Order 26, Rule 1 of the SC Rules of 1980 as review of the Bhutto case had already been rejected and second review was not competent under the law.

As to seeking opinion under Article 186 of the Constitution, the petitioner argued: “Under this provision a question of law could be placed before the court only on a live issue. Public importance in terms of this Article means a situation wherein social or economic needs of the public cannot be met unless a legal question is answered or [in the day-to-day running of the government] a legal or constitutional bottleneck has occurred which needs to be addressed. A part of the society could be termed the whole public.”

He said a court “cannot concern itself with a question of academic nature, therefore, no useful purpose has to be served by reopening the 32-year-old case after a review of the same also unanimously stands rejected.

From the historical perspective, the petitioner recalled that Bhutto was not free from controversies and on his execution even Dr Babar Awan (the federal law minister who recently resigned to plead the presidential reference) had distributed sweets to celebrate his execution, among other sections of society.

The petitioner pointed out that one of the judges on the ZAB case bench had complained that he was under influence from certain quarters but still he did not disagree with the view of the other judges. “Such an admission did not vitiate the judgment.”

On facts, the petitioner questioned the reference from Zardari, saying that along with holding the office of the President of Pakistan, Zardari was also head of the PPP. “Therefore, the reference to the SC is from the party head, not from the President,” he has pleaded. He also blamed Zardari for abusing his power of the Presidential Office, saying that he (Zardari) through this reference wanted to achieve political mileage.

He prayed to the court that the reference be rejected and time should be given to the Hamoodur Rahman Commission on the Dhaka Fall which “has determined the role of politicians including Bhutto and the military junta in bringing about this catastrophe to the nation.”

LHC seeks reply from NAB: A Division Bench of the Lahore High Court on Thursday sought reply from the National Accountability Bureau (NAB) by May 11 to an application seeking scrapping of the NAB ordinance 1999 as well as the orders, both judicial and administrative passed under it, on the ground that the Ordinance is invalid after office of its creator, Pervez Musharraf as Chief Executive and President has been declared unconstitutional through the court of law.

The bench comprising of Chief Justice Ijaz Ahmad Chaudhry and Mazhar Iqbal Sindhu passed the order on the application filed by Muhammad Altaf in his pending main petition wherein he had questioned the NAB authorities and powers to probe a matter against him.

The applicant said NAB had become non-entity for its constitution is incomplete over the last many months as office of its Chairman has been lying vacant since then. He said not that but appointment of director general NAB Punjab also stands challenged through a separate petition before this court.

He pointed out that unconstitutional president Pervez Musharraf had promulgated this law and a former president Rafiq Tarar had also filed a constitutional petition in the LHC that parliament had not validated Musharraf’s acts as such he may be denied the use of President of former president with his name.

He requested to the court to declare the NAB ordinance ultra vires the constitution and nullify all orders passed by all accountability courts throughout Pakistan in absence of chairman NAB. He further prayed that head office of NAB be sealed and all accountability court be abolished besides requiring parliament to enact a new law on accountability.
Source: The Nation
Date:4/29/2011