Confrontation delayed
Nasir Iqbal
ISLAMABAD: The short order that came on Tuesday afternoon was expected to cause fireworks but in reality it simply delayed a confrontation till next week. The curtain that was predicted to fall on the Pakistan People’s Party (PPP) government did not move.
The Supreme Court was the focus of attention all morning as people waited with bated breath for the judgment of a five-judge bench on the NRO implementation case.
Lawyers, government officials and journalists crowded the building on Constitution Avenue though it was not Courtroom One (where the chief justice usually presides in) they all made a beeline for. Instead they all headed for the bench presided over by Justice Asif Saeed Khosa.
But the order, when it came, simply passed the buck to a larger bench it suggested be set up to hear the case next week.
However, this did not stop observers and journalists from going into a tizzy and predicting yet another conflagration between the government and the judiciary.
Unprecedented in its tone and form, the order provided no judgment; instead it laid out six options in front of the court of which one could possibly be a part of the final judgment.
It referred the matter back to Chief Justice Iftikhar Muhammad Chaudhry, suggesting that a larger bench hear the matter on January 16.
Apart from that, it is noteworthy that the language of the order is hard hitting and it takes to task the prime minister in particular. `In such a case of a brazen and blatant failure or refusal of the federal government to obey the buck stops at the office of the chief executive of the federation i.e. the prime minister, Justice Asif Saeed Khosa said while reading out the judgment.
Justice Khosa asked Attorney General Maulvi Anwarul Haq to get instructions from the government before arguing why the court should not exercise any of the six options.
Disqualification on the basis of Article 62: In the first option, the order said, the apparent persistent, obstinate and contumacious resistance or refusal of the chief executive to obey and carry out the court`s directions reflected, on the face of it, that he (prime minister) may not be an `honest` person as he was not honest to the oath of his office.
It then went on to warn that the court had the option of handing down a declaration in terms of Article 62(1 f) of the Constitution that could affect prime minister`s qualification to be a member of parliament.
It then, in a less cursory manner, pointed out that the behaviour of the PPP co chairperson (President Asif Ali Zardari) and the law minister could also fall in the same category.
It criticised the ruling officials for making it clear that their loyalty to their party outweighed their loyalty to the state and their `inviolable obligation` to obey the Constitution.
Disqualification on the basis of committing contempt of court: Option two outlined the possibility of initiating contempt proceedings against the prime minister, the law minister and the secretary law for persistently resisting implementing the directions in the NRO judgment.
Once again the order pointed out that this could once again lead to disqualification from being elected or chosen as member of parliament.
Formation of a commission: The third option suggested the appointment of a commission under Article 187 of the Constitution and Rules 1 and 2 of Order 32 of the Supreme Court Rules 1980 to execute relevant parts of the NRO judgment.
Opportunity to hear affected people: The fourth was not an alternative ruling, but instead it said that the opportunity could be provided to any affected person to be heard before exercise of any of these options. As this option referred to the president`s immunity, it could be interpreted as an opportunity for the court to discuss the legal aspects of the immunity enjoyed by the president.
Removal of NAB chairman: In option five, the order trained its guns on the NAB chairman who was censured for his alleged failure to attend to the appointment of Adnan Khawaja as Managing Director of the Oil and Gas Development Company Ltd (OGDCL) in disregard of merit and the promotion of Ahmed Riaz Sheikh as Additional Director of the Federal Investigation Authority at a time when both of them were convicted.
It also castigated him for not initiating any action against former attorney general MalikMohammad Qayyum.
The order pointed out that the chairman`s inaction, on the face of it, amounted to misconduct that could lead to him being removed.
Let the people decide:The last option focused on the court exercising judicial restraint and leaving the matter to the better judgment of the people of the country or their representatives in parliament. In this option the court conceded that the constitutional balance was delicately poised and insistence on the implementation of the judicial verdict and thereby running the risk of bringing down the constitutional structure the court could exercise restraint, the verdict said.
The ruling drew a mixed reaction from legal experts as the country was forced to another bout of endless debates on a possible con-frontation between the government and the judiciary in which the supporters of both institutions thundered against the other. However, all it revealed was the political polarisation present instead of a nuanced debate on the legal positions of either.
Barrister Zafarullah of the PML-N said the court had shown judicial restraint.
`The court has provided a last opportunity to the government to act because defiance on part of it against the Supreme Court order would lead to chaos in the country, he said. However, Roedad Khan, one of the petitioners against the controversial NRO, openly expressed disappointment over the order and questioned why the court was not punishing the delinquents. He regretted that the court had shifted the entire responsibility to the larger bench, despite the fact that it was being maligned and it was being held in contempt by the government.
However, the PPP stuck to a defiant note with the statement of former law minister Dr Babar Awan: `Who is popular and who is not is a question that rests with the people of Pakistan.` He pointed out that President Asif Ali Zardari and former prime ministers Benazir Bhutto and Zulfikar Ali Bhutto had been elected by the people of Pakistan.
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