Swiss cases time-barred, govt claims
By Rauf Klasra
ISLAMABAD: The federal government has informed the Supreme Court of Pakistan in its updated review petition that the 17-member full bench had “erred” in directing the PPP government to reopen the Swiss cases against the late Benazir Bhutto, ailing Nusrat Bhutto and Asif Ali Zardari as under the relevant laws of Switzerland, a case once closed, could not be reopened after ten days of its closing.
The Supreme Court’s 17 judges, who had ordered the PPP government in the NRO judgment to reopen the Swiss cases, have now been informed in the updated review petition by the federation that their order to reopen the cases in Switzerland tantamount to putting “grave of Benazir Bhutto in Garhi Khuda Bux on trial” in addition to the trial of ailing Nusrat Bhutto and it is against all “norms of justice, decency, morality and law” as Asif Zardari was the only co-accused.
The federal government has now taken a firm position in its updated petition that no case could be reopened in the Swiss court against the two Bhutto ladies and Mr Zardari despite the Supreme Court orders, as the judges needed to understand that these cases were closed on August 25, 2008 by the Swiss authorities and any request for their reopening was possible only within ten days of their closure. It was a time-barred decision and now these cases could not be reopened under the laws of Switzerland, the review petition reads.
According to the copy of this updated review petition exclusively available with The News, the federation has now taken a clear position before the SC that the reopening of the Swiss cases against the three accused was not possible at this stage, as they were withdrawn and settled according to the law.
The review petition revealed that the SC failed to consider the order of the public prosecutor of the republic and canton of Geneva dated August 25, 2008. It said that this was a detailed order, which did not close the proceedings simply on the basis of Attorney General of Pakistan Malik Qayyum’s letter dated May 25, 2008. It said, instead after the prosecutor general personally reviewed and analysed the testimonies collected on file by the investigation magistrate of Geneva, decided to close the proceeding. “This was, therefore, a decision by the public prosecutor after examining the merit of the case,” the petition said.
It reads that government has quoted the last paragraph of the 25 August order of the public prosecutor, which it said concluded, “At last the testimonies collected in the file and reported above show no conclusive evidence, which would allow to invalidate the final observation made on the basis of the file by the public prosecutor of Pakistan”. It further reads that the August 25 order of the Swiss court specially stated as under “ informs the parties in accordance with article 192 Swiss penal code, that they may file an appeal against the present order to close the case by filing motivated submission before the clerk of the accusation chamber within ten days of receipt of the present decision”. But, the review petition now said no appeal was filed against the closure of the cases in Switzerland so the order dated August 25 attained finality and the proceedings have been closed in Switzerland. As such, the Supreme Court erred in ordering the reopening of the proceedings. In the case of Zafar Ali Shah this doctrine was replied upon. The judgment held the field even today. On earlier occasion, the similar view was taken by the SC in the Haji Saifullah case when the government of the former PM Junejo was dissolved and the view was taken that though the act of dissolution of the government was illegal but since the nation was on its way of transition and prepared to go for new elections, therefore, the previous government was not restored. The review petition said, the August 25 order was before the court but it failed to consider its contents and legal consequences led to an error, which is apparent on the face of record. It said that the court had erred in para 178 of its detailed judgment in giving such an order to the federal government and other concerned authorities. “It also offends the Constitution of Pakistan,” it reads.
In its petition to justify its review, the federal government has not only raised serious objections over the formation of a 17-member full bench to hear the NRO petition as it believed the bench should have been smaller, but it has now even attacked the presence of Justice Khalilur Rehman Ramday in the full bench. It said, Justice Ramday should have not been part of the Supreme Court bench, which gave the judgment against the NRO on the ground that his brother Ch. Farooq, as Attorney General of Pakistan during the Nawaz government, had actually instituted the Swiss cases against Benazir Bhutto, Nusrat Bhutto and Asif Ali Zardari.
The federal government through the Ministry of Law and Justice has also questioned in its review petition, without naming Nawaz Sharif and Shahbaz Sharif, that no objections were ever raised from the court when they were being pardoned by General Pervez Musharraf and went out of Pakistan under a deal. But, it regretted that now NRO was considered a deal between two individuals-Benazir Bhutto and General Musharraf and the petition said that it was not the right approach as this law had enabled even politicians in exile (Sharif brothers) to return to country, who otherwise in the absence of the NRO were forcibly dispatched to Jeddah from Islamabad on September 10, 2007.
The petition has also raised serious objections to the formation of a full bench to hear the NRO petition. It said, the SC erred in hearing the case before a full bench comprising all its judges, as the effect of this is to preclude an effective remedy of review before some new judges, which is against the principle of natural justice. It has always been a practice of the court whenever a review petition is filed other than the author/judges that some new judges are inducted into the bench in order to meet the requirements of natural justice and to make a review a meaningful judicial exercise because the review emanates from the provisions of article 188 of the Constitution. In this present case the petition is deprived of this valuable constitutional right, which is sufficient ground by itself for the acceptance of instant petition.
Raising serious objection against the presence of Justice Ramday in the full bench, the petition says that he should have not been there and should have refused to sit on the bench because it was his brother Ch Mohammad Farooq who had actually instituted cases against Benazir, Nusrat Bhutto and Zardari. It said, Nawaz Sharif’s AG Ch Mohammad Farooq, brother of Justice Ramday had written a letter in October 1997, which had triggered the false proceedings in the name of so-called mutual assistance against Benazir Bhutto and Nusrat Bhutto along with co-accused. The malice of the then government is evident from the averments of the letter, which says it is written at the behest of Senator Saifur Rehman Chairman Ehtesab Bureau. It is also admitted position from the record that the entire exercise of implicating Benazir Bhutto and Nusrat Bhutto was sheer persecution and motivated by political vengeance and victimisation. Now, therefore, by implication, giving an order of opening the cases abroad meant putting the “grave of Benazir Bhutto” on trial. It said the judgment under review stands solely on the ground that one judge while being a judge in the Lahore High Court himself expressed his inability to hear the cases against Benazir Bhutto and the wife of Zulfikar Ali Bhutto – Nusrat Bhutto – on the ground that his brother former AGP Ch Mohammad Farooq initiated the cases through a letter, therefore, the hearing of the case by Justice Ramday was improper. But, the petition said later being judge of the Supreme Court, the same Judge Ramday opted to sit on the bench and heard the case. “This matter is, therefore, hit by the judgment reported in PLD 2001 SC 568 wherein it was held that bias had been described as a condition of mind and had been held to refer not to the views entertained regarding a particular subject matter but to the mental attitude are disposition towards a particular person and to cover all varieties of personal hostility or prejudice against him” the petition said.
It also said if the AGP Malik Qayyum did not have any legal right to write to the Swiss authorities to close the cases, how could the AGP of Nawaz Sharif – Ch Mohammad Farooq – get those cases registered only on the instructions of Senator Saifur Rehman as AGP? But, it said, Malik Qayyum had formally taken permission from the then president General Musharraf. But, it has been pointed out in the review petition that Ch Farooq was writing to foreign countries and their courts and police without any legal authority as Senator Saifur Rehman was not the real authority from which the AGP took the instructions.
The government has also attached the references of Zafar Ali Shah versus General Musharraf with its review petition by pointing out that the court had not only validated the military takeover but it had also given the right to Musharraf to make amendments in the Constitution. The petition said, the court gave relief to two military generals – Zia and Musharraf – in the past, which was beyond the prayers. It said, in the NRO case, the court should have only confined itself to the prayers by the petitioners who were only asking it to declare the law null and void. But, the petition said, the SC travelled outside the parameters of the prayers, which the federation had conceded to. “Such an error on the part of the court left the federation condemned unheard on numerous important issues decided upon in the detailed judgment and was a breach of the time honoured principle of right to be heard”, the updated review petition said.
Source: The News
Date:2/24/2010
” 
” 
” 
” 
