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Pak PM to explain ‘calculated defiance’ to Supreme Court
Publication Date : 09-08-2012
Both sides stuck to their guns yesterday and succeeded in setting the stage for another face-off. The Supreme Court issued a show-cause notice to Prime Minister Raja Pervez Ashraf for not implementing the National Reconciliation Order (NRO) judgment while the federal government moved two review petitions challenging the scrapping of Contempt of Court Act (COCA) 2012 and asking the prime minister to implement the NRO verdict.
The prime minister was issued the notice for committing contempt of court less than two months after assuming the exalted office and five days after throwing away by the court of the COCA.
Thus the prime minister becomes the second chief executive to be arraigned by the Supreme Court for committing its contempt. Like his predecessor, PM Ashraf will have to appear before the court in person, after the Eid-ul-Fitr (the Islamic festival marking the end of fasting month Ramadan), on August 27 to answer what a five-judge bench, headed by Justice Asif Saeed Khosa, described yesterday as "calculated defiance".
Justice Khosa was of the opinion that the prime minister had used dilatory tactics and excuses for resisting implementation of the NRO judgment.
He will be prosecuted under the old Contempt of Court Ordinance 2003, which was resurrected by the Supreme Court through its August 3 order which struck down the hastily-enacted new COCA.
The contentious NRO verdict required the government to write a letter to the Swiss authorities to reopen graft cases worth $60 million against President Asif Zardari.
The decision, however, disappointed those who believed that there had been a change of heart on part of the judiciary towards the government, especially against the backdrop of July 25 order when the court had suggested to the federation to find a way out of the impasse.
But what ostensibly changed the mind of the court were the intentions expressed by Law Minister Farooq H. Naek on a TV talk show on Tuesday night that the government was considering going for a review of the NRO verdict — a decision that had already attained finality after Supreme Court’s rejection of the government’s review petition.
“The Supreme Court cannot depart an inch from its judgment on the NRO,” observed Justice Asif Khosa.
He said Attorney General (AG) Irfan Qadir had already maintained that the court had not been properly assisted on facts and law before rendering the NRO judgment and also at the time of handing down its judgment in the review petition and, therefore, the said judgments were, in AG’s words,“un-implementable”.
On June 19, the government of former prime minister Yousuf Raza Gilani was sent packing after the court disqualified him for committing contempt.
The court issued the show-cause notice to Prime Minister Ashraf under Section 17 of the Contempt of Court Ordinance 2003, read with Article 204 of the Constitution, despite requests by the AG for more time so that he could continue efforts to find an amicable solution and fulfil the confidence reposed by the court in him. “Consultation has to be done with the coalition government and I will try my best to bridge the gap,” he said.
But the court was not in a mood to listen to him and took the response in negative.
“This is a black day,” said rights activist and former president of the Supreme Court Bar Association (SCBA), Asma Jehangir. This was the beginning of the end of the democratic system, she added.
“The prime minister comes and goes, but there is a widely-believed impression that the judiciary is rendering judgment in accordance with a well thought-out political strategy. As a consequence it is the country which is suffering badly,” she regretted.
The legal fraternity had rendered sacrifices for independence of judiciary, but now it was being undermined by “people sitting within the courts”, she said.
“We are not in favour of absolute authority of any institution,” she said. Jehangir hit out at what she called “diehard ultra loyalists”, alleging that they had become a pressure group to influence the judgments of courts.
Eminent lawyer Abdul Hafeez Pirzada was of the opinion that only bad would emanate from the confrontation between the two institutions, adding that the Supreme Court could not go outside its earlier verdict of convicting the former prime minister. Therefore, the incumbent prime minister would also have to go like his predecessor, he added.
He said that although the apex court was exercising restraint, such issues should be decided as early as possible to end uncertainty.
The SCBA’s former president, Justice (retd) Tariq Mehmood, described the development as unfortunate and said uncertainty created by such a situation always led to political and economic instability.
He expressed the hope that the reply to be submitted by the prime minister under section 17 of the contempt ordinance in response to the show-cause notice would be accepted by the Supreme Court and the matter would end there. “Even if the politicians are dirty, corrupt and inefficient, they are the ones who have to run the country,” he said.
In its order the court said it had expressed the hope and confidence that the new prime minister/chief executive, who had stepped into the shoes of his predecessor in office, would implement the NRO verdict.
It said: “It goes without saying that an implementation bench cannot go behind a concluded and final judgment or revisit the same. We may observe at this stage, and we observe so with respect to the esteemed elective office of the prime minister, that the ostensible calculated defiance on his part through adoption of dilatory tactics and putting up excuses for resisting implementation of this court’s directions may know no bounds, but at the same time restraint exercised by this court is also not without any limit.”
COCA order review
In its petition seeking review of the court’s August 3 order of striking down the COCA, the government argued that the Supreme Court could not have proceeded to decide the petitions on merit without disposing of the federation’s objections to maintainability of the challenges to the act.
Drafted by Advocate Abdul Shakoor Paracha, the review petition stated that only fundamental rights falling within the parameters of the Constitution could be enforced. It said the apex court’s order was violative of Article 25 (equality of citizens) in having entertained the same directly, instead of rejecting these on the grounds that the high court should have been approached first.
The petitions against the new contempt law were not maintainable because they were not based on any grievance or injury suffered by the petitioners, it said, adding that the petitioners had not been deprived of any fundamental right and their petitions were based on speculations and apprehensions.
NRO order review
In another review petition, the government stated that the prime minister could not be asked by means of the July 12 order (of complying with the NRO judgment) for implementation of an “un-implementable direction” given by the Supreme Court in the NRO case.
“There is no question whatsoever of revival of Pakistan’s status as a damaged party (writing of letter to the Swiss authorities) because the Supreme Court’s own jurisdiction is limited to the territories of Pakistan,” the petition said, adding that if the court itself was not in a position to seek revival of Pakistan’s status as a damaged party then it also had no mandate to force the prime minister to do the same.