PROFOUNDLY CENSURED

The Supreme Court on Tuesday warned Prime Minister Yousuf Raza Gilani he could be removed from office if he doesn't take action against long standing corruption cases against President Asif Ali Zardari and others.
Announcing its order on non-implementation of NRO verdict, a special bench of the Supreme Court observed that the Prime Minister did not meet the criteria to be elected as member of the parliament for not being an honest person on account of his oath. The court also accused President Zardari of the same.
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The bench, without giving any ruling, outlined six options or outcomes in National Reconciliation Ordinance (NRO) implementation case and recommended the matter to the Chief Justice for its hearing through the constitution of a larger bench on January 16.
A five-member special bench of Justice Asif Saeed Khan Khosa held that persistent, obstinate and contumacious resistance, failure or refusal of the Prime Minister to completely obey and execute the directions issued in the NRO case reflected that 'at least prima facie, he may not be an "honest" person on account of the oath of his office and seemingly he may not be an "ameen" due to "his persistent betrayal of the trust reposed in him, as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions."
The bench also held that the federal government and the National Accountability Bureau were not serious in implementing the NRO verdict at all and were only interested in delaying and prolonging the matter on one pretext or the other. The court spelled out six options. In its first option, the court held that non-implementation of the NRO verdict was a case of a brazen and blatant failure or refusal of the federal government and the buck stopped at the office of the chief executive of the federation, the Prime Minister.
The SC held that the Prime Minister had violated his oath by not executing and implementing the NRO verdict. The bench said that the Prime Minister in his oath had made an unambiguous commitment with Allah Almighty not only to conduct himself completely in accord with the commands and requirements of the constitution, including those of Articles 2A, 37(d), 189 and 190 thereof, also totally in sync with the requirements and teachings of the Holy Quran, but he violated his oath by not obeying the court orders.
It said according to clause (f) of Article 62(1) of the Constitution, "A person shall not be qualified to be elected or chosen as a member of parliament unless -- he is sagacious, righteous, non-profligate, honest and ameen". The court noted that it has an option to hand down a declaration in terms of clause (f) of Article 62(1) of the Constitution which may have the effect of a permanent clog on the Prime Minister's qualification for election to or being chosen as a member of parliament or a provincial assembly.
Referring to the Preamble to the Constitution that "sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust" and "the State shall exercise its powers and authority through the chosen representatives of the people", the bench noted that a chosen representative of the people deliberately violating such a sacred trust and disregarding his commitment in that regard with Allah Almighty may hardly qualify to be accepted as "ameen".
The court also noted that somewhat similar oaths had also been made by the Co-Chairperson of the PPP before entering the office of the President of Pakistan and by the Federal Minister for Law, Justice and Human Rights Division before entering the office of a Federal Minister and apparent breaches of their oaths may also entail the same consequences.
In its second option, the court held that it may initiate proceedings against the prime minister, the law minister, and the law secretary for committing contempt of court by persistently, obstinately and contumaciously resisting, failing or refusing to implement or execute in full the directions of the court in the NRO verdict.
In its third option, the court held that in exercise of its powers under Article 187 of the Constitution read with Rules 1 and 2 of Order XXXII of the Supreme Court Rules, 1980 and all other enabling provisions, it may appoint a Commission to execute the relevant parts of the NRO judgement and consequent directions.
The fourth option states that although in the present proceedings nobody has so far raised the issue pertaining to the protections contemplated by Article 248 of the Constitution, if anybody likely to be affected by exercise of these options by the court and wishes to be heard on that question then an opportunity may be afforded to him in that respect before exercise of any of these options.
The fifth option states that it is a statutory duty of the NAB chairman under the NRO 1999 to proceed against any person prima facie involved in the misuse of authority while holding a public office. It said on January 3 the court had directed the NAB chairman to attend to the matters of appointment of Adnan Khawaja as Managing Director of the Oil and Gas Development Company Limited (OGDCL) against merit and appointment/promotion of Ahmed Riaz Sheikh as Additional Director, FIA at a time when both of them were convicted persons. It had also asked NAB to proceed against all those who were responsible for such appointments/promotion.
The bench added the chairman has also failed so far to initiate any action against Malik Muhammad Qayyum, a former Attorney-General. It said the chairman has not only failed to advance any satisfactory explanation for his inaction but has also showing manifested defiance towards the court by refusing to carry out the court's directions.
The court noted that such inaction on his part in derogation of his statutory duty prima facie amounts to misconduct, attracting the last part of section 6(b)(i) of the National Accountability Ordinance, 1999 that deals with removal of the Chairman from his office.
The court further noted that the chairman has attempted to screen, shield and protect the relevant persons from criminal charges which may attract consequences in some criminal and other laws. In these circumstances appropriate recommendations or directions may be made or issued by the court in such regards.
The sixth court option states that the constitutional balance vis-à-vis trichotomy and separation of powers between the Legislature, the Judiciary and the Executive is very delicately poised and if in a given situation the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself, the court may exercise judicial restraint and leave the matter to the better judgement of the people of the country or their representatives in Parliament.
Earlier, during the hearing of the case, the court expressed dismay over the role of Attorney General, the NAB Chairman and the NAB Prosecutor-General for showing no progress towards court's order in the NRO's implementation case. The court also rejected the reports submitted by the NAB Prosecutor-General, in which he categorically concluded that the NAB has decided not to proceed in the matters of Adnan Khawaja and Ahmad Riaz Sheikh.
"The NAB Chairman, has not only owned the reports submitted by the Prosecutor General but has adopted a defiant attitude by stating that the decision whether to proceed against any person under the National Accountability Ordinance, 1999 or not is a decision which falls within his exclusive jurisdiction and he has decided not to proceed against any person in the matters of Adnan Khawaja, Ahmad Riaz Sheikh and [former Attorney General] Malik Muhammad Qayyum," the court said.
Despite clear orders, the law secretary did not turn up on January 3 on account of being abroad and even today he did not appear and the court was informed that he was unwell and was receiving medical treatment, but nothing had been produced before the court to substantiate the same. "It appears that he prefers foreign sojourns upon his commitments before the highest court of the country," the court noted.
Attorney General for Pakistan Maulvi Anwarul Haq stated that there is no change in the situation since the last date of hearing and no step in furtherance of the court's earlier directions has been taken by anybody during the interregnum. Ahsan Raja, former Additional Secretary Ministry of Interior, tried to convince the court that he had no malicious intent in the matter of promotion of Ahmad Riaz Sheikh.
According to the bench, it appears that all the concerned have consciously decided to defy and disobey this court. It said the court has already shown a lot of grace and magnanimity in the matter and has demonstrated a lot of patience and restraint in this regard over the last about two years but in the present dismal and most unfortunate state of affairs, the court is left with no other option but to take appropriate actions in order to uphold and maintain the dignity of the court and to salvage and restore the delicately poised constitutional balance in accord with the norms of constitutional democracy.
The court said President of Pakistan has categorically stated that under his Co-Chairpersonship his political party has taken a political decision not to obey some parts of the judgement handed down by the court in the NRO case. The court said that even the Prime Minister and the law minister have been harping the same theme for quite some time on different occasions through speeches made on the floors of the National Assembly and the Senate and also through print and electronic media.
"We may unhesitatingly observe that in our country governed by a Constitution political loyalty cannot be accepted as stronger than loyalty to the State and dictates of a political master or party cannot be allowed to be put up as a defence to failure to obey the Constitution," the order stated.
"Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
"We the Judges of the Supreme Court have made an oath before Allah Almighty to "preserve, protect and defend the Constitution of Pakistan" and, thus, it is our bounden duty to take appropriate action whenever we find that the Constitution is not being obeyed or its expressed commands are, wittingly or otherwise, being disregarded. Let nobody forget that in the not too distant past we stuck to our commitment to the Constitution and constitutionalism and were not shy of giving personal sacrifices for fulfilment of that commitment," the order said. The bench directed the AGP, federal law secretary, the chairman NAB and Prosecutor-General Accountability to appear before the larger bench in person on next hearing on January 16.