The Federation on Thursday requested the Supreme Court to proceed against the possibility of trampling the Constitution every now and then while deciding the petitions against National Reconciliation Ordinance (NRO).
"Pakistan today is poised at the crossroads. One road leads to a truly Federal democratic welfare state with the balance of power between an independent judiciary, a duly elected government representing the will of the people and a determined executive, which is fighting the war against terrorism and poverty.
"The second road leads to destabilisation of the rule of law. The people of Pakistan await your verdict," said the statement submitted by advocate Kamal Azfar on behalf of the Federation.
A 17-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry, is hearing petitions filed against the promulgation of NRO. The court adjourned the hearing for Monday (December 14). At the outset of hearing, the court questioned National Accountability Bureau (NAB) Prosecutor General Dr Danshwar Malik regarding the record sought from the Bureau about the status of case/record of 60 million dollars, frozen in Swiss accounts through a money-laundering reference against President Asif Ali Zardari in Swiss money-laundering case.
Dr Malik requested the court that the Chairman was not able to present that record on Thursday, therefore be allowed to submit on the next day. The court accepted the request. The NAB Chairman would submit all record before the court on Monday. Kamal Azfar reiterated the earlier stance of the government not to defend the NRO, however, he requested certain clarification regarding the issues raised during the course of proceedings.
The statement said that several issues had been raised for the first time during the hearings and were not prayed by the petitioners, therefore, it was requested to accept the petitions (which challenged the NRO) to the effect that the NRO was ultra vires to the Constitution, arbitrary, against Articles 2-A, 4, 8 (that deal with fundamental rights).
The Chief Justice observed: "We did not derail the system in our July 31 judgement. And we will not derail the system now. We have nothing personal and are not concerned with identifying the beneficiaries; we simply examine laws in relation to the Constitution. We had sent 37 laws to parliament for approval acknowledging the trichotomy of powers, however, parliament did not vote on the ordinance," the Chief Justice said.
Justice Khalilur Rehman Ramday observed that "this parliament also includes those who benefited from the ordinance, but did not vote for it. We are proud of them, this is the nation's collective conscience." Justice Javed Iqbal observed that the Federation was conceding and contesting the NRO at the same time.
Advocate Ibrahim Satti appeared before the court as counsel for Fazal Jutt, a Federal Investigation Agency (FIA) official, facing a NAB reference, but he had sought relief under the NRO. While hearing his appeal on August 12, a two-member bench suggested the Chief Justice to constitute a larger bench for deliberation.
Ibrahim Satti was the first person to defend the controversial ordinance, and said that the court was hearing one-sided version for the last four days and was going to strike it down, however, he maintained that the ordinance did not violate fundamental rights.
Taking umbrage at the use of the phrase "one-sided," Justice Chaudhry Ijaz remarked "by God, I have no love for this seat, I can quit right now as I did on November 2, 2007." "This court is open, we have issued notices to everyone and if there is no one to defend the ordinance that is not the court's fault," observed Justice Ramday.
When asked about the circumstances, in which the NRO was promulgated, Satti said it was promulgated on October 5, 2007 and came before the apex court on October 12. The court had passed an order that benefits would be subject to the final order of the court and adjourned the hearing for three weeks.
Satti said after the adjournment of three weeks, the case against the NRO was to be taken up by the court on or after November 3, 2007. The emergency was and attempts to pre-empt or avert any decision against the NRO, on November 3, 2007, he added. Justice Ramday passed an observation in a light mood, "so it was Mr Chief Justice who is behind our confinement, I thought it was someone else."
Meanwhile, Pakistan Muslim League- Nawaz President and Punjab Chief Minister Mian Shahbaz Sharif moved an application, seeking restoration of his petition against the NRO that was dismissed due to non-prosecution by Justice (retired) Abdul Hameed Dogar. Advocate Ashtar Ausaf Ali has moved the application. Earlier, while concluding his arguments, advocate Abdul Hafeez Pirzada, counsel for Dr Mubashar Hassan, contended that the ordinance was void ab initio (invalid from the outset), therefore, the question of its consequences if struck down does not arise.
It was promulgated in an unholy haste that every formality was met on the same day. The draft of NRO, meeting of the cabinet and approval to be sent to the Law Ministry, which sent it the Prime Minister for his advice and approval by the President was done in a single day, ie October 5, 2007. Pirzada sought permission of the court to file a reply against the statement, filed by the Federation through advocate Kamal Azfar that was accepted by the court.
On the request of Pirzada, the court allowed Dr Mubashar Hasan to submit his statement before the court. Dr Hassan said that when two organs of the state became incapable to perform their duties, it was incumbent on the third organ (judiciary) to come and rescue the state.
Representing Roedad Khan, advocate Ikram Chaudhry said that the NRO was purpose specific, person specific, time specific and was inherent mischief in the law. Justice Raja Fayyaz Ahmed observed that it was merely elite class, which got the benefit, which was violation of Article 3 of the Constitution. Dr Farooq Hassan, counsel for Qazi Hussain Ahmed, former Amir of Jama'at-e-Islami, and advocate Tariq Asad also submitted their arguments, challenging the NRO.