The government has little moral or legal justification for not implementing or delaying the implementation of the Supreme Court judgement on the National Reconciliation Ordinance (NRO).By withdrawing it from the National Assembly and by subsequently abdicating its indefeasible right to defend the measure, the government conceded that the NRO was a bad law unworthy of being retained on the statute book.
The corollary is that all actions and decisions taken under it were unlawful and void. The Supreme Court had thus no option but to allow the petitions moved by Dr Mubashir Hasan and others to challenge the validity of the NRO and declare it unconstitutional ab initio; invalidate all the executive fiats and judicial decrees flowing from it; and restore the status quo ante as it existed on October 5, 2007, the day the ordinance was promulgated. The court could not have set aside the ordinance on the one hand and upheld its consequences on the other.
The government is trying to be too clever by half by distancing itself from the ordinance, yet clutching to the 'benefits' accruing from it to certain alleged offenders, who were facing charges or proceedings in municipal and/or foreign jurisdictions. But for the invalidated measures, some of its key leaders might not have been able to enter the electoral arena and occupy high offices of the state. Simply stated, the government position, at least in a couple of cases, is that while the NRO is a bad law, the actions taken under it should be protected for one reason or another. This amounts to approbation and reprobation at the same time, which is equally reprehensible under the law and morality. In fact, the government is estopped by its conduct from faulting the judgement or withholding its implementation.
Instead of implementing the SC judgement in its entirety, the government is only taking half-hearted and partial measures in fits and starts to show formal compliance with the directives issued by the court. While it had no gumption to place the NRO before the National Assembly for adoption or validation and did not want to be seen defending it in the Supreme Court, it is trying to circumvent the judgement by leaning on specious reasoning.
For instance, according to the government, the Supreme Court order for appointment of a new chairman of the National Accountability Bureau cannot be given effect because the NAB chief is removable only by the Supreme Judicial Council under Article 209 of the Constitution. A reference to the SJC for misconduct under Article 209 on the basis of the SC judgement could have been made by now. In the alternative, if the government really finds itself in a legal quandary, a reference could have been filed with the Supreme Court itself to seek its opinion on the enforcement of its order under Article 186.
The article provides that if at any time the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law, which he considers of public importance, he may refer the question to the Supreme Court for consideration. The court shall consider a question the question so referred and report its opinion on the question to the President. In fact, all ticklish matters arising from the SC judgement on NRO can be referred to the Supreme Court. The same purpose can, perhaps, be served by moving an exhaustive review petition before the highest court together with a request for staying the operation of the directions in respect of which clarifications are required by the government.
Among these matters falls the question of the withdrawal of the state of Pakistan from the Swiss court proceedings in the SGS-Cotecna case. The case concerns the receipt of kickbacks, amounting to 60 million dollars in contracts awarded to the Swiss firms SGS and Cotecna for pre-shipment inspection of imports into Pakistan. The amount was deposited in the accounts of offshore companies allegedly belonging to Asif Ali Zardari and other accused.The laundered amount of $60 million was ordered frozen by the Swiss authorities pending adjudication. Swiss investigating magistrate Daniel Devaud sentenced the accused for various terms and ordered 'restitution of the laundered amount of $60 million to the Islamic Republic of Pakistan'.
The accused challenged the magistrate's order in a Swiss appellate court. The impugned order was also being defended by Pakistan as a 'damaged' or aggrieved civil party. However, the Pakistan government withdrew from the proceedings as a respondent under the National Reconciliation Ordinance. The withdrawal of the case implied relinquishment of the country's claim to $60 million, which had been ordered to be repatriated to Pakistan by a Swiss magistrate.
In its judgement on the NRO, the Supreme Court ordered the withdrawal of Pakistan's case from the Swiss appellate court as unauthorised and unlawful. Action was ordered against Malik Muhammad Qayyum, the then attorney-general, for seeking withdrawal without due authorisation. Incidentally, Malik had convicted and sentenced Benazir Bhutto and Zardari as a high court accountability judge for receiving commissions from the delinquent Swiss firms, though the judgement was set aside and the case was remanded by the Supreme Court on account of bias.
The Supreme Court has now ordered that the Pakistan government approach the Swiss authorities promptly for restitution of its case and claim to the repatriation of $60 million decreed in its favour.No action has been taken by the authorities and the order still awaits implementation.The prime minister and the law minister say that the case involves the president, who enjoys immunity from criminal prosecution under Article 248 of the country's Constitution.The legal opinion is divided on the scope of immunity and whether it could be pressed into service to surrender a claim in respect of public money in a foreign court.
Democracy is based on the cardinal principle that there can be no taxation without representation that the public representatives are there to act as trustees of the public money. In a recent example of how sacred this trust is considered in functional democracies, about 380 former and sitting 380 British parliamentarians, who dishonestly claimed sundry amounts for their official expenses between the years 2004 and 2009, were asked to recompense the exchequer. Four of the MPs, three sitting Labour members of the Commons and a Tory lord, are to be prosecuted. The highest sum misappropriated did not amount to more than 42,675 pounds, but the law was allowed to take its course and the two major parties also immediately acted against their offending members.