Supreme Court can Call Army.......Hafiz Peerzada

[DR MEHMOODZAI]

‘SC can call Army if verdict not implemented’
By Sohail Khan

ISLAMABAD: Senior lawyer of the Supreme Court Abdul Hafeez Pirzada on Wednesday said the apex court could call the Army for help in getting its verdict implemented. He said the Army was a part of the executive and was bound to obey the court’s order under Article 190 of the Constitution.

“The apex court can call the Army chief for help to get its verdicts put into action,” he told reporters here in the Supreme Court while commenting over the SC’s detailed judgment on the National Reconciliation Ordinance (NRO).

“There is an antecedent on this in past, when former chief justice Sajjad Ali Shah called the Army chief,” he said, adding the government was morally bound to implement the court’s decision in letter and spirit.

He rejected the impression that the court’s direction to the Army would seem to invite it (Army) for taking charge of the government. “If the government shows some wisdom, then there is no chance of any clash between the institutions,” he said. He said that it would be necessary for the government to file another petition in the court for seeking immunity for the president.

About the fresh controversy regarding the appointments of judges in the superior courts, he said that junior judges could also be appointed in the Supreme Court.

He also mentioned that the court had already given a decision about that issue in the matter of Justice (retd) Khalilur Rehman Ramday, Justice (retd) Muhammad Nawaz Abbasi and Justice (retd) Faqir Muhammad Khokhar’s appointments in the apex court. According to the decision, he added, the chief justice of Pakistan can send recommendations about the appointment of judges in the Supreme Court.

Answering a question about the qualification of any candidate in the election process, the senior lawyer said that under Article 63 of the Constitution, qualification of any person could be challenged even after the election process. He said that the speaker of the National Assembly or the chairman Senate could send references to the Election Commission in this regard.

[DR MEHMOODZAI]

Govt in panic, short of time
Hectic discussions on president’s eligibility, immunity
By Kamran Khan

KARACHI: President Asif Ali Zardari was making hectic consultations with his political aides on Wednesday night after it became apparent that the detailed judgment by the full bench of the Supreme Court was about to trigger a new decisive court battle that might deal a fatal blow to his constitutional eligibility to serve as the President of Pakistan, authoritative sources have revealed.

At the same time, late Wednesday night, the Prime Minister House was humming with reports that Yousuf Raza Gilani had been informed by his legal aides that he had almost no time left to further delay action on the Supreme Court orders to approach the Swiss legal authorities for the revival of money laundering cases against the president and institute strict action against former attorney general Malik Qayyum.

Informed political and official sources said that the most pressing problem remains an outcome of an expected quo-warranto appeal (challenging the eligibility of President Zardari) in the wake of the Supreme Court judgment.

The sources said that a conviction, reportedly awarded to Zardari by a NAB court for not appearing in the BMW case (the case was also mentioned by lawyer A K Dogar in his arguments during the NRO hearings), will get the attention as the detailed judgment has devoted several paragraphs in explaining why these convictions in absentia will stay, and a related section in the NRO, which provided specific benefit to such people, was violative of the Constitution.

After giving an extensive background, the SC’s detailed judgment said in paragraph 71: “It is crystal clear that offence falling within the mischief of Section 31A of the NAO 1999 is distinct offence, from the allegations made in the reference, which was filed against an accused and if the convict has been acquitted in the reference or the reference has been withdrawn, even then the conviction under Section 31A of the NAO 1999 remains operative and the convict has to avail remedy, for getting it set aside, by approaching the next higher judicial forum, as envisaged under Section 32 of the NAO 1999.”

The judgment further elaborated the issue in paragraph 72 by stating: “As discussed above, conviction in absentia is a final order, therefore, no other forum can declare such conviction as void, except a judicial forum, that too, by filing an appeal.”

The court, in the above-mentioned paragraphs, was also responding to the list of NRO beneficiaries presented before the Supreme Court by the NAB. Legal experts associated with the Presidency were also trying to interpret the detailed judgment, which, according to some legal experts, required the office of public holder claiming immunity to actually apply before a court of law for a proper legal interpretation.

The prime minister’s thinking on this critical issue, which may decisively influence the future of his government, is sandwiched between the opinions seeking some visible compliance of the judgment and those asking for a clear-cut defiance, reflected in the review petition that was filed last week, citing a number of “mistakes” in the full court judgment, informed sources said.

An authoritative source, citing panic in official circles, reminded that President Asif Ali Zardari still enjoys all powers that former president Musharraf enjoyed as the military ruler. “Do not discount any presidential action because the president’s public stated views on conspiracy against democracy and the system have cemented rapidly in the past two days,” the source said.

[DR MEHMOODZAI]

NRO maker should also be penalised: Justice Raza

ISLAMABAD: Supreme Court Justice Sardar Muhammad Raza Khan on Wednesday added his note to the detailed judgment on the National Reconciliation Ordinance (NRO).

The detailed verdict was announced on Tuesday, which was authored by Chief Justice Iftikhar Muhammad Chaudhry and contained two additional notes of Justice Chaudhry Ejaz Ahmed and Justice Jawad S Khawja, while the third note was added on Wednesday.

Justice Sardar Muhammad Raza Khan, in his four-page note, said the maker of the ordinance should also be brought to accountability. “What about the beneficiary who clearly confessed through the ordinance that many accountability cases were politically motivated, politically indicted, and politically prolonged, obviously as a sword of Damocles?” he raised a question.

The judge further writes that once the NRO 2007 is non est factum, all cases affected thereby will revive from the stage where each was interrupted at. “As it is a matter of national importance, it has to be taken care of. For this purpose, this court has devised a mode of monitoring and also the creation of a monitoring cell. This, but for the terminology used, is not unusual. I would prefer the mode adopted by the court in normal course of action,” he referred to establishment of a monitoring cell in the Supreme Court to oversee progress on such cases.

Terming it an usual practice, Justice Raza says that many a time, in the given circumstances of a particular hearing before this court, various instructions are issued to the executive authorities as well as judicial fora to act in a particular manner for just and expeditious disposal of matters pending before them. [musharaf] [musharaf]

[DR MEHMOODZAI]

NAB bound to seize assets of Zardari, others
By Ansar Abbasi

ISLAMABAD: NAB is bound by the detailed SC judgment on the NRO to freeze the assets of all its accused, including President Asif Ali Zardari. These assets will include the 2,460 kanals of Sangjani land in Islamabad transferred to his company early last year as the same land was included among NAB’s frozen assets as on Oct 4, 2007.

NAB, which did not act in case of the freezing of President Zardari’s assets after the SC’s short order on the NRO, is now expected by the apex court in its detailed judgment to act against all the NRO beneficiaries. In case of freezing the foreign assets, the apex court has directed the federal government to proceed.

Without taking into account any exception or immunity of any public office holder, the SC ordered for the re-opening of all the NRO cases as was the situation on Oct 4, 2007 besides withdrawing all the benefits accrued through the condemned legislation as if the NRO “never took birth”.

It was only to ensure every benefit by every NRO beneficiary is reversed, the apex court declared the law as void ab initio, which means as explained in the judgment “null from the beginning”.

For the confiscation of assets and without giving any immunity to anyone, including President Zardari, the court order said: “The federal government has been empowered to make a request to a foreign state to do any or all things mentioned therein; to freeze assets by whatever processes are lawfully available in that state, to the extent to which the assets are believed, on reasonable grounds, to be situated in that state; and to transfer to Pakistan any such evidence, documents, things, articles, assets or proceeds, realised from the disposal of such articles or assets. As far as, confiscation or realisation of the national wealth, situated within the country, is concerned, there is no difficulty for NAB to deal with it, in accordance with the procedure provided under the NAO, 1999. However, for achieving the object to save the assets outside the country, allegedly belonging to the nation, a mechanism has been provided on the basis of international cooperation.”

After the apex court’s short order of Dec 16, the NAB admitted not to have restored the pre-NRO situation vis-a-vis President Asif Ali Zardari, whose cases remained closed while there were no freezing orders issued regarding his bank account and the moveable and immovable assets.

The Constitution envisages that no criminal proceedings whatsoever shall be instituted or continued against the president or a governor in any court during his term of office, but the NAB had gone an extra mile in favour of the president as it had simply refused to act in any manner against Asif Ali Zardari. Practically owing to NAB’s interpretation of the Constitution, the president continued to be a NRO beneficiary despite the condemnation of the law by the apex court.

In its detailed judgment, however, the Supreme Court referred to the list of NRO beneficiaries (containing on top Zardari’s name) as produced before it by NAB, and directed for reopening of cases of “all” of them beside withdrawing the benefits of each and every one of those who had benefited from the NRO.

Because of the apex court’s judgment, the president in addition to facing possible freezing/confiscation of his property, is also in danger of losing the recently acquired 2,460 kanal (307 acres) of Sangjani land in Islamabad, which was a frozen asset before the promulgation of the NRO but allowed to be transferred early this year following NAB orders. Chairman PPP Bilawal Zardari Bhutto also shares the same property with his father. As per the Supreme Courtís order, the land stands reverted to its last owner and the alleged front man of the president — Nasir Khan.

In a controversial way, the land that was apparently purchased in the name of Nasir Khan during Benazir Bhutto’s second tenure but alleged to be the property of Zardari was transferred in the name of Park Lane Estate Private Limited — jointly owned by President Asif Ali Zardari, his son Bilawal Zardari and a few others — early this year.

Prior to the issuance of the NRO, the same land was one of the frozen assets and its legal owner Nasir Khan was not allowed to sell the property, which was also reflected in the assets cases of both Benazir Bhutto and Asif Ali Zardari before October 5, 2007 when the NRO was promulgated.

Additionally, neither the Park Land Estate in whose name the land was transferred enjoys any constitutional immunity for the reason that one of its directors is the president of Pakistan nor Article 248 of the Constitution protects the president from any civil suit. Instead in this case, the president is said to have violated the Constitution as he, besides being the head of the state, is director of a private company.

The Park Lane apparently purchased 2,460 Kanals (307 acres) in March 2009, valued at a CDA price of over Rs 2 billion, for a mere Rs 62 million from Nasir Khan. On February 19, 2009, almost one month before the transfer of the same land, the then chief of staff NAB Brig (retd) Muhammad Ashfaq Ashraf wrote a formal letter to the deputy commissioner, Islamabad, conveying he Bureau’s order regarding unfreezing of the property of Nasir Khan. The said order of the NAB made the transfer possible.

Senator Saifur Rehman in 1997-98 made a case against Zardari for allegedly buying the same land in the name of his alleged frontman Nasir Khan. The deal which Zardari was accused of in 1998, was thus completed this March, 13 years later, after a complex process of legal cases, suits and counter-suits, between a person once declared by the then government as a front man of Asif Ali Zardari, another person believed to be closely associated with the president and a private company that is jointly owned by the president, his son and a few others.

According to Supreme Courtís judgment all the references and cases against all NRO beneficiaries stand revived on the position of October 5, 2007. On October 5, 2007 Nasir Khan was the legal owner of the Sangjiani land. To unfreeze this frozen property early last year, it is said, President Zardari’s close friend Faisal Sakhi Butt, produced a NAB’s letter before the deputy commissioner Islamabad.