The government may have wanted to buy time for the premier by filing a review petition, but the court has informed it that an unsuccessful review will actually end up speeding up the process against the prime minister.
Hearing the government’s review petition against its July 12 order (in which Prime Minister Raja Pervaiz Ashraf was directed to write a letter to Swiss authorities to reopen graft cases against the president) on Wednesday, a five-judge bench of the apex court, headed by Justice Asif Saeed Khosa, had some advice for Attorney-General Irfan Qadir: At this stage, it may not be fruitful for the government to exhaust all its options, given that the court could pass an order against the petition.
The government was warned that, if the review is struck down, the likelihood of which is high, then the process of holding the prime minister accountable, possibly even through contempt proceedings, would automatically be fast-tracked – given that future arguments in his defence would then already have been dealt with in this review.
The prime minister has already been given a show-cause notice and been asked to appear before the court on August 27 in connection with the National Reconciliation Ordinance (NRO) judgment implementation case.
Giving the government one day to reconsider its decision to go for a review, the court asked Qadir to consult the government’s legal wizards and seek instructions as to whether or not the government wanted to press the petition.
The appeal was filed by the attorney-general last Wednesday after a show-cause notice was issued to Premier Ashraf after his failure to implement the NRO judgement. Just like the case of former premier Yousaf Raza Gilani, the notice to the incumbent was given under Section 17 of the Contempt of Court Ordinance 2003 read with Article 204 of the Constitution.
A large part of the review petition, and the time it was supposed to consume, depended upon protests against the bench.
The first issue was the fact that one member of the five-member bench hearing the review had been changed. A review petition is supposed to be heard by the same judges who passed the initial order. However, one of the five original judges had gone on leave for religious reasons – leading the government to protest against the “haste” of the apex court. The government asked the court to adjourn the hearing of the review till after the Eidul Fitr holidays – after which that judge would be available.
This contention was, however, shot down by the court.
The attorney-general also requested the formation of a larger bench to hear the review, contending that the Supreme Court’s decision to strike down the contentious Contempt of Court Act 2012 and the government’s review petition in the NRO implementation case were interconnected and a larger bench should be formed.
This plea was also rejected.
There was some respite from what has become almost a scripted back-and-forth between the government and apex court.
At one point during proceedings, the attorney-general said that the government could write a letter if it did not mention the name of the president. At this, the court said that it had actually never asked the government to mention the president’s name – pointing out that the court wanted a letter written to Swiss authorities taking back the “illegal communication of former attorney general Malik Qayyum” – which had resulted in Pakistan removing itself as a party from graft cases against current president Asif Ali Zardari.
The court also re-explained its NRO judgment and said that the prime minister was not required to write the letter himself. In fact, it was his constitutional duty to obey court orders and authorise the relevant office for such communication to invalidate Qayyum’s unauthorised communication. “We are not asking for the prime minister’s handwritten letter,” Justice Khosa clarified.
The hearing of the matter will resume today (Thursday), when the attorney-general will come back with the government’s response to the court’s advice.
Published in The Express Tribune, August 16th, 2012.