ISLAMABAD: In what has been billed as a pleasant softening in its rigid position on the NRO implementation case, the Supreme Court suggested to the government on Wednesday to find a way out of the current impasse between the executive and the judiciary.
During the hearing of the case, a five-judge special bench repeatedly asked the government through the attorney general to use wisdom and find a solution to vindicate the positions of the two institutions perceived to be at logger heads, also implying that it was not in a mood to send another prime minister home and conceding that President Asif Ali Zardari enjoyed immunity from prosecution in criminal cases.
The surprising change in the court’s tough stance came amid widespread speculation that curtains would also fall on the new prime minister, especially against the backdrop of Tuesday’s clear message to the Supreme Court by the government that come what may it was not going to write a letter to the Swiss authorities to reopen graft cases worth $60 million to embarrass President Asif Ali Zardari.
The proceeding in the Courtroom No 2 presided over by Justice Asif Saeed Khosa simply delayed the perceived confrontation for at least two weeks.
The hearing which commenced with a belligerent posture by Attorney General Irfan Qadir who insisted that the NRO judgment was non-implementable and that Justice Khosa should consider withdrawing himself from the bench for having discussed Swiss cases against President Zardari with him in the past, concluded on a positive note.
Although the court expected the government to write the letter, the tone and tenor this time was all together different from what it used to be.
“Attorney General Irfan Qadir has made some submissions but in the end he sought time to make serious and genuine efforts to solve the so-called standoff between the two important and critical institutions of the country,” Justice Khosa observed while dictating an order.
“We trust that the gap between the stated positions of the two institutions is not impossible to bridge and we wish him (AG) well in his efforts to bring acceptable solution to the pending issue,” Justice Khosa observed. But before rising for the day, he pointed to the AG and said: “Now the whole country will not be looking towards us. Don’t disappoint them.”
However, some legal experts have taken Wednesday’s proceedings with a pinch of salt, expressing scepticism that challenges to the new contempt law pending before another five-judge bench was the main reason behind the strategic retreat. They are of the opinion that when the Supreme Court takes up the NRO implementation case next time, the fate of the new law will have been decided by then, leaving the court with a clear direction to move forward.
A senior lawyer said the judges had deflected the mounting criticism being heaped upon the judiciary towards the executive so that next time when an adverse order was issued they might have an excuse that every possible opportunity had been provided for resolving the controversy.
Later addressing a press conference, Information Minister Qamar Zaman Kaira also endorsed the attorney general’s opinion that Justice Khosa should recuse himself from the bench because concerns were being expressed about his observations in the NRO case.
It all started when the AG argued that the Supreme Court should not monitor cases in the National Accountability Bureau, adding that no officer of the bureau was bound to report to the apex court.
When Justice Khosa asked whether the court’s directives for writing the letter to Swiss authorities had been followed, the AG retorted that he should recuse himself for being biased.
“You are only trying to block the case’s proceedings, but you can find a solution to the issue if you wish to,” Justice Khosa said, adding: “Let’s solve this, we are not against the system, any person or any office, but at the same time we don’t want to compromise our position.” He also explained that he didn’t know whether he should say these things or not.
And pointing towards the AG, Justice Khosa said: “We have been friends for 30 years and we are ready to help and we have no personal interests against any national party. We know the economy has nosedived and the political instability is killing us.”
Justice Khosa rejected a request by the attorney general to take up the matter after Eid holidays and said time should not be wasted when ‘Razinama’ (settlement) was being reached.
“This (NRO implementation) is our national issue and you (the executive) have to take a political decision for safeguarding courts. Let’s be honest this is our country and we have to sink and swim together,” Justice Khosa said, adding that it was always difficult for a court of law to go back on its decisions as the room for manoeuvring for courts was very limited. But there were ways for reopening things, he added.
“Politics is the name of adjustments, politicians are trained for this. Therefore, adjustments from your end will be more flexible,” the court said.
“This bending has broken us,” the AG said.
Justice Khosa suggested to the AG to find a way so that the positions of both the institutions were vindicated. It’s only a matter of using the head wisely, he observed.
Referring to the contempt case against former prime minister Yousuf Raza Gilani, Justice Khosa recalled that the issue of presidential immunity had never been discussed and the court went up to the last limit before deciding against the former prime minister.
“For God sake don’t jump towards a confrontational stage where you start thinking that courts will guillotine you instead of giving time,” Justice Khosa said, adding: “You just have to write to Swiss authorities to ignore the earlier letter of former AG Malik Qayyum for closing the money laundering cases.”
He also accepted the stated position of the PPP that the president enjoyed immunity. “We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.
Meanwhile, NAB Prosecutor General K.K. Agha informed the court that the bureau was in the process of submitting a reference against three persons in a case of Ahmed Riaz Sheikh, former additional director general of the Federal Investigation Agency and one of the beneficiaries of the National Reconciliation Ordinance.