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Supreme Court declares NRO null and void

December 17, 2009

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Senior Lawyers Dr Mubashir and Abdul Hafeez Pirzada congratulate each other after the judgment regarding the NRO case.&m
Senior Lawyers Dr Mubashir and Abdul Hafeez Pirzada congratulate each other after the judgment regarding the NRO case.—Online
ISLAMABAD In what has been billed as a verdict that may change the course of country's political history, the Supreme Court on Wednesday declared the controversial National Reconciliation Ordinance (NRO) as never to have existed and against the Constitution by reviving all cases and reversing acquittals of its beneficiaries, thus putting the PPP parliamentarians and cabinet members and President Asif Zardari in a quandary.

In a late-night short order that has no parallel in country's judicial history, the 17-judge bench, headed by Chief Justice Iftikhar Mohammed Chaudhry, ordered the federal government to take immediate steps to seek revival of the original requests or claims for mutual legal assistance to pursue money laundering cases pending in foreign countries, including Switzerland.

Historic as it is, the Supreme Court verdict has also raised as many questions as it has answered regarding the fate of the cases. Perhaps in coming days and weeks it may become clear if the cases in Switzerland can at all be revived because, according to legal experts, the Swiss legal system does not have any such provision.

Since the verdict has not directly touched the immunity issue of the president, legal opinion remains divided on whether President Zardari can be prosecuted on the basis of corruption cases as they existed before the promulgation of NRO on Oct 5, 2007.

Similarly, fate of those who were convicted in absentia and are at present members of parliament or even in the cabinet also hangs in the balance and depends on the view and action of National Assembly Speaker Fehmida Mirza and Senate Chairman Farooq Naek.

Equally important will be the reaction of the MQM as a number of its leaders and members were direct beneficiaries of the NRO in thousands of criminal cases that the party has always dismissed as politically motivated, but now stand revived as a result of the verdict.

Authored by the Chief Justice himself, the 18-page verdict was quite clear on many points as it also revived all convictions or sentences under section 31-A of the NAB Ordinance that deals with punishment to an absconder after declaring him proclaimed offender. Since the NRO has been declared void ab initio, any benefit derived by any person in pursuance of Section 6 (amendment in section 31-A of the NAB Ordinance) will also be deemed never to have legally accrued to any such person, and consequently, of no legal effect. It held that cases under investigation or pending inquiry and which had either been withdrawn or where the inquiry had been terminated on account of the NRO shall also stand revived and the authorities shall proceed in the said matters in accordance with law.

As a consequence of the declaration, the judgment said, all cases in which the accused persons were either discharged or acquitted under Section 2 of NRO (amendment in Section 494 of the Criminal Procedure Code) or where proceedings pending against the holders of public office had been wound up in view of Section 7 shall revert to the pre-Oct 5, 2007, position.

All courts, including the trial, the appellate and the revision courts, were ordered to summon the persons accused in such cases and then to proceed from the stage from where proceedings were closed under the NRO.

The federal government, all provincial governments and all relevant and competent authorities, including NAB Prosecutor General Dr Danishwar, the special prosecutors in accountability courts, the prosecutors general in the four provinces and other officers or officials involved in the prosecution of criminal offenders, were also directed to offer every possible assistance required by the courts in this connection.

The court also ordered the federal government and other competent authorities to proceed against former attorney general Malik Mohammad Qayyum by declaring unauthorised, unconstitutional and illegal his acts of writing to various authorities/courts in foreign countries, including Switzerland.

The court noted that no order or any authority was established authorising the former AG to address unauthorised communications and thus the conduct of Malik Qayyum resulted in unlawful abandonment of claims of the government to huge amounts of the allegedly laundered money lying in foreign countries, including Switzerland.

The court also expressed its displeasure over the conduct and lack of proper and honest assistance and cooperation to the court by NAB Chairman Nawid Ahsan, the prosecutor general of the NAB and of Additional Prosecutor General Abdul Baseer Qureshi. It suggested the federal government to appoint competent, honest persons who fulfil the criteria outlined in Section 6 of the NAB Ordinance. The court asked the government to go through its observations in the Asfandyar Wali case. The verdict regretted that the conduct of NAB's bosses made it impossible for the court to trust them.

However, till such fresh appointments the present incumbents may continue to discharge their obligations strictly in accordance with law, but obligated them to transmit periodical reports of the actions taken by them to the monitoring cell of this Court, which is being established through succeeding parts of this judgment.

The cell so established in the Supreme Court will comprise the chief justice or any judge to be nominated by him to monitor the progress and the proceedings in the cases under the NAB Ordinance.

Similar cells will also be set up in the high courts of all the provinces.

The law secretary was directed to take steps to increase the number of accountability courts to ensure expeditious disposal of cases.