ISLAMABAD Justice Sardar Muhammad Raza Khan who was a member of the 17-judge Supreme Court bench which declared the National Reconciliation Ordinance (NRO) unconstitutional has stressed the need of also punishing the maker of the ordinance for perpetuating corruption and violating the Constitution.
“The maker (former president Pervez Musharraf) of the ordinance should also be brought to accountability for perpetuating corruption and for violating the Constitution,” the judge suggested in his additional note that to many appeared to be a dissenting note.
On Tuesday night, the court released the detailed judgment authored by Chief Justice Iftikhar Mohammed Chaudhry which directed that cases against NRO beneficiaries be revived and acquittals reversed. It has put PPP parliamentarians, cabinet members and President Asif Zardari in a quandary.
The judgment also ordered the federal government to take immediate steps to seek revival of original requests or claims for mutual legal assistance to pursue money-laundering cases pending in foreign countries, including Switzerland, amounting to $60 million.
Although the judgment was unanimous, Justice Sardar Muhammad Raza, Justice Chaudhry Ijaz Ahmed and Justice Jawwad S. Khwaja wrote additional notes.
“No doubt,” observed Justice Raza in his note which was released on Wednesday, “such beneficiary was not a party to the present petitions but so were the other beneficiaries taken care of in our judgment.
“Moreover, this court has, on many occasions, given verdict against persons not party to the proceedings (referring to last year's July 31 judgment under which several superior court judges who took oath under the PCO but were not party to the petition were fired). All beneficiaries of the NRO, are to be dealt with equally, equitably and without discrimination. If one is proceeded against, the other must also be,” the note emphasised.
Referring to the direction to set up monitoring cells to supervise progress and proceedings in accountability courts, the note suggested that NAB cases should not be dealt with in an exceptional manner.
The Supreme Court has never adhered to suo motu monitoring during the stage of investigation or trial out of dignity, grace and judicial unconcern, the note said, adding that the apex court, therefore, should monitor every wrong but on the application of the aggrieved party.
There are millions of cases pending in trial courts of the country but the high courts or the Supreme Court never monitor these cases through a particular cell unless the wrong done is brought to its notice.
“I am, therefore, of the view that this court should monitor the cases related to the non est NRO 2007 in usual manner that it normally adheres to,” Justice Raza observed.
The normal course is that orders are passed and directions issued to the lower forum in a matter pending before such forum, during hearing under appellate, review or constitutional jurisdiction of the court.
“After having passed such orders or directions for proper, just and smooth disposal of cases, this court retreats into an aura of judicial unconcern, without being over indulgent,” he observed.
The same should be the normal course for cases pending under the NAB ordinance. This court is to monitor such cases and pass appropriate orders only when, in each particular case, the violation of this judgment, is brought to its notice by any aggrieved party, prosecution or the defence.
The judge also raised questions about the beneficiary who clearly confessed through the ordinance (NRO) that many accountability cases were politically motivated, politically indicted and politically prolonged, obviously as a sword of Damocles.
“If politically motivated, why were those indicted. If genuine, why those were dishonestly prolonged and no verdict was obtained against the accused involved,” the judge asked.
“We have much dilated upon but the adventures of one set of beneficiaries whose cases, after revival, are supposed to be pending before the relevant forums. Any observation by this court about such pending cases shall not affect or influence the trial courts; but what about the beneficiary about whose action we have given absolute and conclusive decision, that it was void ab initio,” the note said.
Justice Chaudhry Ijaz Ahmed in his additional note observed that the NRO was not framed for the welfare of the people of Pakistan but by the former president for his own benefit and for the benefit of the other privileged class.
Though the president enjoyed the power to pardon by virtue of Article 45 of the Constitution, he had no right whatsoever to give a clean chit or to withdraw the case of a complainant whose near relations were murdered.
“We have heard from all sides that corruption, in recent years, spread even to those levels of administration from which it was conspicuously absent in the past.
“We wish we could confidently and without reservation assert that at the political level ministers, legislators, party officials were free from the malady,” the judge said.
Justice Ahmed also deplored that the anti-corruption and penal laws had remained ineffective due to their inherent defect in adequately meeting the fast multitudinous growth of corruption and bribery. “Corruption in high places has remained unearthed leading to a popular belief that immunity is attached to them.”