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Saturday, December 12, 2009

Govt. presses SC not to go beyond NRO pleas

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The government filed a petition in the Supreme Court on Thursday, contending that any decision on the National Reconciliation Ordinance (NRO) outside the scope of what the challengers had sought could destabilise the democratic system.

After remaining silent for four days, the government filed the petition through its newly appointed counsel Kamal Azfar to present its view on how the slightest mishandling could have repercussions for the entire system.

‘Pakistan today is poised at the crossroads. One road leads to a truly federal democratic welfare state with a balance of power among an independent judiciary, a duly elected government representing the will of the people and a determined executive which is fighting the war against terrorism and poverty,’ said the 12-page petition.

The second road leads to destabilisation of the rule of law, it said. ‘The people of Pakistan await your verdict,’ the petition contended, stressing that certain issues had been raised for the first time during the hearing which were not part of the petitions or the prayer and, therefore, contrary to the settled law enunciated by the court that arguments be confined to legal issues.

Acting Attorney General Shah Khawar repeated the government’s stance that it was not defending the NRO ‘from its inception till end’.

Chief Justice Iftikhar Mohammad Chaudhry made it clear that the court was also a supporter of the system. ‘We are telling everyone loud and clear that we are not going to derail the system.’

‘We had to hear many things after our July 31 judgment in which we supported the system,’ the chief justice said. ‘We would not be transgressing from the job assigned to us.’

Advocate Ibrahim Satti, representing Fazal Ahmed Jat, an officer of the Federal Investigation Agency facing a NAB reference, was the only counsel who supported the NRO because, he contended, it was not a bad law and its benefit should also be extended to his client.

‘If the ordinance is declared valid by this court and its benefit is extended even to a single person then my client is also entitled,’ he argued, saying it was a valid piece of legislation and did not impinge on any fundamental right.

He said every effort should be made to save the law instead of destroying it, an observation made by the court in numerous judgments.

The atmosphere became tense when the counsel, on a query by Justice Chaudhry Ijaz Ahmed, said the bench was hearing one-sided arguments against the NRO and his endeavour would be to change ‘what mind has been made up by the court’.

‘Where is the fault of ours if the government is not defending the NRO,’ Justice Khalilur Rehman Ramday observed.

The chief justice clarified that the bench had not made up its mind and he still had no idea about the fate of the ordinance.

‘This is not the way to reply. I am a down-to-earth man and am not bothered about my judgeship,’ Justice Ijaz observed. He said he had also said so while leaving the office on Nov 2, 2007, (a day before all the judges were sacked by former president Pervez Musharraf).

‘God Almighty will save me and I am even ready now to quit the bench,’ he said.

‘I will withdraw my petition if the lordship is offended,’ Advocate Satti said.

Both apologised to each other and Justice Ijaz said he would be the last person to have malice against anyone.

Referring to the urgency in promulgating the ordinance whose draft was initiated and sent to the cabinet on Oct 5, 2007, and then sent to the law ministry and former president Pervez Musharraf the same day for promulgation, Satti said the entire ‘game plan’ had been settled outside the country.

He said the then government was apprehending some adverse decisions by the Supreme Court which could have upset the presidential elections which were being held on Oct 6.

Emergency was clamped on Nov 3, 2007, because the apex court was due to begin proceedings against the NRO around the time, he said.

‘It means that it was the chief justice who was responsible for sending us all home,’ Justice Ramday observed in a lighter vein. ‘I was under an impression that it was someone else,’ he said.

He said: ‘We should be proud of the fact that even those who benefited from the NRO refrained from supporting the law in the National Assembly. This is collective conscience.’

Senior counsel Abdul Hafeez Pirzada represented Dr Mubashir Hassan, Advocate Mohammad Ikram Chaudhry appeared on behalf of Roedad Khan while Barrister Farooq Hassan represented former Jamaat-i-Islami chief Qazi Hussain Ahmed. The three lawyers and petitioner Tariq Assad concluded their arguments on Thursday.

The Supreme Court allowed Dr Mubashir against the usual norm to say that it did not need to invoke any doctrine of necessity because the people were with it and no president, prime minister, governor or general could dare defy its decision.

‘The state of Pakistan has been broken apart and it is the duty of all of us to put it back on rail,’ he said, recalling that under Article 7 of the Constitution it was the duty of the third organ of the state to come to the rescue when two of its limbs became dysfunctional.

Punjab Chief Minister Shahbaz Sharif also filed an appeal to restore his petition challenging the NRO. It had been dismissed for non-prosecution by a bench headed by Justice Abdul Hameed Dogar.

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