ISLAMABAD - The fate of the Gilani-government appeared to be hanging in the balance on Tuesday when a five-member bench of the Supreme Court gave it six options with regard to the implementation of the court’s earlier verdict issued some two years ago, and whatever line of action is adopted by those in power now leaves little room for them to wriggle out.

The decision announced by the country’s top court is the last chance for the government to come up with a clear choice of its future line of action. On January 16, a larger bench, to be constituted on the recommendation of the present one, would take up the long-drawn out issue for a final decision.   

The attorney general for Pakistan, the law secretary, the NAB Chairman and the NAB prosecutor general have been ordered to appear before the bench in person.

Tuesday was a day of suspense as many believed that the court would take some action against those who have been delaying the implementation of the court order and publicly announcing that even in future they would not do what the court wants them to – writing a letter to the Swiss authorities requesting them to open the cases against President Zardari, shelved earlier under a deal between then president Pervez Musharraf and the slain PPP chairperson Benazir Bhutto. On the last date of hearing the court had said in categorical terms that now instead of passing just another order, it would take action.

The court had passed judgment on National Reconciliation Ordinance on December 16, 2009 and had issued very clear and specific directions for its implementation. Later, the court also dismissed a review petition, filed against that judgment, with the directions to implement order without any further loss of time. On Tuesday, the court warned President Zardari and Prime Minister Gilani of disqualification for defying implementation of the NRO verdict.

Justice Asif Saeed Khosa, who headed a five-judge bench, said the prime minister did not appear to be a “sagacious and honest” person as evident from his defiance of the court orders in the National Reconciliation Ordinance (NRO) case.

The bench noted that the president’s interview and the prime minister’s speeches reflected that their loyalty to their party was above their oath to protect the Constitution.

“The court has the option to record findings and hand down a declaration… which would have an effect of a permanent nature when it comes to the prime minister’s qualification to be chosen as a member of the Parliament,” the order stated.

A similar violation of the oath had been committed by the president and the law minister, the bench said.

The bench ordered Attorney General (AG) Maulvi Anwarul Haq to consult with the prime minister and the president for their replies. “Why should the court not exercise these options?” the court said while asking the attorney general to inform after consulting both the leaders. Justice Khosa, who headed the bench, said the court would take unpleasant steps if the government failed to implement the NRO verdict till Monday. The options given by the court include: Contempt proceedings against the chief executive (prime minister), law secretary; to indict under Article 63(1)(g) and declare unqualified to be elected as a member of parliament; proceedings against the president for not honouring the oath; formation of a commission to get the order implemented; leaving the matter to people; and contempt proceedings against the NAB chairman. The court also asked the president to claim immunity if he thought he was above the court order.

The bench also said that National Accountability Bureau (NAB) Chairman Admiral (r) Fasih Bokhari was apparently guilty of misconduct for not taking action against two convicts, who were appointed in the service of Pakistan.

The court had asked the NAB to take action against Ahmed Riaz Sheikh and Adnan A Khwaja, who were appointed as additional director FIA and chairman of the OGDCL respectively.

The bench noted that the federal government and the NAB were not serious in the matter at all and those concerned are only interested in delaying and prolonging the matter on one pretext or another.

The Prime Minister had made an oath to preserve, protect and defend the Constitution. In his oath the Prime Minister had made an unambiguous commitment with Allah Almighty not only to conduct himself completely in accord with the commands and requirements of the Constitution, including those of Articles 2A, 37(d), 189 and 190 thereof, but also totally in sync with the requirements and teachings of the Holy Quran.

The court noted that according to clause (f) of Article 62(1) of the Constitution “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless – he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a court of law”.

By virtue of Article 113 of the Constitution the same qualifications are also required for election to or being chosen as a member of a Provincial Assembly. In the above mentioned backdrop the apparent persistent, obstinate and contumacious resistance, failure or refusal of the Chief Executive of the Federation, i.e. the Prime Minister to completely obey, carry out or execute the directions issued by this Court in the NRO case reflects, at least prima facie, may not be an ‘honest’ person on account of his not being honest to the oath of his office and seemingly he may not be an ‘ameen’ due to his persistent betrayal of the trust reposed in him as a person responsible for preserving, protecting and defending the Constitution and also on account of allowing his personal political interest to influence his official conduct and decisions.

A chosen representative of the people deliberately violating such a sacred trust and disregarding his commitment in that regard with Allah Almighty may hardly qualify to be accepted as ‘ameen’.

The court, in the circumstances of this case, has an option to record a finding in the above mentioned regards and it may hand down a declaration to that effect in terms of clause (f) of Article 62(1) of the Constitution which may have the effect of a permanent clog on the Prime Minister’s qualification for election to or being chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly.

Somewhat similar oaths had also been made by the co-chairperson of the relevant political party before entering upon the office of the President of Pakistan and by the federal minister for law, justice and human rights division before entering upon the office of a federal minister and apparent breaches of their oaths may also entail the same consequences.

The proceedings may be initiated against the chief executive of the federation, i.e. the prime minister, the federal minister and secretary for law, justice for committing contempt of this Court by persistently, obstinately and contumaciously resisting, failing or refusing to implement court directions. It may not be lost sight of that, apart from the other consequences, by virtue of the provisions of clauses (g) and (h) of Article 63(1) read with Article 113 of the Constitution a possible conviction on such a charge may entail a disqualification from being elected or chosen as, and from being, a member of Majlis-e-Shoora (Parliament) or a provincial assembly for at least a period of five years.

In exercise of its powers under Article 187 of the Constitution read with Rules 1 and 2 of Order XXXII of the Supreme Court Rules, 1980 and all other enabling provisions this Court may appoint a Commission to execute the relevant parts of the judgment.

The court noted that in the present proceedings nobody has so far raised the issue pertaining to the protections contemplated by Article 248 of the Constitution yet if anybody likely to be affected by exercise of these options by court wishes to be heard on that question then an opportunity may be afforded to him in that respect before exercise of any of these options.

It is a statutory duty of the chairman NAB under the National Accountability Ordinance, 1999 to proceed against any person prima facie involved in misuse of authority while holding a public office. On the previous date of hearing the court had directed the Chairman to attend to the matters of appointment of Adnan Khawaja as Managing Director of the Oil and Gas Development Company Limited (OGDCL) against merit and appointment/promotion of Mr. Ahmed Riaz Sheikh as Additional Director, Federal Investigation Agency (FIA) at a time when both of them were convicted persons and to proceed against all those who were responsible for such appointments/promotion.

The chairman has also failed so far to initiate any action against Malik Muhammad Qayyum, former attorney-general for Pakistan, in view of the direction issued in that regard in the judgment.

The chairman appeared before this court in person and not only failed to advance any satisfactory explanation for his inaction in taking action against Adnan Khawaja and Ahmed Riaz but has also manifested defiance by categorically refusing to carry out the directions issued by this Court. The court noted that such inaction on his part in derogation of his statutory duty prima facie amounts to misconduct attracting the last part of section 6(b)(i) of the National Accountability Ordinance, 1999 dealing with removal of the chairman from his office.

The court observed that impression has attempted to screen, shield and protect the relevant persons from criminal charges, which may attract consequences in some criminal and other laws. In these circumstances appropriate recommendations or directions may be made or issued by this Court in such regards.

The tri-chotomy and separation of powers between the Legislature, the Judiciary and the Executive is very delicately poised and if in a given situation the Executive is bent upon defying a final judicial verdict and is ready to go to any limit in such defiance then instead of insisting upon the Executive to implement the judicial verdict and thereby running the risk of bringing down the constitutional structure itself this Court may exercise judicial restraint and leave the matter to the better judgment of the people of the country or their representatives in the Parliament to appropriately deal with the delinquent.

The Attorney General is directed that on next date of hearing, after obtaining instructions from concerned, as to why any of the above mentioned options may not be exercised by us in these matters.

The Attorney General for Pakistan was directed to inform all such persons about the passage of this order and also about the next date of hearing.

On account of constitutional importance of the matter the Chief Justice was requested to consider hearing of these matters on the next date of hearing by a larger bench.

Earlier, the court heard attorney general for Pakistan, the chairman and the prosecutor-general National Accountability Bureau (NAB). The PG NAB submitted and read out two reports wherein it has categorically been concluded that the National Accountability Bureau has decided not to proceed in Adnan Khawaja and Ahmad Riaz Sheikh matters despite clear directions issued by this Court.

The court rejected the reports, saying an attempt has been made through the reports to screen, shield and protect all those in public offices who were involved in appointments/promotion of the said Mr. Khawaja and Mr Riaz.

Upon the court query the prosecutor-general accountability confirmed about the lack of criminal intent of all concerned and involved has been recorded without even holding a formal inquiry or investigation, which the court found strange and unusual.

The federal secretary law and justice, who also did not appear before the court was not absent in the Tuesday proceeding. The attorney general informed the court that the secretary is abroad as he is receiving medical treatment produced nothing in that regard to substantiate the fact.

Attorney General for Pakistan Maulvi Anwar-ul-Haq stated that there is no change in the situation since the last date of hearing and no step in furtherance of this Court’s earlier directions has been taken by anybody.

Ahsan Raja ex-Additional Secretary Ministry of Interior tried to convince the court that he had no malicious intent in the matter of promotion of Ahmad Riaz.