Though the federation claims that it did not defend the controversial National Reconciliation Ordinance (NRO) in the Supreme Court, on Monday it went for protection of benefits derived from the legislation particularly closure of Swiss corruption cases, saying ordering the cases revival is tantamount to trial of Shaheed Benazir Bhutto's Mazaar.
"Giving order of opening the cases abroad (Switzerland) is tantamount to holding the trial of Shaheed Benazir Bhuttoo's Mazaar, which mars all norms of justice, decency, morality and law," said an amended review petition filed by the federation through Barrister Kamal Azfar.
The review petition contended that the SC committed several dozen errors in striking down the NRO, while giving arguments in support of the ordinance. "The federation was condemned unheard on numerous important issues decided in the detailed judgement in breach of the time-honoured judicial principle of natural justice--the opportunity to be heard," said the petition.
Earlier, on December 16, 2009, a 17-member bench of the apex court had struck down the NRO and declared void ab initio, saying it was meant, "to give benefit to a certain class of people" and violated the Constitution.
As a consequence of the said declaration, "all steps taken, actions suffered, and all orders passed by whatever authority, any orders passed by the courts of law including the orders of discharge and acquittals recorded in favour of the accused persons, are also declared never to have existed in the eyes of law and resultantly of no legal effect", said the short order.
In addition, court had directed the government to contact Swiss authorities for revival of Mutual Legal Assistance as withdrawal of the cases against President Asif Ali Zardari in Switzerland, ordered by the former Attorney General, Malik Qayyum, was illegal, unconstitutional and unauthorised. Federation filed a review petition on January 16, which was returned by the court after raising some technical objections.
Defending the closure of proceedings at Swiss courts, the federation has questioned the legality of mutual legal assistance regarding Swiss cases by saying that the letter dated October 7, 1997 written by the former Attorney General late Chaudhry Muhammad Farooq, false proceedings were triggered in the name of so-called mutual assistance against Benazir Bhuttoo and Begum Nusrat Bhutto along with co-accused.
"The malice of the then government was evident from the averments of the letter which itself says that it is written at the behest of Saifur Rehman, the then chairman Ehtsab Bureau, it added.
Having said so, it said that the SC failed to consider the order of Public Prosecutor of Republic and Canton of Geneva dated August 25, 2008. The order regarding closure of pending proceedings in Switzerland, according to the federation, was not issued due to Attorney General of Pakistan's request (letter of May 22, 2008) but after the examination of merits of the case. The court on December 16, 2009 had held that NRO was not meant for national reconciliation as it was designed to benefit the selected few.
Addressing this question, the amended review petition further says that the SC erred in holding that the NRO was not promulgated for National Reconciliation but for achieving the objectives, which absolutely has no nexus with national reconciliation because the nation of Pakistan as a whole has not derived any benefit from the same and in describing it as a deal and individual reconciliation is factually incorrect.
"The court failed to take note of the preamble of NRO which makes it abundantly clear that the purpose of the NRO through its various sections was to promote national reconciliation and that desired purpose was achieved," the petition adds.
In an attempt to defend the NRO, the federation further went on saying that the NRO enabled the leaders of the main political parties to return to Pakistan and participate in free and fair elections to pave the way for transition from military dictatorship to democracy.
This process of reconciliation eventually led to the restoration of democracy and release of detained judges and their eventual restoration by the democratic government. "The nation as a whole did derive the benefit from the NRO in return to democracy, a military dictator shedding his uniform and a better political atmosphere of tolerance between government and the opposition parties."
The NRO cannot be regarded as individual or a deal between two individuals as it was legally promulgated by the President under Article 89 of the Constitution having acted upon a summary from the cabinet which indicates that the then government fully supported it. The federation even went for defence of NRO's promulgation saying "under the constitutional scheme of Pakistan, which provides trichotomy of powers, promulgation of NRO was well within the framework of the Constitution."
It further says that this court in its July 31, 2009 judgement gave the legislature four months to pass the NRO into law that by making decision this court accepted that the NRO was not non-est (never existed) and that it had been legally promulgated by the President under the Constitution.
"That under Article 89, the NRO stood repealed on February 4, 2008 or at least on August 1, 2009 as this court had no power to extend an ordinance promulgated under Article 89 of the Constitution and as such under Article 264 all benefits acquired under the NRO before November 4, 2009 or August 1, 2009 at the latest stood protected," it added.
"There is no need of short order or detailed judgement of the SC after the NRO was not passed by the Parliament of Pakistan. Certain portions of the judgement where references were made to the legislation, it reflects adversely upon the supremacy of the elected parliament which represents the will of the 170 million people of Pakistan.
It is important to note that in all legislation which are temporary or permanent including other enactment and legal instruments it is tight and constitutional mandate of Senate of Pakistan, National Assembly as well as the President to pass bills or promulgate ordinance, which are in consonance with the preamble and rights of the people granted by the Constitution," it added.
In addition, the review petition said, the court had failed to consider the doctrine of past and closed transaction, while passing the short order. That admittedly NRO was past and closed transaction and it was dead piece of legislation when it was taken up for discussion during the proceedings of the instant case.
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