Posted by: Rehan Today | January 20, 2010

No law could be made which perpetuated corruption: SC releases detailed ruling in NRO case


ISLAMABAD: The Supreme Court released on Tuesday its detailed judgment on petitions against the controversial National Reconciliation Ordinance.


No law could be made which perpetuated corruption and corrupt practices, instead of eliminating exploitation of the citizens, declared the judgment authored by Chief Justice Iftikhar Mohammed Chaudhry.

“The president who is under oath to protect the Constitution in all circumstances is not competent to promulgate an ordinance in the name of national reconciliation which is beyond the scope of the federal as well as the concurrent lists of the Constitution,” the detailed judgment said, adding that any action on the president’s part which negated the dictates of the Constitution, including fundamental rights, would amount to promulgating a law which was neither acceptable to the nation nor internationally, being not in line with the dictates of the Constitution.

Headed by Chief Justice Iftikhar Chaudhry, the 17-judge bench, on Dec 16 last year, had revived and reversed acquittals of people who benefited from the NRO, putting PPP parliamentarians, cabinet members and President Asif Zardari in a quandary.

The court had also asked 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. On Saturday, the government had filed a review petition against the Supreme Court decision declaring the NRO unconstitutional. It challenged the court’s directive for taking measures to reopen money laundering cases and said the authority to issue such directives or requests regarding status of cases outside Pakistan fell exclusively within the purview of the executive.

The detailed verdict was circulated among all judges of the bench. Although all of them had signed the verdict, three judges — Justice Sardar Mohammad Raza Khan, Justice Chaudhry Ijaz Ahmed and Justice Jawwad S. Khwaja — added supporting notes. Justice Khalil-ur-Rehman Ramday signed the judgment on Jan 12 — the day of his retirement.

The detailed verdict said: “A thorough perusal of the federal and the concurrent list persuades us to hold that the president was not empowered to issue NRO 2007.

“The object of providing guarantee to peace, welfare and amity of the people can only be achieved if the moral or ethical values, the desires of the nation, have been transformed into a legally enforceable formulation.

“In the instant case, the parliamentarians, by their high moral conduct, have already demonstrated, by not allowing the NRO, 2007, to become the Act of the Parliament.

“Citing a book tilted ‘Muhammad (PBUH) Encyclopaedia of Seerah’, which envisages that principle of equality in Islam is an essential requisite of justice because when there is discrimination and partiality between the people, there is no justice. The NRO was not even in consonance with the injunctions of Islam.

“Section 33F of the NAB Ordinance 1999, under Section 7 of the NRO, has not only made classification between the general public and the ‘holders of public office’ but also amongst the ‘holders of public office’ on account of time period, as well, on the basis of which, benefit to a particular class i.e. the persons against whom the proceedings were initiated prior to October 12, 1999, was extended on the criteria that prolonged proceeding were pending against them.

“Instead of withdrawing or terminating the corruption cases pending before accountability courts, mechanism should have been followed for the disposal of cases by increasing manpower of investigating agencies and the number of courts.

“Article 37 of the Constitution casts a duty upon the state to ensure inexpensive and expeditious justice. Therefore, the government by invoking this provision could increase the number of courts and para-legal staff to ensure expeditious disposal of the cases of persons charged for different offences.

“The Supreme Court, while interpreting different provisions of the Constitution, has an authority to make an observation with an object that the state must realise its duty. The court is empowered to pass appropriate orders, as it deemed fit under Article 187 of the Constitution as well as keeping in view the earlier precedents providing for monitoring of the cases pending in the courts and the increase in number of courts.”

Justice Jawwad Khwaja in his additional note observed that the concept of “tauba” (remorse) and sincere repentance, coupled with restitution of any ill-gotten gains and the expression of genuine remorse for past excesses, provided an age-old matrix for fostering reconciliation.

“It has been applied successfully in ancient as well as modern societies, the most recent example being that of South Africa where a Truth and Reconciliation Commission has been able to bring about a genuine national reconciliation between staunch opponents divided, among other things, by race and embittered by decades of apartheid,” the note said.

How Philippines recovered Marcos money There are so many other countries, on whose demand, subject to determination, the wealth of the nation was reverted back to those states. In this behalf reference may be made to the case of Ferdinand Emmanuel Edralin Marcos, President of the Philippines…

Marcos was elected as President of Philippines in November 1965 and re-elected in 1969. On Sept 21, 1972, he declared Martial Law in the country which was lifted on Jan 7, 1981.

He was re-elected as president in 1981 and remained on this position till February 1986, when he was removed through a popular revolt in 1986. In 1986, on the basis of documents lost by him in the presidential palace, assets worth $356 million were discovered in his name in Swiss Banks. The said assets were freezed on the request filed through Swiss lawyers in February 1986…

On Feb 28, 1986, the Philippine Presidential Commission on Good Government (PCGG) formed under the Presidential Order No 1 of 1986 to recover Marcos-linked assets in the Philippines and abroad…

Afterwards the Federal Supreme Court of Switzerland vide partial decision dated Aug 18, 2006, freezed the assets of GEI Inc (owned by Marcos/associates) and set a deadline of Dec 31, 2006, for filing or decision of the court of first instance about the seizure of said assets, which was provided on Dec 28, 2006. The beneficiaries/associates of Marcos filed appeals which were dismissed vide order dated June 1, 2007…

It may be noted that on account of above proceedings against Marcos, the money/funds belonging to the Philippine government were returned by the Swiss courts.—Excerpts from the judgment.

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