SC order on Swiss letter 'unconstitutional'

Declining to implement Supreme Court's (SC) December 16, 2009 judgement on the NRO case, the government on Tuesday said the premier is not authorised to write letter to Swiss authorities to re-open cases against President Asif Zardari without the advice of the federal cabinet. Submitting its reply, the federation through Attorney General (AG) Irfan Qadir in the NRO judgement implementation case requested the court to recall its subsequent orders passed on June 26 and July 12, directing the prime minister to implement Para 178 of the judgement. Meanwhile, the SC returned the reply of the federation with declaration that it was inadmissible under Order X Rule 2 of the Supreme Court Rules 1980. The SC registrar's office however, said that the only remedy available was to file review under Order XXVI of SC Rules 1980 if so desired. A five-member bench, led by Justice Asif Saeed Khosa, is taking up NRO judgement implementation case today (Wednesday). A law expert said that the government had not finalised its strategy on whether it would file a review petition or challenge the registrar office's objections before the bench today. He said that the government would oppose the formation of the commission into writing a letter to the Swiss authorities. After the disqualification of former premier Yousaf Raza Gilani, a number of top jurists have suggested the SC to use its option of judicial commission regarding the implementation of court's December 16, 2009 judgement, because taking action against the country's chief executive again and again would severely damage Pakistan's image internationally. While filing reply, the AG pleaded that the subsequent orders of the court on June 26 and July 12 were not in accordance with law, rules and the constitution of Pakistan and required re-consideration/hearing for the purpose of rendering complete justice. The federation contended that the incumbent PM had not reviewed any advice from the cabinet related to implementing Para 178 of the NRO judgement, so he was not obliged constitutionally to implement the order of the court. The federation also said in its reply that the premier could comply with the court orders on the judgement (Para 178) if he was advised to write the letter to the Swiss authorities by the federal cabinet. The federation said further that implementation of Para 178 of the NRO judgement was therefore one of the collective responsibility of the federal cabinet under Rule 6 of the Rules of Business and Clause 6 of Article 91 of the constitution. "The prime minister cannot comply with Para 178 except on the advice of the cabinet, which is mandatory required to be referred to the cabinet for discussion or advice under Rule 16," the AG said. "The resultant effect of the said orders is tantamount to clear-cut violation of Article 248(2) of the constitution and the PM by virtue of his oath is bound to preserve and to protect the constitution", he also contended. He said that there was no occasion for the seven-member bench to have called the former PM thrice in the court during hearings of the case and that too was an utter disregard of the constitution and the law. "The prime minister cannot be asked by means of the aforesaid orders for implementation of an un-implementable direction given by the Supreme Court," the federation concluded.