Tuesday, January 10, 2012

Prime Minister Gilani is Not an Honest Man: Supreme Court Order

Prime Minister Gilani is Not an Honest Man: Supreme Court Order

کیا وزیر اعظم کے خلاف توھین عدالت کے تحت کاروائی کی جائے یا عدالت تحمل کا مظاہرہ کرے اور فیصلہ عوام پر چھوڑ دے- فیصلہ 16 جنوری کو لارجر بنچ کرے گا: سپریم کورٹ

  • Prime Minister has violated his oath. Prima facie PM is not an honest man. Under Article 190 all state institutions are bound to help the court. Larger bench proposed to takeup the matter on January 16, 2012.
    · ·
  • This order may be read in continuation of the order passed by this Court on the last date of

    hearing, i.e. 03.01.2012.

    2. We have heard the learned Attorney-General for Pakistan,

    the Chairman, National Accountability Bureau and the learned

    Prosecutor-General Accountability and have been dismayed by the

    fact no progress worth any mention has been made by all

    concerned in the matters mentioned in the order dated

    03.01.2012. The learned Prosecutor-General Accountability has

    submitted and read out two reports dated 09.01.2012 wherein it

    has categorically been concluded that the National Accountability

    Bureau has decided not to proceed in the matters of Mr. Adnan

    Khawaja and Mr. Ahmad Riaz Sheikh despite clear directions

    issued by this Court in those regards earlier on. The said reports

    have been found by us to be utterly unsatisfactory and we find that

    an attempt has been made through the said reports to screen,

    shield and protect all those in public offices who were involved in

    appointments/promotion of the said convicted persons. Upon our

    query the learned Prosecutor-General Accountability has confirmed

    the fact that in the reports mentioned above a clear conclusion

    about lack of criminal intent of all concerned and involved has

    been recorded without even holding a formal inquiry or

    investigation, which we have found to be strange and unusual. The

    learned Prosecutor-General Accountability has gone on to submit

    that even in the matter of proceeding against Malik Muhammad

    Qayyum, a former Attorney-General for Pakistan, a decision has

    been taken by the National Accountability Bureau not to initiate or

    take any proceeding despite a clear direction having been issued by

    this Court in that respect. The Chairman, National Accountability

    Bureau has not only owned the above mentioned reports but has

    adopted a defiant attitude by stating before us that the decision

    whether to proceed against any person under the National

    Accountability Ordinance, 1999 or not is a decision which falls

    within his exclusive jurisdiction and he has decided not to proceed

    against any person in the matters of Mr. Adnan Khawaja, Mr.

    Ahmad Riaz Sheikh and Malik Muhammad Qayyum. He has stated

    before us in most categorical terms that no inquiry or investigation

    is warranted in those matters and he has stated so in

    contemptuous disregard of the fact that this Court has already

    passed an order for taking proceedings in those matters. We have

    particularly noticed the defiant posture and position adopted by

    the Chairman and have been struck by his willful disobedience to

    the earlier directions issued by this Court. It appears that instead

    of obeying the directions of this Court he has decided to take this

    Court head on, which attitude we find to be contumacious, to say

    the least. The Federal Secretary Law, Justice and Human Rights

    Division was absent from this Court on the last date of hearing on

    account of being abroad and even today he has failed to appear

    and we have been informed that he is unwell and is receiving

    medical treatment but nothing has been produced before us to

    substantiate the same. It appears that he prefers foreign sojourns

    upon his commitments before the highest Court of the country.

    The learned Attorney-General for Pakistan has 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 during the interregnum. We have also heard Mr. Ahsan

    Raja who has tried to convince us that he had no malicious intent

    in the matter of promotion of Mr. Ahmad Riaz Sheikh.

    3. The judgment in the case of

    Dr. Mobashir Hassan v.

    Federation of Pakistan

    (PLD 2010 SC 265) had been passed by this

    Court way back on 16.12.2009 and in that judgment this Court

    had issued some very clear and specific directions to the Federal

    Government and others which were required by the Court to be

    implemented and executed immediately. Later on a review petition

    filed against that judgment was dismissed by this Court and orders

    were again issued to the Federal Government and others to carry

    out the directions of this Court without any further loss of time.

    However, various interim orders passed by this Court in the

    present and other proceedings bear ample testimony to the

    unfortunate fact that over the last about two years the Federal

    Government has demonstrated no interest in carrying out some of

    the directions of this Court. It is quite clear to us by now that the

    Federal Government and the National Accountability Bureau are

    not serious in the matter at all and those concerned are only

    interested in delaying and prolonging the matter on one pretext or

    the other. On the last date of hearing it had been made clear to all

    concerned that they were being given the last and final opportunity

    till today and it appears that they have consciously decided to defy

    and disobey this Court. This Court has already shown a lot of

    grace and magnanimity in the matter and has demonstrated a lot

    of patience and restraint in this regard over the last about two

    years but in the present dismal and most unfortunate state of

    affairs the Court is left with no other option but to, as warned in

    categorical terms on the last date of hearing, take appropriate

    actions in order to uphold and maintain the dignity of this Court

    and to salvage and restore the delicately poised constitutional

    balance in accord with the norms of constitutional democracy. We

    are conscious that the actions we propose to take are quite

    unpleasant but maintaining the necessary constitutional poise and

    balance is a part of our duties, particularly when we have made an

    oath before Allah Almighty to "preserve, protect and defend the

    Constitution of the Islamic Republic of Pakistan" and to "in all

    circumstances ------- do right to all manner of people, according to

    law, without fear or favour, affection or ill-will".

    4. When the Objectives Resolution of 1949, made a substantive

    part of the Constitution of the Islamic Republic of Pakistan, 1973

    by Article 2A thereof, mandates that "the independence of the

    Judiciary shall be fully secured" and when Article 37(d) of the

    Constitution stipulates it as a Principle of Policy that the State

    shall "ensure inexpensive and expeditious justice" the Constitution

    does not contemplate an "independent" judiciary whose decisions

    may be flouted with impunity or implementation of whose

    judgments may be left to the whims or caprice of an indifferent

    Executive. Likewise, when Article 189 of the Constitution gives the

    decisions of the Supreme Court "binding" effect and when Article

    190 of the Constitution commands in no uncertain terms that "All

    executive and judicial authorities throughout Pakistan shall act in

    aid of the Supreme Court" the Constitution does not envision an

    Executive professing only "respect" towards the decisions of the

    Supreme Court but at the same time derisively or disdainfully

    paying little or no heed to implementation or execution of such

    decisions. Obedience to the command of a court, and that too of

    the Apex Court of the country, is not a game of chess or a game of

    hide and seek. It is, of course, a serious business and governance

    of the State and maintaining the constitutional balance and

    equilibrium cannot be allowed to be held hostage to political

    tomfoolery or shenanigans. Article 5 of the Constitution declares in

    most unambiguous terms that

    "(1) Loyalty to the State is the basic duty of every

    citizen.

    (2) Obedience to the Constitution and law is the

    inviolable obligation of every citizen ------- "

    In a recent interview with Mr. Hamid Mir on Geo Television the Co-

    Chairperson of the major political party in the ruling coalition at

    the federal level, who also happens to be the President of Pakistan,

    has categorically stated that under his Co-Chairpersonship his

    political party has taken a political decision not to obey some part

    of the judgment handed down by this Court in the case of

    Dr.Mobashir Hassan(supra).

    Even the Prime Minister of Pakistan and

    the Federal Minister for Law, Justice and Human Rights Division

    have been harping on the same theme for quite some time on

    different occasions through speeches made on the floors of the

    National Assembly and the Senate and also through print and

    electronic media. Their conduct in the matter also goes a long way

    in confirming what they have been proclaiming. Such an attitude,

    approach and conduct

    prima facie shows that the Co-Chairperson

    of the said political party, the Prime Minister and the Federal

    Minister for Law, Justice and Human Rights Division have allowed

    loyalty to a political party and its decisions to outweigh and outrun

    their loyalty to the State and their "inviolable obligation" to obey

    the Constitution and all its commands. We may unhesitatingly

    observe that in our country governed by a Constitution political

    loyalty cannot be accepted as stronger than loyalty to the State

    and dictates of a political master or party cannot be allowed to be

    put up as a defence to failure to obey the Constitution. The old

    sage Aristotle had once observed that "When laws do not rule,

    there is no Constitution". Justice Louis Brandeis of the United

    States Supreme Court had observed in the case of

    Olmstead v.

    United States

    (227 U.S. 438, 485) that

    "In a government of laws, existence of the government

    will be imperiled if it fails to observe the law

    scrupulously. Our Government is the potent, the

    omnipresent teacher. For good or for ill, it teaches the

    whole people by its example. Crime is contagious. If

    the Government becomes a lawbreaker, it breeds

    contempt for law; it invites every man to become a law

    unto himself; it invites anarchy."

    As already observed above, we the Judges of the Supreme Court

    have made an oath before Allah Almighty to "preserve, protect and

    defend the Constitution of the Islamic Republic of Pakistan" and,

    thus, it is our bounden duty to take appropriate action whenever

    we find that the Constitution is not being obeyed or its express

    commands are, wittingly or otherwise, being disregarded. Let

    nobody forget that in the not too distant past we stuck to our

    commitment to the Constitution and constitutionalism and were

    not shy of giving personal sacrifices for fulfillment of that

    commitment.

    5. This brings us to the actions we may take against willful

    disobedience to and non-compliance of some parts of the judgment

    rendered and some of the directions issued by this Court in the

    case of

    Dr. Mobashir Hassan (supra). This Court has inter alia the

    following options available with it in this regard:

    Option No. 1:

    In such a case of a brazen and blatant failure or

    refusal of the Federal Government to obey and execute the relevant

    judgment and directions of this Court the buck stops at the office

    of the Chief Executive of the Federation, i.e. the Prime Minister. At

    the time of entering upon his exalted office the Prime Minister had

    made an oath that " ------- I am a Muslim and believe in the Unity

    and Oneness of Almighty Allah, the Books of Allah, the Holy Quran

    being the last of them, ------- the Day of Judgment, and all the

    requirements and teachings of the Holy Quran and Sunnah". He

    had further sworn before Allah Almighty that "as Prime Minister of

    Pakistan, I will discharge my duties, and perform my functions,

    honestly, to the best of my ability, faithfully in accordance with the

    Constitution of the Islamic Republic of Pakistan and the law" and

    that "I will not allow my personal interest to influence my official

    conduct or my official decisions". While invoking the name of Allah,

    the most Beneficent, the most Merciful, and also seeking His help

    and guidance, the Prime Minister had also made an oath that "I

    will preserve, protect and defend the Constitution of the Islamic

    Republic of Pakistan". It is evident that 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. In the

    matter of making of oaths the Holy Quran has

    inter alia ordained

    as follows:

    "And make not Allah's name an excuse in your oaths

    against doing good, or acting rightly, or making peace

    between persons; For Allah is One who heareth and

    knoweth all things. Allah will not call you to account

    for thoughtlessness in your oaths, but for the intention

    in your heart; And He is oft-forgiving, most forbearing."

    (S. II: 224-225)

    "Allah will not call you to account for what is futile in

    your oaths, but He will call you to account for your

    deliberate oaths: ------- But keep to your oaths. Thus

    Allah makes clear to you His signs, that ye may be

    grateful."

    "And take not your oaths, to practise deception

    between yourselves, with the result that somebody's

    foot may slip after it was firmly planted, and ye may

    have to taste the evil consequences of having hindered

    men from the path of Allah, and a mighty wrath

    descend on you."

    (S. XVI: 94)

    "They swear their strongest oaths by Allah that, if only

    thou wouldst command them, they would leave their

    homes. Say: Swear ye not; Obedience is more

    reasonable; Verily Allah is well acquainted with all ye

    do."

    (S. XXIV: 53)

    "God has already ordained for you, (O men), the

    dissolution of your oaths (in some cases): and God is

    your protector, and He is full of knowledge and

    wisdom."

    (S. LXVI: 2)

    "Heed not the type of despicable man, --ready with

    oaths"

    (S. LXVIII: 10)

    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" (

    underlining has been

    supplied for emphasis

    ). 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 case of

    Dr.Mobashir Hassan

    (supra) reflects, at least prima facie, that he 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. According

    to the Preamble to the Constitution "sovereignty over the entire

    Universe belongs to Almighty Allah alone, and the authority to be

    exercised by the people of Pakistan within the limits prescribed by

    Him is a sacred trust" and "the State shall exercise its powers and

    authority through the chosen representatives of the people". 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". In

    the circumstances of this case mentioned above this Court 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 finding or declaration may

    have the effect of a permanent clog on the Prime Minister's

    qualification for election to or being chosen as a member of Majlise-

    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.

    Option No. 2:

    Proceedings may be initiated against the Chief

    Executive of the Federation, i.e. the Prime Minister, the Federal

    Minister for Law, Justice and Human Rights Division and the

    Federal Secretary Law, Justice and Human Rights Division for

    committing contempt of this Court by persistently, obstinately and

    contumaciously resisting, failing or refusing to implement or

    execute in full the directions issued by this Court in its judgment

    delivered in the case of

    Dr. Mobashir Hassan (supra). 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.

    Option No. 3:

    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 passed and directions issued in the case of

    Dr.

    Mobashir Hassan

    (supra).

    Option No. 4:

    Although 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 this 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.

    Option No. 5:

    It is a statutory duty of the Chairman, National

    Accountability Bureau 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 last date of hearing, i.e. 03.01.2012 this Court had directed the

    Chairman to attend to the matters of appointment of Mr. 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 passed

    in the case of

    Dr. Mobashir Hassan (supra), as modified in review to

    his extent. Today the Chairman has appeared before this Court in

    person and he has not only failed to advance any satisfactory

    explanation for his inaction in the above mentioned regards but

    has also manifested defiance towards this Court by categorically

    refusing to carry out the earlier directions issued by this Court

    qua

    proceeding in the matter of the above mentioned persons. 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. Apart from that we have gathered

    an impression that he 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.

    Option No. 6:

    The constitutional balance vis-à-vis trichotomy

    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. After all the ultimate ownership of the Constitution

    and of its organs, institutions, mechanisms and processes rests

    with the people of the country and there may be situations where

    the people themselves may be better suited to force a recalcitrant

    to obey the Constitution. It may be advantageous to reproduce

    here the relevant words of the Preamble to the Constitution of the

    Islamic Republic of Pakistan, 1973:

    "we, the people of Pakistan ------- Do hereby, through

    our representatives in the National Assembly, adopt,

    enact and give to ourselves, this Constitution".

    6. The learned Attorney-General for Pakistan is hereby put on

    notice to address arguments before this Court on the next date of

    hearing, after obtaining instructions from those concerned, as to

    why any of the above mentioned options may not be exercised by

    us in these matters. It goes without saying that any person likely

    to be affected by exercise of the above mentioned options may

    appear before this Court on the next date of hearing and address

    this Court in the relevant regard so that he may not be able to

    complain in future that he had been condemned by this Court

    unheard. The learned Attorney-General for Pakistan is directed to

    inform all such persons mentioned above about the passage of this

    order and also about the next date of hearing.

    7. On account of constitutional importance of these matters the

    Honourable Chief Justice is requested to consider the desirability

    of hearing of these matters on the next date of hearing by a Larger

    Bench of this Court.

    8. Adjourned to 16.01.2012 on which date the learned

    Attorney-General for Pakistan, the Federal Secretary Law, Justice

    and Human Rights Division, the Chairman National Accountability

    Bureau and the learned Prosecutor-General Accountability shall

    appear before this Court in person.

    10.01.2012


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