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