"We have stated in unambiguous terms in the Short Order that the Constitution of Pakistan is the supreme law of the land and its basic features ie independence of judiciary, federalism and parliamentary form of government blended with Islamic provision cannot be altered even by the Parliament. Resultantly, the power of the Chief Executive to amend the Constitution is strictly circumscribed by the limitations," the judgement said.
Authored by the Chief Justice, the detailed judgement of 287 pages declared the NRO null and void was a 'black law created and prolonged by the malevolent hands of a dictator' and benefit drawn by the holders of public office under this ordinance is not sustainable. The judgement also includes two additional notes one each by Justice Chaudhry Ijaz Ahmed and Justice Jawwad S Khawaja.
On December 16, 2009 a larger bench (17-member) headed by Chief Justice Iftikhar Muhammad Chaudhry had declared the National Reconciliation Ordinance (NRO) invalid from the outset or beginning (void ab initio) being against the national interest as it was meant "to give benefit to a class of people" and had 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," the order said.
"We are conscious of the fact that temporary legislation cannot be struck down, taking into consideration the mala fide or subjective consideration for the issuance of such legislation but simultaneously this Court is empowered to examine the contents of the temporary legislation, if it is inconsistent with the fundamental rights, guaranteed by the Constitution or of any of the provisions of the Constitution has been violated."
The NRO, 2007 was not promulgated for 'national reconciliation' but for achieving the objectives, which absolutely have no nexus with the 'national reconciliation' because the nation of Pakistan, as a whole, has not derived any benefit from the same. Contrary to it, it has been promulgated for achieving the individuals' reconciliation, explained before this Court with the help of admitted evidence, noted here in above.
Giving reference to Article 4 of the Constitution which deals in respect of the rights of individuals to be dealt with in accordance with law, it said that on proclamation of emergency, fundamental rights, guaranteed under Articles 15, 16, 17, 18, 19 & 24, of the Constitution, can be suspended in terms of Article 233 of the Constitution, but during the emergency, the provisions of Article 4 of the Constitution remain operative, said the judgement.
In a system of constitutional governance, guaranteeing Fundamental Rights, and based on principle of trichotomy of powers, such as ours, the judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens' inter se.
The judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society, it said.
The amendment in Section 494 Cr.P.C. has not only undermined the independence of judiciary by substituting the Court, before whom the trial of an accused was pending, with the Review Board, but, at the same time, had also created discrimination with the accused, who were facing trial prior to 1st January, 1986 or had been charged for the offence after 12th October, 1999.
While discussing the role of review boards established under the NRO to perform judicial function to give terminated cases including the criminal cases, involving murder, attempt to murder, dacoity, kidnapping for ransom, robbery, gunrunning, theft, extortion, etc, by saying them politically motivated or false the judgement says, "We fail to understand whether hundreds of cases can be decided within few hours, for the purpose of making recommendations by the Provincial Review Board. Therefore, inference would be that just to fulfil the formality, meeting of the Board was convened in order to get recommendations for the withdrawal of cases."
Therefore, the NRO, 2007 to the extent of discussion on Section 2, is arbitrary and irrational as it has failed the test of reason to conclude in its favour that it is not a bad law. Similarly on the basis of intelligible differentia for reasonable classification, the differentiation has not been understood logically and it seems that for specific purpose, an artificial grouping was made, causing injustice to the accused persons, who were placed in the same position and instead of achieving the 'national reconciliation' the NRO, 2007 had served the purpose of 'individual reconciliation'.
It is further to be noted that the international co-operation, for the purpose of prevention of corruption, has been considered in the comity of the nations, as their commitment to achieving the object, under the United Nation's Convention Against Corruption, 2005.
Earlier, the court had directed the government to contact Swiss authorities for the revival of Mutual Legal Assistance while declaring the withdrawal of the cases against President Asif Ali Zardari in Switzerland, ordered by the then Attorney General, Malik Qayyum, as illegal, unconstitutional and unauthorised.
Addressing this question the judgement said that 'Pakistan is not the only country, which has demanded for such mutual legal assistance; 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, former President of the Philippines.
Similarly, there is another case, from Nigerian jurisdiction, wherein the Head of the State namely Sani Abacha, was found involved in corruption and corrupt practices and proceedings, against him, were initiated for return of his assets from Switzerland to Nigeria and from 1999 to 2009, approximately US $1.2 billion, had been returned to the Federal Republic of Nigeria, said the judgement.
Government of Pakistan is signatory to the UN General Assembly Regulation No 58/41 of 31st October, 2003, on the international co-operation relating to corruption but at the same time, by means of adding Section 33F in the NAO, 1999 through Section 7 of the NRO, 2007, the prolonged pending proceedings, initiated prior to 12th October 1999, against 'holders of public office', inside or outside the country, and cases at the stage of investigation or pending before the High Court or Supreme Court, have been ordered to be withdrawn and terminated by means of the same legislative order; therefore, this amendment is in clear contravention to the provisions of the NAO, 1999 as well as to the above referred international treaty. This act of the legislative authority is not only unconstitutional but simultaneously against the principle of the trichotomy of powers.
In view of the conduct of former Attorney General Malik Qayyum which, according to the Supreme Court resulted in unlawful abandonment of claims of the government of Pakistan to huge amounts of allegedly laundered money laying in foreign countries including Switzerland, the court had directed the government to proceed against him in accordance with the law.
In this behalf, the judgement said that it may be noted that under Rule 14 of the Rules of Business, 1973, he was required to consult the Law, Justice and Human Rights Division on all legal questions, arising out of any case. Had he consulted the Law, Justice & Human Rights Division, he would have been advised not to send any letter in this regard because the Ministry of Law & Justice had already declined such request as was pointed out by the Secretary Law & Justice Division, whose statement has been referred to hereinabove.