ISLAMABAD, Aug 11: A five-judge Supreme Court bench, headed by Justice Asif Saeed Khosa, will take up on Wednesday a government petition seeking review of the court’s July 12 order asking Prime Minister Raja Pervez Ashraf to comply with the NRO judgment.
The federal government had on Aug 8 moved the petition pleading that the prime minister could not be asked by means of the July 12 order for implementing an “un-implementable” directive given by the Supreme Court in the NRO case.
Other members of the bench that will hear the review petition include Justice Sarmad Jalal Osmany, Justice Ejaz Afzal Khan, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed. Justice Osmany will replace Justice Ijaz Ahmed as he is not available next week.
Normally, a review petition is heard by the bench which had originally issued the judgment.
“The basic rule of the review petition, according to Supreme Court Rules 1980 is to provide a chance to the judges to remove error,” advocate Chaudhry Faisal Hussain, who is assisting the attorney general’s office in the matter, told Dawn.
Could the court not wait for a few more days and take up the review petition after Eid so that the bench which had handed down the July 12 judgment could have the chance to review its decision, he asked, adding that apparently there should be no haste since the contempt of court case against the prime minister was scheduled for Aug 27.
On Aug 8, a different five-bench, also headed by Justice Asif Khosa, had issued a show cause notice to Prime Minister Ashraf and asked him to appear before the court on Aug 27 to answer his “calculated defiance, dilatory tactics and excuses for resisting implementation” of the NRO verdict.
He will be prosecuted under the old Contempt of Court Ordinance 2003, resurrected by the Supreme Court through its Aug 3 order after striking down the contempt of court law enacted last month.
In the review petition, the government contended that there was no question whatsoever of revival of Pakistan’s status as a damaged party (writing of letter to the Swiss authorities) because the Supreme Court’s own jurisdiction was limited to the territories of Pakistan.
“If the apex court itself is not in a position to seek revival of Pakistan’s status as a damaged party then it also has no mandate to force the prime minister to do the same,” it said.
The petition argued that option No 2 given by a bench also headed by Justice Asif Khosa for initiating contempt of court proceedings against the prime minister had already been exercised against his predecessor Yousuf Raza Gilani.
Therefore, it said, the issue of implementing para 178 of the NRO judgment no longer arose in respect of the new prime minister as the court had already punished the former premier under contempt. Thus the same option could not apply again to the new prime minister and should be regarded as a past and closed transaction.
The petition argued that the prime minister could comply with para 178 of the NRO judgment only if the federal cabinet advised him to do so under Article 90 of the Constitution.
“Since the prime minister has not received any such advice from his cabinet to implement para 178, he is, therefore, not obliged under the Constitution and the rules of business made thereunder to be able to do so.”
The petition contended that the NRO case had been recorded by 17 judges of the Supreme Court and this could not be implemented by a seven-judge bench.