Giving six options to the federal government on defying its December 16, 2009, order on the National Reconciliation Ordinance (NRO), the court questioned that as to why any of those options should not be exercised against it.
“This court has already shown a lot of grace and magnanimity in the matter and has demonstrated a lot of patience and restrain over the last two years, but in the present dismal and most unfortunate state of affairs the court has been left with no other option but to 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 accordance with the norms of the constitutional democracy. We are conscious that the actions we propose to take are quite unpleasant but maintaining the necessary constitutional poise and balance is part of our duties, particularly when we have made an oath before God to preserve, protect and defend the constitution.”
Justice Asif Saeed Khan Khosa, who authored the judgement, held that the 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 NRO case reflects, at least prima facie, 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.
The Supreme Court said it was “dismayed” over the “brazen and blatant failure” of the government to implement court orders.
The court noted that the co-chairperson of the said political party, who is the president of Pakistan, the prime minister and the federal minister for law had 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.
Option No 1: The 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 Majlis-e-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 and 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: The proceedings may be initiated against the prime minister, the federal minister and secretary for law, justice for committing contempt of this court by persistently, obstinately and contumaciously resisting, failing or refusing to implement court directions.
Option No 3: In exercise of its powers under the constitution, the Court may appoint a commission to execute the relevant parts of the judgement.
Option No 4: The court noted that 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 NAB chairman to proceed against any person prima facie involved in misuse of authority while holding a public office. The court noted that such inaction on his part in dereliction 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.
Option No 6: The 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 judgement of the people of the country or their representatives in parliament to appropriately deal with the delinquent.
The attorney general of Pakistan was directed to inform all such persons about the passage of this order and also about the next date of hearing.
The court recommended the chief justice to consider hearing of these matters on the next hearing by a larger bench and directed the AGP, the law secretary, the NAB chairman and prosecutor general to appear in person on January 16.
Six options:
* President, PM and law minister may be disqualified for breaches of their oaths
* Contempt proceedings may be initiated against PM, law minister and law secretary
* Court may appoint a commission to execute NRO judgement
* Grants a hearing opportunity to those who might be affected from exercise of six options
* NAB chairman may be removed from his office for disobeying court orders
* Court may exercise judicial restraint and leave the matter to people or their representatives in parliament
