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07 - 13 July , 2012
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THE ORCHARD ON FIRE
 
VIEWPOINT
VIEWPOINTAshraf Going Gilani's Way
by TARIQ BUTT

The new Prime Minister, Raja Pervez Ashraf, considers it his religious duty to follow President Asif Ali Zardari-dictated policy of his predecessor, Yousuf Raza Gilani, on disobeying the Supreme Court direction to write letters to Swiss authorities to reopen graft cases against his boss. His view is a refrain that Gilani used to harp on. It reflects his firm strategy to follow in the footsteps of the former premier.
There is hardly any doubt anywhere that Ashraf's approach will lead him to the disgraceful path Gilani treaded, and became history. Since the apex court has given the unambiguous direction in its ruling against the National Reconciliation Ordinance (NRO) handed down on December 16, 2009, it can't retract its order. It has to be implemented. Even Supreme Court Bar Association President, Prime Minister Raja Pervez AshrafYasin Azad, who tilts towards the federal government has asserted that the prime minister should write the letters before July 12, the next date of hearing of the NRO judgment implementation case by the three-member bench comprising Justice Nasir-ul-Mulk, Justice Asif Saeed Khosa, and Justice Azmat Saeed Sheikh to what he said, "end the prevailing tension." "The new premier will also be disqualified if he refuse to write to Switzerland," he fears and rightly so.
If the prime minister persists with his stand, he will also earn a contempt of court show cause notice. But before that, his lavish praise for Gilani for taking a "heroic" stance not to "try the graves" of Bhuttos is a clear contempt of court. Gilani did not go out in a normal course but was booted out by the Supreme Court after his disqualification in the wake of his conviction. A convict can't remain prime minister or MP. Ashraf has to be watchful about what he utters regardless of his strong loyalty and commitment to the Pakistan Peoples Party (PPP) and his benefactor, President Zardari. He should not go down as someone who too defied the court verdict. To take pride in such disobedience doesn't behove such a top office holder.
Just four days after Ashraf took oath as prime minister, the apex court resumed hearing the NRO ruling implementation case, which was delayed because of Gilani's conviction and his appeal. It quickly directed Attorney General Irfan Qadir to ask the prime minister to file his response whether or not he is going to write the requisite letters. But at the same time, the bench expected that Ashraf would follow the judicial order. "We trust the new premier to implement the decision of the court." It ordered to implement paragraph 178 of the lengthy NRO verdict. This paragraph says since the NRO 2007 stands declared void ab initio, therefore, any actions taken or suffered under the NRO are also non est in law and since the communications addressed by Malik Muhammad Qayyum to various foreign fora/authorities/courts withdrawing the requests earlier made by the Pakistan government for mutual legal assistance; surrendering the status of civil party; abandoning the claims to the allegedly laundered moneys lying in foreign countries including Switzerland, have also been declared by the court to be unauthorized and illegal communications and consequently of no legal effect. Therefore, it is declared that the initial requests for mutual legal assistance; securing the status of civil party and the claims lodged for the allegedly laundered moneys lying in foreign countries including, Switzerland, are declared never to have been withdrawn.
Therefore the federal government and other concerned authorities have been ordered to take immediate steps to seek revival of the requests, claims and status.
Before the initiation of the contempt proceedings by a seven-judge panel led by Justice Nasir-ul-Mulk against Gilani, a five-member bench headed by Justice Asif Khosa had spelt out six options to deal with the issue of implementation of the NRO decision. Opening of contempt hearings was one of them. Its Syed Yousuf Raza Gilanioption number three said that 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 the apex court may appoint a Commission to execute the relevant parts of the judgment passed and directions issued in the original ruling.
However, the Justice Nasir-ul-Mulk headed bench did not resort to this option and preferred to exercise the one relating to the launch of contempt proceedings against the prime minister. It also unambiguously stated that 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 Parliament or a provincial assembly for at least a period of five years. So, before the final conviction of Gilani, it was unmistakably asserted by the court that the prime minister could be ousted on the contempt charge. Some legal experts including Asma Jahangir opine that the court should send the letters to Swiss authorities by a commission that it should appoint. Or it should do this through the Supreme Court registrar or order the Attorney General to send letters to Switzerland. It is not known whether or not the three-member bench, now seized with the implementation case, would choose to go for this option.
However, it is certain that the contempt proceedings against the new prime minister would be much swifter and quicker compared to those against Gilani. There will be no recording of evidence, no laying of record before the court, no testifying by witnesses etc. On January 16, Justice Nasirul Mulk chaired bench issued the show cause notice for contempt. Gilani hired Barrister Aitzaz Ahsan as lawyer for Rs100 to get him off the contempt charge hook. The notice was challenged before the larger bench and the nine-member panel headed by Chief Justice Iftikhar Muhammad Chaudhry rejected the appeal and held that its issuance was correct and proceedings should go ahead on it. Gilani's Principal Secretary Nargis Sethi appeared before the bench as witness while former law minister Babar Awan and Law Secretary Masood Chishti refused to testify and as a result lost everything official, shortly afterwards. All these processes were fully completed by the bench, which tried Gilani and convicted him. When Gilani repeatedly hid behind the argument that he did not write letters because he was advised by his legal team not to do so, the bench ordered him to send the communications to Switzerland without seeking any concerned secretary.
The seven-member bench took three months and ten days to finally convict Gilani on April 26 for contempt of court for not sending letters to Switzerland. It served the show cause notice on him on January 16, 2012 and directed Gilani on March 9 to "implement the NRO ruling without seeking any further advice and submit his written statement before the court." Keeping in view the fact that all the stages of fair trial were earlier consummated, the three-member bench has now straightaway directed the new prime minister to submit a written response whether or not he will write letters. Gilani twice appeared before the 7-judge panel, and tried to make it a big public event to galvanize public support for him and his party. His utmost effort was to become a political martyr to occupy a place in the PPP's list of such figures. But his dream could not come true, which was well evident from the public reaction to his unceremonious ouster, which went almost unnoticed at the public level. In any case, Gilani comprehensively enjoyed the office of the prime minister in every respect for over four years including two and a half years even after the pronouncement of the NRO judgment. The Raja of Gujjar Khan is just in the exalted office, and is yet to paint the town red as he did while working as water and power minister. If he defied the court order, his tenure will become too shortened and brief in Pakistan's history. He should not like to earn this dubious distinction.

 
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