SC says NRO validation must by parliament, or else...

SC says NRO validation must by parliament, or else...

Thursday, October 01, 2009Zardari, others to face trials By Ansar AbbasiISLAMABAD: The Supreme Court on Wednesday made it absolutely essential for the government to get the NRO and all other ordinances revalidated from parliament within the time given by the court, to prevent all the cases, including those against President Asif Ali Zardari, from being revived automatically.In the detailed judgment of its July 31 short order issued by the SC, all corruption and criminal cases in which benefit was given under the NRO after February 5, 2008, the date the NRO legally expired, would stand automatically reopened if parliament fails to validate the NRO retrospectively. Simply speaking it means that the benefits were given when the NRO was no longer in existence.The apex court did not agree with the perception that the benefits drawn from the NRO are past and closed transactions.It instead judged: “Under Article 89 of the Constitution, an ordinance issued by the president if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation.”Under this judgment, the NRO stands invalid since February 5, 2008, when it completed its 120-day constitutional life. The NRO was enforced on Oct 6, 2007, and within 120 days had to be passed by parliament as a bill or re-issued as an ordinance, which it was not.Much to the worry of the ruling elite particularly President Zardari, all their corruption and criminal cases were quashed because of the NRO after February 5, when as per the Supreme Court’s judgment, the NRO did not exist. President Zardari’s acquittal from all cases happened during March-April 2008. (See list)“Only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said Ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after November 3, 2007, and not thereafter, until such ordinances were enacted as acts by Parliament with retrospective effect,” the Supreme Court ruled.The Supreme Court did not discuss the NRO in isolation but set the same principle for all ordinances that were covered under Musharraf’s PCO, now declared unconstitutional. In case parliament validates the NRO retrospectively (with effect from February 5, 2008) as per the judgment of the apex court, the Supreme Court also made it clear in the same judgment: “Needless to say that any validation whether with retrospective effect or otherwise, shall always be subject to judicial review on the well recognized principles of ultra vires, non-conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground.”It is relevant to mention here that the NRO soon after its promulgation in October 2007 was challenged in the Supreme Court, which has yet to hear the petitions questioning the very validity of the controversial ordinance.In para 186 of the detailed judgment, the SC said, “Proclamation of Emergency and PCO No 1 of 2007 having been declared unconstitutional and void ab initio and the validity purportedly conferred on all such Ordinances by means of Article 270AAA and by the judgment in Tikka Iqbal Muhammad Khan’s case also having been shorn, such ordinances would cease to be permanent laws with the result that the life of such ordinances would be limited to the period specified in Article 89 and 128 of the Constitution, viz., four months and three months respectively from the date of their promulgation. Under Article 89 of the Constitution, an ordinance issued by the president, if not so laid before the National Assembly, or both Houses of Parliament, stands repealed on expiration of four months from its promulgation. Similarly, under Article 128 of the Constitution, an ordinance issued by the governor, if not so laid before the concerned provincial assembly, stands repealed on expiration of three months from its promulgation.”In its para 187, the detailed judgment said, “It may be noted that such ordinances were continued in force throughout under a wrong notion that they had become permanent laws. Thus, the fact remains that on the touchstone of the provisions of Articles 89 and 128 read with Article 264 of the Constitution and Section 6 of the General Clauses Act, 1897, only such rights, privileges, obligations, or liabilities would lawfully be protected as were acquired, accrued or incurred under the said ordinances during the period of four months or three months, as the case may be, from their promulgation, whether before or after November 3, 2007, and not thereafter, until such ordinances were enacted as acts by Parliament or the concerned provincial assembly with retrospective effect.”According to the details gathered by The News, President Asif Ali Zardari’s acquittal from all the corruption and criminal cases happened between March 6, 2008, to May 20, 2008. The likes of Interior Minister Rehman Malik, Suleman Faruqi, Zulfikar Mirza, Wajid Shamsul Hasan, Chaudhry Ahmad Mukhtar, Usman Farooqi, M B Abbasi and many others also benefited after the ordinance lapsed.