By: Sajid Zia
Published: August 07, 2009

LAHORE - Attorney General of Pakistan Sardar Latif Khan Khosa has described the National Reconciliation Ordinance (NRO) as a closed chapter and not open for placement before the Parliament for debate anymore as it has lapsed after meeting its constitutional life of four months.

While talking to The Nation Thursday Khosa, in the context of his personal view, also termed the first PCO of October 1999 - protected through the LFO - as not ratified by the Parliament in its strict sense after the July 31 decision of the Supreme Court held the Iqbal Tikka case, which saved the November 3,2007 PCO, void and coram non judice. And whether Zafar Ali Shah case would also come in the picture in this course, Khosa said: It depends upon the detailed judgment of 14-member Bench which would determine how far back we have to go to take up things. And the question whether first PCO stands as closed matter may also depend upon the details of that judgment, he added.

To a question on NRO Khosa asserted that it can not be discussed by the Parliament for having spent its life and carrying no live issue which falls under its purview.

Seeing through the background, the Attorney General said the Charter of Democracy signed by Benazir Bhutto and Nawaz Sharif on May 12, 2007 called for ending the political cases lodged in the context of political vendetta and victimisation and they both also made a commitment not to weaken the government of each other to prevent the onslaught of the third force.

After that the Shaukat Aziz cabinet also approved that the cases based on political grudge and pending before the courts over the last 10/12 years would go and the same was approved by the Cabinet through draft of the NRO. Khosa said after a three-member Committee, also comprising himself and Justice (retd) Hamid Ali Mirza, thoroughly scrutinised each and every case, concluding that only 10 per cent of the total cases bore the stigma of political considerations or victimisation, while in 90 per cent of them, the Committee required the Courts to pass decision on the basis of evidence and recording the witnesses, and exonerate the accused if they are proved innocent

He said: Now the committee has been abolished after doing the needful, and no live issue exists falling in the scope of NRO and the Ordinance has also lapsed in terms of Article 89 of the Constitution. With reference to Article 264 of the Constitution he said, an Ordinance which stands repealed on living its natural life cannot come up before Parliament for enactment.

He said the SC decision has invalidated appointment of Justice Abdul Hameed Dogar as Chief Justice of Pakistan and not his decisions, among those also falls the one relating to the validation of NRO. However, to a question, he opined that the SC is competent to revisit the NRO case.

As to the 37 Ordinances which were issued before November 3, 2007 and were coming through as permanent, he said, they would come up before the Parliament in the light of the SC decision for their enactment or otherwise and their life term of four months starts form the day - July 31 decision short order came.

On the high treason trial of former President-cum-General Pervez Musharraf, Sardar Latif Khan Khosa said, the statement of the Prime Minister is self speaking that trial of Musharraf under Article 6 of the Constitution would be held if the Parliament called for it. He said once the Parliament has voted for Musharraf’s trial, the Federal Government would be obliged to act upon the decision and try Musharraf. Now the ball is in the court of the National Assembly, he added.

Khosa said not a private person but only the Federal Government can seek high treason trial against Musharraf and that has to be held by the Session Court, however, keeping room for the High Court to call the same up to itself. As to in absentia high treason trial of Musharraf, the Attorney General said: “The process starts through notice to the accused under section 86 and 87 of the Cr PC and after issuance of non-bailable warrants for his arrest. If the accused fails to appear, then proceedings under section 512 Cr PC would take place wherein the evidence would be recorded and preserved but no conviction would be delivered until the accused, in person, is present as per requirement of Article 12 of the Constitution. If evidence is preserved, the hearing may be put off sine die to seek production of the accused which may come through international red warrants or Interpol or through the extradition treaty”. Khosa said Pakistan did have the extradition treaty with Britain, however, the British government is not bound to ipso facto respond to Musharraf’s return demand of Pakistan, but that UK government may process the case and examine/investigate the evidence against the accused before doing the needful.

To a question as to what may be the basis of initiating high treason trial against Musharraf, he said the subversion of the Constitution on November 3, could the basis of high treason.

To a question on the Supreme Judicial Court, being headed by Chief Justice of Pakistan to hear the references against the PCO judges when as head of the SC Bench he had invalidated their appointment, Khosa said, in this event it is the discretion of the Superior Judiciary to decide if any objection is raised to that effect.

Responding to a question on the re-establishment of Islamabad High Court, Khosa said the Government wants to set up a Federal High Court for Capital Territory in view of the public convenience and the fact that Federal Territory is independent of the provinces. The July 31 decision, he said, has also kept a space for the establishment of the High Court in Islamabad, which, he added, would come through the constitutional amendment under consideration before the 27-member parliamentary committee at present and not through the Ordinance.

On filling in vacancies of judges in Balochistan, as well as in other provincial High Courts, he said Al-Jihad case has stipulated one month’s period for this purpose as such no unnecessary delay would be made in this respect. He maintained that all inductions in the high courts would be strictly on merit and in consultation with the three constitutional functionaries namely Chief Justice, the Governor and the Chief Minister. He said the process for judges’ appointment has been kick-started.