The paradoxical position of the Government in treating accused persons in the Government and bureaucracy

The following portion taken from the Judgment of the Supreme Court of Pakistan which has apparently destroyed the peace of minds of those who have got the benefit from that bad law which was issued in favour of some persons. This sentence in the Judgment “the NRO, 2007 has been promulgated not in

consonance with Injunctions of Islam in terms of Article

227(1) of the Constitution” is a point for all those who day and night go to the mosques for prayers and wish to be called good Muslims. This Judgment which on one side has perturbed the personalities of the Government on other side has delighted all those persons of the Country who were lamenting on the issuance of this law since the day first. I am neither interested in conviction nor exoneration of any one but I wanted to have rule of law. Things are matched/cut in accordance with the rule, not rule is matched/cut in accordance with the things. When special laws are issued for the elite class and others are ignored then how we can say that we have progressed from savage society to that of civilized society. When laws favourable for thieves, dacoits and dishonest persons are being issued then where the righteous, pious and law-abiding people should go? Now-a-days, there is a unique situation in the Country that those who trampled/blurred the pre-election scrutiny of the election papers by the notorious NRO are running the affairs of the Government. The Supreme Court has declared the NRO void ab initio and repugnant to the Constitution of Pakistan to what extent the Executive of the Country can be trusted to implement that Judgment of the Supreme Court which has axed their legs. It is also anomalous treatment that when a Civil Servant is accused, then he is suspended and removed from the post for the sake of his fair trial in the Department. It is done only for this reason that he may not use his influence of post to undermine the enquiry process. However, after the Judgment on NRO, it seems to me unusual that a person should be prosecuted according to the law and he be allowed on his own post having all the extraordinary powers in his hands. Although there is no such indication in the Judgment that the accused persons should be stripped off their powers if they possess any such powers by dint of their posts in the Government or should be removed from their respective posts, still the normal course that is done with the Civil Servants should be adopted with the persons in the Government or the custom of removal of civil servants should also be abandoned while under enquiry. Under the Constitution discrimination is not allowed and all equal before the Law. This Judgment needs to be translated into Urdu language by the experts for the benefit of those who are interested to read this judgment but cannot read the English. The common people have not yet learn the actual issues which have been discussed in this judgment. The NRO beneficiaries are baffling the majority of the illiterate people by saying that conspiracy has been hatched against the democracy.

Manzoor Ahmad Yousafzai

Wednesday, January 27, 2010

(excerpts from the NRO Judgment given below)

114. Corruption and corrupt practices, being a crime, if

proved, against a ‘holder of public office’ takes away his

qualification to contest the election because, prima facie, he

has breached the trust of his electorate. Therefore, by

inserting Section 33F in the NAO, 1999 by means of Section 7

of the NRO, 2007, possibility of raising objection on the

qualification of a person to be elected or chosen as a member

of the Parliament has been negated for limited purpose, in

Const.P.76/2007, etc. 185

view of Article 62(f) of the Constitution, a person having been

convicted/sentenced by the Court under the NAO, 1999 shall

stand absolved as the case has been withdrawn against him

or the proceedings have been terminated, pending in any

Court including the High Court and Supreme Court, in

appeal or whatever the case may be. Therefore, instead of

following the command of Article 5 of the Constitution,

Section 7 of the NAO has contravened Article 62(f) of the

Constitution. It is true that Section 62(f) of the Constitution

cannot be considered self-executory but if a person involved

in corruption and corrupt practices has been finally adjudged

to be so, then on the basis of such final judgment, his

candidature on the touchstone of Article 62(f) of the

Constitution can be adjudged to the effect whether he is

sagacious, righteous, non-profligate, honest or Ameen.

115. It is true that on an objection against a candidate,

without any support of evidence, the provisions of Article 62

of the Constitution cannot be pressed into service, because it

is a provision of Constitution which is not self executory.

Reference in this behalf may be made to Muhammad Afzal

v. Muhammad Altaf Hussain (1986 SCMR 1736).

116. However, with reference to examining the vires

of Section 7 of the NRO, 2007, in pursuance of which Section

Const.P.76/2007, etc. 186

33F has been inserted in the NAO, 1999, with an approach

that a ‘holder of public office’, as per the mandate of law, has

been absolved without following the legal course from the

allegations of corruption or corrupt practices, which also

keeps the element of trust in its fold, and washed him from

all such like sins, then how he can be considered qualified to

contest the election because conviction and sentence under

Section 9 of the NAO, 1999 has not been set aside legally, and

whether such ‘holder of public office’, with a stigma upon

him to be corrupt and involved in corrupt practices, can

become a member of the Parliament, which is a sovereign

body, representing the people of Pakistan. Article 62 (f) has

been incorporated in the Constitution by means of

President’s Order No.14 of 1985 (The Revival of Constitution

Order, 1985) and it being a part of the Constitution has to be

taken into consideration by the Courts, while examining the

case of a convict, involved in corruption and corrupt

practices, who has attained the status of innocent person by

means of a law which has washed away his conviction/

sentence by withdrawal or termination of cases or

proceedings, however, subject to furnishing strong evidence

for establishing the allegation mentioned in Article 62(f) of

the Constitution. As it has been noted hereinabove that this

provision was inserted by a dictator but it is still continuing

Const.P.76/2007, etc. 187

although five National Assemblies and Senate had been

elected and completed their terms, but no effective steps, so

far have been taken in this behalf.

117. Now turning towards the question under

consideration in respect of insertion of Section 33F in the

NAO, 1999 by means of Section 7 of the NRO, 2007, on the

basis of which either the proceedings have been terminated

or the cases have been withdrawn, as far as the withdrawal

of proceedings under Section 494 Cr.P.C. is concerned, it has

already been discussed hereinabove. while examining the

implications of Section 2 of the NRO, 2007 wherein it was

held that no withdrawal without the consent of the Court,

seized with the case, is possible and this provision itself

being discriminatory has been found in derogation to the

fundamental rights enshrined in Article 25 of the

Constitution and at the same time withdrawal of the criminal

cases, particularly the murder cases, without hearing the

heirs of victims. Likewise, while examining the vires of

Section 6 of the NRO, 2007 it has been held that the

legislature is not empowered to declare any judgment void

ab initio, however, subject to following the principles,

discussed hereinabove, which are lacking in the instant case.

Const.P.76/2007, etc. 188

As far as principles of withdrawal of cases under the NAO,

1999 is concerned, Section 25 of the NAO, 1999 contains that:-

“25. (a) Notwithstanding anything contained in

section 15 or in any other law for the time being in force,

where a holder of public office or any other person,

prior to the authorization of investigation against him,

voluntarily comes forward and offers to return the

assets or gains acquired or made by him in the course,

or as the consequence, of any offence under this

Ordinance, the Chairman NAB may accept such offer

and after determination of the amount due from such

person and its deposit with the NAB discharge such

person from all his liability in respect of the matter or

transaction in issue:

Provided that the matter is not sub judice in any court

of law.

(b) Where at any time after the authorization of

investigation, before or after the commencement of the

trial or during the pendency of an appeal, the accused

offers to return to the NAB the assets or gains acquired

or made by him in the course, or as a consequence, of

any offence under this Ordinance, the Chairman, NAB,

may, in his discretion, after taking into consideration

the facts and circumstances of the case, accept the offer

on such terms and conditions as he may consider

necessary, and if the accused agrees to return to the

NAB the amount determined by the Chairman, NAB,

the Chairman, NAB, shall refer the case for the approval

of the Court, or as the case may be, the Appellate Court

and for the release of the accused.

(c) The amount deposited by the accused with the

NAB shall be transferred to the Federal Government or,

as the case may be, a Provincial Government or the

Const.P.76/2007, etc. 189

concerned bank or financial institution, company, body

corporate, co-operative society, statutory body, or

authority concerned within one month from the date of

such deposit.”

Subject to exercise of above powers, a case can be withdrawn

on the basis of entering into plea bargain, with all

consequences. So far as, withdrawal from the prosecution

under Section 31B of the NAO, 1999, is concerned, that is also

subject to consent of the Court. Section 31B of the NAO, 1999

reads as follows:-

“31B. Withdrawal from Prosecution. The Prosecutor

General Accountability may, with the consent of the

Court, withdraw from the prosecution of any accused

Person generally or in respect of any one or more of the

offences for which he is tried and upon such

withdrawal:

(i) if it is made before a charge has been framed, the

accused shall be discharged in respect of such

offence or offences; and

(ii) if it is made after a charge has been framed, he

shall be acquitted in respect of such offence or

offences.”

118. It is important to note that a person, who enters

into plea-bargain as per the mandate of Section 25 of the

NAO, 1999, would be disqualified to contest the election or to

hold the public office. The language employed in Section 33F

of the NAO, 1999, inserted by means of Section 7 of the NRO,

2007 does not indicate that the withdrawal had to take place,

subject to any of the above provisions, either under Section

Const.P.76/2007, etc. 190

25 or under Section 31B of the NAO, 1999, with the consent

of the Court.

119. So far as withdrawal from the cases inside or

outside the country, as per Section 33F of the NAO, 1999,

inserted through Section 7 of the NRO, 2007, is concerned, it

would mean that the ‘holders of public office’ have been

absolved from the charge of corruption and corrupt practices,

therefore, by adopting such procedure, the legislative

authority had transgressed its jurisdiction, because such

powers are only available to the judiciary and the

Constitution provides guarantee to secure the independence

of the judiciary. Reference in this behalf may be made to

Article 175 of the Constitution, which has been extensively

interpreted in Mehram Ali’s case (PLD 1998 SC 1445) and

Liaquat Hussain’s case (PLD 1999 SC 504).

120. A perusal of Section 33F of the NAO, 1999,

inserted through Section 7 of the NRO, 2007 further reveals

that while using the expressions ‘withdrawal’ and

‘termination’, it was not considered that in the cases of the

offences, falling within the mischief of the NAO, 1999,

charged against the ‘holders of public office’, no such judicial

powers can be given to the legislature to withdraw or

terminate the cases or proceedings. As far as, the words

Const.P.76/2007, etc. 191

‘termination of prolonged pending proceedings’, are

concerned, these are alien to the system of criminal

administration of justice, prevailing in the country under

Criminal Procedure Code and the NAO, 1999.

121. In order to ascertain that as to how many persons

have benefited from Section 33F of the NAO, 1999, inserted

through Section 7 of the NRO, 2007, the NAB was asked to

furnish the details of the same. Accordingly, after a great deal

of difficulty, the list was provided by the Chairman NAB,

which indicates that there are two categories of the

beneficiaries i.e. ‘holders of public office’; whose cases were

pending (a) inside Pakistan and (b) outside Pakistan, in

which US$ 60 million are involved for which a request for

mutual legal assistance and civil party to proceedings, has

been made by the Federal Government. As far as the

category (a) is concerned, this Court, in exercise of its powers

conferred under Article 187 read with Article 190 of the

Constitution, may direct the NAB or any executive authority

to supply requisite information.

122. So far as Article 190 of the Constitution is

concerned, it imposes a constitutional obligation upon all the

executives and judicial authorities, throughout the country to

act in aid of the Supreme Court. Reference in this behalf may

Const.P.76/2007, etc. 192

be made to Al-Jehad Trust v. Federation of Pakistan (PLD

1997 SC 84), but in implementing the judgment, in letter and

spirit, regarding the cases outside the country, the Court may

feel handicapped. Therefore, it would be an obligation and

the duty of the executive to ensure initiation of proceedings

according to law.

123. At this juncture, it may be noted that as per the

list provided by the NAB, regarding cases falling within

category (b) in which a huge amount is involved, it was also

pointed out that to get back this money, subject to

determination, belonged to the people of Pakistan, an amount

ranging between 660 million to 2 billion rupees was spent but

despite our directions, the Chairman NAB could not furnish

the exact figure. This Court asked the learned Prosecutor

General to furnish the details in respect of the amount

involved in the cases out side the country, in pursuance of

request for mutual legal assistance and civil party to

proceedings, was made by the Federal Government.

124. In reply, the learned Prosecutor General NAB

furnished the following details:-

a) The Magistrate after considering the material

opined that, prima facie, case has been made

out and sent it to the Attorney General for

Const.P.76/2007, etc. 193

launching the proceeding and also passed the

order for freezing of account.

b) The accused filed appeal against the said

order, which was also dismissed being based

on vague grounds.

c) Our lawyer informed that the Attorney

General in Geneva had decided not to

prosecute the accused further and the Court

expressed its dissatisfaction over it.

d) The Magistrate in Geneva has passed an order

for de-freezing of the money.

In respect of item (c) above, the learned Prosecutor General

NAB admitted that in the proceedings, reference was made

to a letter sent by the then Attorney General for Pakistan

(Malik Muhammad Qayyum). Whereas, Malik Muhammad

Qayyum, the then Attorney General for Pakistan, who

appeared on Court’s call, informed the Court that he had sent

a letter to the Attorney General of Geneva, mentioning

therein the relevant provisions of the NRO, 2007, regarding

withdrawal of cases. Similarly, learned Acting Attorney

General for Pakistan (Mr. Shah Khawar) appeared and stated

that the request for mutual legal assistance and civil party to

proceedings, was made by the Federal Government through

the Attorney General, therefore, he would apprise the Court

of the position of cases etc. According to him, so far as the

Const.P.76/2007, etc. 194

amount lying in the Swiss Banks was concerned, 25 other

individuals had also filed claims against it; however, a

request was made by the former Attorney General for

Pakistan (Malik Muhammad Qayyum) for withdrawal of

money but as per his knowledge that request was not

acceded to by the Attorney General Office of Switzerland as

well as by the concerned Magistrate because their version

was that they would deal with the case in accordance with

their local laws. However, on 15th December 2009, the then

Attorney General for Pakistan (Malik Muhammad Qayyum)

again appeared on Court’s call; he read Section 7 of the NRO,

2007 with reference to withdrawal of cases and informed the

Court that Constitution Petition No. 265 of 2008 (Asif Ali

Zardari v. Government of Pakistan) was filed before the High

Court of Sindh, whereby directions were sought for the

Federation and the NAB, both, that they should withdraw all

the cases pending in Pakistan and specifically proceedings in

Geneva and in London and all others under the provisions of

the NRO, 2007; the NAB authorities appeared before the

Sindh High Court and made a statement that they would

make efforts to withdraw the proceedings from all the Courts

in and outside Pakistan; the Court, vide order dated 4th

March 2008, directed to do the needful within a period of two

weeks; he further stated that in pursuance of said order and

Const.P.76/2007, etc. 195

also under the instructions of the then President, he issued a

letter dated 9th March 2008 to the Attorney General of

Geneva regarding withdrawal of proceedings. Copy of said

letter has also been placed on record, which is reproduced

hereinbelow in extenso:-

“Re: P/11105/1997 and CP 289/97, Republic of

Pakistan Vs/ Asif Ali Zardari and Jens Schlegelmich

Dear Mr. Attorney General,

We write you further to our meeting of 7 April 2008.

We hereby confirm that the Republic of Pakistan having

not suffered any damage withdraws in capacity of civil

party not only against Mr. Asif Ali Zardari but also

against Mr. Jens Schlegelmich and any other third party

concerned by these proceedings. This withdrawal is

effective for the above captioned proceedings as well as

for any other proceedings possibly initiated in

Switzerland (national or further to international judicial

assistance). The Republic of Pakistan thus confirms

entirely the withdrawal of its request of judicial

assistance and its complements, object of the

proceedings CP/289/97.

Request for mutual assistance made by the then

government, which already stand withdrawn, was

politically motivated. Contract was awarded to preshipment

inspection companies in good faith in

discharge of official functions by the State functionaries

in accordance with rules.

The Republic of Pakistan further confirms having

withdrawn itself as a damaged party and apologizes for

the inconvenience caused to the Swiss authorities.

Your sincerely,

Sd/-

Malik Muhammad Qayyum

Attorney General for Pakistan.”

125. Despite our repeated queries that how request for

withdrawal of mutual assistance and civil party to

Const.P.76/2007, etc. 196

proceedings, initiated by the Federal Government, were

withdrawn, no satisfactory answer was given to us. We have

noticed that the Chairman NAB, who should have assisted

the Court diligently, was reluctant to do so for one or the

other reason. Therefore, having left with no option, the

Federal Secretary, Law & Justice Division, Government of

Pakistan was called upon to appear and place on record

copies of the file, pertaining to the Swiss cases. His statement

was as follows:-

“a letter was addressed to Law Ministry by Mr. Farooq

H. Naik, ASC (on behalf of Mohtarma Benazir Bhutto

and Asif Ali Zardari), requesting therein that since this

NRO, 2007 has been promulgated, as such all cases

should be dropped, emphasizing upon the cases in

Geneva Court; that application was processed and in

routine placed before the then Minister Law (Zahid

Hamid), who opposed the request and wrote a detailed

note that it is not within their ambit so kindly contact

the foreign office. After that file does not show

anything”.

126. Likewise, Mr. Salman Faruqui, Secretary General

to the President also appeared on Court’s call and informed

that no such file existed in his office or at President’s Camp

Office, Rawalpindi.

127. As far as issuing a letter to Attorney General of

Geneva dated 7th April 2008 by Malik Muhammad Qayyum

Const.P.76/2007, etc. 197

(the then Attorney General) is concerned, it seems that he

had done so in his personal capacity, against the Rules of

Business, 1973. In this behalf it may be noted that under Rule

14 of the Rules of Business, 1973, he was required to consult

the Law, Justice and Human Rights Division on all legal

questions, arising out of any case. Had he consulted the Law,

Justice & Human Rights Division, he would have been

advised not to send any letter in this regard because the

Ministry of Law & Justice had already declined such request

as was pointed out by the Secretary Law & Justice Division,

whose statement has been referred to hereinabove.

128. It is also important to note that under sub-Rule

(2) of Rule 14 of the Rules of Business, 1973, no Division shall

consult the Attorney General except through the Law, Justice

& Human Rights Division and in accordance with the

procedure laid down by that Division. Beside it, stand taken

by Malik Muhammad Qayyum that he was asked by the then

President of Pakistan to do so, does not seem to be correct

because under Rule 5(11-A) of the Rules of Business, 1973,

verbal orders given by a functionary of the Government

should, as a matter of routine, be reduced to writing and

submitted to the issuing authority; if time permits, the

confirmation shall invariably be taken before initiating

Const.P.76/2007, etc. 198

action; however, in an exigency, where action is required to

be taken immediately or it is not possible to obtain written

confirmation of the orders before initiating actions,

functionary to whom the verbal orders are given shall take

the action so required and at the first available opportunity,

obtain the requisite confirmation while submitting to the

issuing authority a report of the action taken by him. The

statement of Mr. Salman Faruqui, Secretary General to the

President, reflects that no such file exists. Since Malik

Muhammad Qayyum, the then Attorney General for

Pakistan has done so in violation of the Rules of Business,

1973, therefore, he is liable to account for his such action.

129. Section 21 of the NAO, 1999 is a comprehensive

provision of law, which spells out the nature of the request to

a Foreign State for mutual legal assistance including; freezing

of assets to the extent to which the assets are believed on

reasonable ground to be situated in that State; confiscate

articles and forfeit assets to the extent to which the articles or

assets, as the case may be, are believed to be located in that

State; transfer to Pakistan any such evidence, documents,

things, articles, assets or proceeds realized from the disposal

of such articles or assets, etc. We believe that to curb the

culture of corruption and corrupt practices globally it has

Const.P.76/2007, etc. 199

become necessary to enact such law on the basis of which the

objects noted hereinabove could be achieved.

130. Learned counsel appearing for the petitioners

impressed upon the arguments that on the one hand in

pursuance of the NRO, 2007, the cases against the ‘holders of

public office’ either have been withdrawn or terminated, who

should have been found guilty for the corruption or corrupt

practices (under Section 9 of the NAO, 1999) and sentenced

to imprisonment as well as fine, and on the other hand, the

‘holders of public office’ who have been convicted and

sentenced, and against their convictions, appeals pending

either before the High Court or the Supreme Court, have

been withdrawn. Similarly against those ‘holders of public

office’, who were acquitted but against their acquittal

proceedings were pending before the superior Courts, have

also been illegally provided clean-chit by withdrawal or

termination of the proceedings, contrary to constitution and

the law, knowing well that this country is signatory to the

UN Convention Against Corruption. A perusal of UN

Convention Against Corruption indicates that the state had

responsibility to develop and implement or maintain

effective, coordinated anti-corruption policies; to take

measures to prevent money laundering; to take measures for

Const.P.76/2007, etc. 200

freezing, seizure and confiscation of proceeds of crime,

derived from offences established in accordance with the

Convention, or the property the value of which corresponds

to that of such proceeds, property, equipment or other

instrumentalities used in or destined for use in offences

established in accordance with the Convention, etc.; State

parties shall consider assisting each other in investigations of

and proceedings in civil and administrative matters relating

to corruption; as well as affording to one another the widest

measure of mutual legal assistance in investigations,

prosecutions, and judicial proceedings in relation to the

offences covered by the Convention; prevention and

detection of transfers of proceeds of crime. On the other

hand, the promulgation of the NRO, 2007, instead of

preventing corruption and corrupt practices, has encouraged

the same. We have no option but to agree with the contention

of the learned counsel for the petitioners, as the same is based

on legal and logical premise.

131. We have already pointed out in the preceding

paras of this judgment that under the provisions of NAO,

1999, there is a separate scheme for the withdrawal of cases.

However, Article 45 of the Constitution confers power upon

the President of Pakistan to the effect that the President shall

Const.P.76/2007, etc. 201

have power to grant pardon, reprieve and respite, and to

remit, suspend or commute any sentence passed by any

Court, tribunal or other authority. The cases under Section

33F of the NAO, 1999, inserted through Section 7 of the NRO,

2007, are also not covered under Article 45 of the

Constitution and in this behalf no other law has been referred

to by any of the learned counsel appearing for the parties.

There is no cavil with the proposition that the criminal

Courts, including the Trial, Appellate and Revisional, are

empowered to acquit, set aside the conviction/ sentence or

quash the proceedings, but without adhering to this

provision, the legislative authority, in its wisdom, has

withdrawn or terminated the cases or proceedings,

purportedly, in exercise of power, not vested in it.

Consequently, all the ‘holders of public office’ have not been

dealt with in accordance with law, principle of which has

been enshrined in Article 4 of the Constitution.

132. At this juncture, it may occur in one’s mind that

what are the judicial powers. This question has not been

discussed in Mehram Ali’s case (PLD 1998 SC 1445) or in

Liaquat Hussain’s case (PLD 1999 SC 504). However, one of

the learned counsel has placed on record a judgment in the

case of Brandy v. Human Rights & Equal Opportunity

Const.P.76/2007, etc. 202

Commission (183 CLR 245) from the Australian jurisdiction

passed by High Court of Australia, which is the Apex Court

of the country. Relevant portion therefrom is reproduced

hereinbelow for ready reference:-

“9. Difficulty arises in attempting to formulate a

comprehensive definition of judicial power not so much

because it consists of a number of factors as because the

combination is not always the same. It is hard to point

to any essential or constant characteristic. Moreover,

there are functions which, when performed by a court,

constitute the exercise of judicial power but, when

performed by some other body, do not (66 See Reg. v.

Davison [1954] HCA 46; (1954) 90 CLR 353 at 368).

These difficulties were recognized by the Court in

Precision Data Holdings Ltd. v. Wills (67 [1991] HCA

58; (1991) 173 CLR 167 at 188-189):

“The acknowledged difficulty, if not

impossibility, of framing a definition of

judicial power that is at once exclusive and

exhaustive arises from the circumstance

that many positive features which are

essential to the exercise of the power are

not by themselves conclusive of it. Thus,

although the finding of facts and the

making of value judgments, even the

formation of an opinion as to the legal

rights and obligations of parties, are

common ingredients in the exercise of

judicial power, they may also be elements

in the exercise of administrative and

legislative power."

One is tempted to say that, in the end, judicial power is

the power exercised by courts and can only be defined

by reference to what courts do and the way in which

they do it, rather than by recourse to any other

Const.P.76/2007, etc. 203

classification of functions. But that would be to place

reliance upon the elements of history and policy which,

whilst they are legitimate considerations, cannot be

conclusive.

10. It is traditional to start with the definition advanced

by Griffith CJ in Huddart, Parker and Co. Proprietary

Ltd. v. Moorehead (68 [1909] HCA 36; (1909) 8 CLR 330

at 357) in which he spoke of the concept of judicial

power in terms of the binding and authoritative

decision of controversies between subjects or between

subjects and the Crown made by a tribunal which is

called upon to take action. However, it is not every

binding and authoritative decision made in the

determination of a dispute which constitutes the

exercise of judicial power. A legislative or

administrative decision may answer that description.

Another important element which distinguishes a

judicial decision is that it determines existing rights and

duties and does so according to law. That is to say, it

does so by the application of a pre-existing standard

rather than by the formulation of policy or the exercise

of an administrative discretion. Thus Kitto J in Reg. v.

Gallagher; Ex parte Aberdare Collieries (69 (1963) 37

ALJR 40 at 43) said that judicial power consists of the

"giving of decisions in the nature of adjudications upon

disputes as to rights or obligations arising from the

operation of the law upon past events or conduct". But

again, as was pointed out in Re Cram; Ex parte

Newcastle Wallsend Coal Co. Pty. Ltd. (70 [1987] HCA

29;(1987) 163 CLR 140 at 149) , the exercise of nonjudicial

functions, for example, arbitral powers, may

also involve the determination of existing rights and

Const.P.76/2007, etc. 204

obligations if only as the basis for prescribing future

rights and obligations.”

133. It is a principle of law that binding judgment,

either of acquittal or conviction, can only be withdrawn b