The Swiss cases saga —III

The writer, a former senator, is a barrister (iftikhar.ahmad@tribune.com.pk)

Daniel Zapelli closed down the prosecution after the NRO was promulgated and had the freezing order on bank accounts removed. He further declared, perhaps by way of reply to a question by a media man that he couldn’t proceed against President Asif Ali Zardari in the face of his constitutional immunity. This was Geneva canton’s own prosecution and not something started by Pakistan. It is erroneous and misleading to presume that Pakistan can start or stop a Swiss case against Zardari whenever it wants. The promulgation of the NRO had no force to stop a Swiss prosecution and the case could have proceeded regardless. However, it was the request by Pakistan to withdraw as a civil party in the case, that suddenly weakened the prosecution’s case and Zapelli was left with no choice but to drop the prosecution, because of fear of failure. Importantly enough, there was no successful outcome in Pakistan of the prosecution in SGS-Cotecna case, which could have emboldened the Swiss prosecution case.

Now the decision of the Supreme Court has more or less directed the government of Pakistan to invoke legal assistance on criminal matters by taking up the matter with the government of Switzerland. This entails the request to freeze accounts or trace them if they were withdrawn, start an inquiry, collect evidence and prosecute under new money laundering charges and finally have the plundered wealth returned to Pakistan. This is to be a new request to the government of Switzerland which would pass on the appeal to the office of their attorney-general, cutting across the legacies of the previous prosecutions. Any reliance by the government of Pakistan — on what Zapelli, the chief prosecutor of Geneva canton, has recently stated about his inability to recommence the proceedings or the immunity of President Zardari — is neither here nor there. The Supreme Court’s decision and directions in this regard are unambiguous and in consonance with the Swiss legal system. It would not be Mr Zapelli, but the federal attorney-general’s place to respond to Pakistan’s fresh request.

Now the question pivots around the immunity enjoyed by the president. The matter of immunity under the constitution is to be decided by the Supreme Court in due course. Importantly, the mere incidence of any letter initiated by Pakistan to commence proceedings, would take away the immunity in Switzerland otherwise available to President Zardari. Swiss law provides serving heads of state absolute immunity against criminal proceedings. The immunity of heads of state is a principle embodied in customary international law.  This immunity is weakened in the following
two cases.

When a state expressly waives the immunity of its head of state, the head of state cannot invoke immunity (if the Supreme Court’s decision is followed and the Attorney General writes to the Swiss attorney-general to start a new prosecution). When a head of state leaves office, immunity no longer holds. A former head of state can claim immunity at most for actions undertaken in the exercise of official functions. If such a connection does not exist, the former head of state can be legally prosecuted.

Finally, no prosecution in Switzerland will ever see the light of day until Pakistani courts decide against Zardari and Jens Schlegelmilch in the SGS-Cotecna case, and a certificate of conviction is produced in evidence by Pakistan — in their capacity as a civil party to the case.

Published  in the Express Tribune, June 5^th, 2010.