While the premier’s counsel held on tightly to the presidential immunity rope during Thursday’s proceedings of the contempt case, the Supreme Court asserted there was “no bar” on writing a letter to Swiss authorities.
Prime Minister Yousaf Raza Gilani’s counsel Barrister Aitzaz Ahsan – who relied heavily on technical defence terminology and rhetoric throughout the proceedings – opened his arguments by presenting before the apex court a United Nations’ report titled “Preliminary report on immunity of state officials from foreign criminal jurisdiction” to authenticate his claim that President Asif Ali Zardari enjoyed presidential immunity while he was in office.
Referring to the six options that the Supreme Court had rolled out before the premier on January 10, Aitzaz said that this was a perfect example of a “pre-trial” and these options were nothing but a conundrum and were like “nuclear bombs, daisy-cutters and carpet bombing”.
Justice Asif Saeed Khosa – one of the judges of the seven-member bench hearing the contempt case against Prime Minister Gilani – replied that options were still open and these were like “hydrogen bombs”. Meanwhile, Justice Sarmad Jalal warned that anyone who dared to disregard the apex court’s order will face these “daisy cutters”.
To argue his case, Aitzaz cited prominent examples from the history of international law of presidential immunity. He cited an incident when Belgium issued arrest warrants for Congo’s foreign minister and the government of Congo refused to present him before the Belgian magistrate citing international immunity. Aitzaz asserted that not only presidents, but even foreign ministers enjoy international immunity.
Responding to this, Justice Khosa said that once an international magistrate had summoned the Sudanese president and successfully issued arrest warrants against him. In his rebuttal, Aitzaz said that this was an exception and in cases of war crimes, presidents could be summoned by the International Court of Justice — which was not the case with President Zardari.
Justice Nasirul Mulk observed that ambassadors did indeed possess immunity for representing the president and the state but added that ambassadors or presidents could be tried under some specific charges.
In his prompt reply, Aitzaz said that once the French court had summoned Djibouti’s president as a witness in a case but the International Court of Justice granted immunity to him.
Without seeking constitutional immunity, the premier’s counsel concluded his arguments on international immunity for the president alone. He contended that besides the United Nations, the International Court of Justice had also acknowledged this provision.
“Heads of Congo and Djibouti were provided immunity on this very same reason and Libya’s Moammar Qaddafi was given an exception in a lawsuit in France as well,” asserted Aitzaz.
He insisted that the president enjoyed immunity in both civil and criminal cases. To this, Justice Sarmad Jalal Osmany said: “There is no bar on writing a letter to Swiss authorities.”
The bench questioned the defence counsellor: “Don’t you understand why the court was forced to pass such a strong order to get its judgment implemented?
“We tried to convince you time and again but to no avail. And even now the government is wilfully disobeying the court’s order,” Justice Ejaz Chaudhry and Justice Khosa observed.
Aitzaz replied that contempt proceedings should have been the last option to which Justice Khosa said: “When other options are much more coercive, then a contempt case becomes the only viable option.”
Aitzaz will conclude his arguments today (Friday) and then Attorney General Irfan Qadir, the prosecutor in the case, will start his arguments.
Published in The Express Tribune, April 20th, 2012.
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