As a weary Pakistan gears up for the by-now hallowed ritual of ‘PM ko jootay maro’, it is worth going back and remembering what this whole mess is about.
In 1997, the PML-N government wrote to the Swiss authorities and asked them to investigate allegations of corruption against various persons, including one Asif Ali Zardari. Subsequently, various accountability cases were launched against Mr Zardari. None of those cases ever reached finality. In 1999, Mr Zardari was convicted in the SGS-Cotecna case by a bench of the Lahore High Court headed by Justice Malik Muhammad Qayyum. However, Justice Qayyum was later found to have privately discussed these cases with various members of the Nawaz Sharif regime and the Supreme Court rightly set the conviction aside.
The Musharraf regime then seemed to give up on the idea of actually getting a conviction, preferring to let matters slide. In 2004, Mr Zardari was released on bail after having spent eight years in jail without ever getting convicted.
In 2007, all cases pending in Pakistan against Mr Zardari disappeared via the National Reconciliation Ordinance (NRO). The-then Attorney General, Justice (retd.) Qayyum wrote to the Swiss authorities on May 22, 2008, and formally withdrew the request for cooperation. Justice Qayyum also informed the Swiss that the prosecution of Mr Zardari had been found to be “politically motivated” and that the contract to SGS-Cotecna had been awarded “in good faith in discharge of official functions”.
Presumably, the Swiss found it reassuring to be told that the prosecution of Mr Zardari had been mala fide by a judge who himself had found that very prosecution not only to be bona fide but fully substantiated. In any event, the Swiss then formally closed their proceedings.
In 2009, the Supreme Court declared that the NRO was a law which — at least in legal terms — had never existed. The 2008 letter by Malik Qayyum was also declared to be illegal, the earlier request was “declared never to have been withdrawn” and through the now famous para 178, the Federal Government was directed to inform the Swiss of this fact. And then the PPP rebelled.
The hearing of the inevitable review petition was first delayed through normal means and then some more farcical. The PPP refused to re-engage the lawyer who had argued the NRO case the first time around and the Supreme Court refused to let the PPP hire new counsel. Eventually, the Court relented, but both the then law minister and his law secretary then refused to appear. Left with no option, the Supreme Court dismissed the review petition.
The SC then repeatedly asked the Federal Government what steps it was taking to implement Para 178. When no reply came, the Court passed an order outlining six options and asked the Federal Government to respond. On the next date, the-then attorney general of Pakistan stated that he had been given no instructions. Had the learned attorney general dropped his trousers and mooned their Lordships, the Federal Government’s response might have been marginally more contemptuous. But only marginally.
Not surprisingly, contempt proceedings followed. Mr Gilani appeared and stated he was shocked, shocked to learn that his instructions regarding compliance had not been followed. In response, the Court repeatedly stated that all contempt proceedings would be dropped if only Mr Gilani would commit to informing the Swiss. But Mr Gilani refused to give this commitment.
Mr Gilani was accordingly found to be in contempt and sentenced till the rising of the court. He was not declared to be disqualified in express terms. Instead, the Court indicated that this was a process to be followed through other means, presumably by means of a referral by the Speaker of the Assembly to the Chief Election Commissioner. The Speaker, however, refused to make any such referral, thereby forcing the Court to intervene again and overrule her decision.
Public discussion of this hullaballoo has tended to focus on two ostensibly competing points. The jiyalas say that the immunity enjoyed by Mr Zardari under the Constitution prevents the letter from being written. And the jaan-nisaars insist that the rule of law trumps all other considerations, immunity be damned.
The problem here is that neither side is being completely honest. This is because all the Federal Government needs to do is to inform the Swiss authorities that they should regard the 2008 letter as never having been written. They do not need to ask for any cases to be reopened. And it is unthinkable that the Swiss would proceed against Mr Zardari so long as he remains president.
Why then is there so much huffing and puffing about immunity? The short answer is that the PPP has decided not to write the letter for tactical reasons and is throwing up a legal smokescreen. The Federal Government has never even pleaded immunity under Article 248 before the SC. Instead, it has studiously avoided the topic, fearing that the Court will shred what little protection now remains available to Mr Zardari.
The Supreme Court is also not helping its cause by making intemperate observations about the need for Mr Zardari to be prosecuted. The truth is also that Mr Zardari enjoys immunity under the Constitution and the Government of Pakistan cannot legally ask the Swiss to prosecute him.
In short, what has happened is that the PPP has constructed a fake argument to distract the Supreme Court and the Supreme Court insists on charging like a mad bull every time the red flag of this dummy argument is waved at it.
Does the Court now have any option but to disqualify the new PM. Yes, it does. What it can and should do is write the damn letter itself and let the Swiss take it over from there. Indeed, Justice Khosa’s famous ‘six options order’ had specifically mentioned this as a possibility.
The PPP has an endless supply of workers happy to sacrifice their seats in exchange for the glory of being a former PM. On the other hand, the Court has limited time and resources, both of which would be better directed towards our fixable problems rather than wasted in playing an endless game of ‘whack-a-mole’ with the PPP.
Time to move on, your Lordships. There is other work to be done.
Published in The Express Tribune, July 10th, 2012.
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