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 The 2008 letter by Malik Qayyum was also declared to be illegal, the earlier request was “declared never to have been withdrawn” and through the now famous para 178, the Federal Government was directed to inform the Swiss of this fact.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.
COMMENTS (32)
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Mr Jiyala, explain to me where Zardari got the money to buy the property he has now?
Remember the Surrey Estate and other countless estates? He was a poor man by family.
Why does every one forget that both BB & Zardari were convicted by a Swiss court? (http://www.nytimes.com/2003/08/14/world/bhutto-appeals-swiss-conviction-on-money-laundering-charge.html). The money in the Swiss banks belongs to the people of Pakistan and every effort should be made to get it back, otherwise Zardari and his children will get to spend the looted wealth.
@Khan Jr: Well said.
@ farukh zain thank you for your comment May be that is the reason he is being honest
Now an other question arise if the judges themselves could write the proposed letter to Swiss Authorities,Why have they been insisting on PM Gilani to write the letter?Why they called him time n again in the court to humiliate the whole government n parliament?why they have charged him in the contempt of court, covicted n disqualified him?why have they been wasting time n money of the nation?why have they been ignoring to provide justice to common folk in the time,they have been playing politics with us?
@Mirza: Who wrote the letter to election commission that YRG is not PM . No body. I 5 was the decision and in less than 60 minutes he was notified. You are right that PCO judge should send copy of his decision to Swiss embassy. Then same judges should write another letter stating that no case should not be opened as he has domestic and international immunity.
Rightist prevail in Pakistan- all the way from Judiciary to DeP to the 'Deep State".
Constitution is clear about Presidential Immunity that neither a case can be initiated nor be continued till the term of his office.SC,CJ n the learned advocate are trying to find out an extra constitutional way.The judgements of SC regarding Paragraph 178 of NRO judgment are extra constitutional rather violation of constitution.There is no need to demand immunity from SC as there is no imbiguity in it.All the previous presidents had been enjoying this immunity including unconstitutional presidents.
@Logic Europe: Mr. Naqvi is an advocate not a journalist..
My previous comments were all ignored. Here is another attempt. It is a fact that these same judges have kept Zardari in jail without ever proving a single charge against him for two decades. It is a fact that Malik Q and PML-N knew full well that these cases are politically motivated and that is why it was only Malik Q who could shatter the case in the Swiss court by admitting its weaknesses. It is a fact that Swiss attorney general has said that they cannot prosecute AAZ and if Pakistan is interested they have their own courts to do that. It is a fact that these judges have never tried to wrap up any case against AAZ in two decades so they can continue using it without ever giving a guilty verdict. Even a life sentence would end before two decades and here the man was never convicted! When the SC has issued an order that Malik Q’S letter to Swiss is null and void and never existed, then what is the need to write a letter to the Swiss? The whole world knows about this 2009 decision and Swiss are not living in caves. Fact is the whole world knows that writing the letter to Swiss is an exercise in futility then why insist? The answer is who is the biggest Choudhry? In addition the PPP letter to Swiss could be used for many decades (just like the old Swiss case) against the party even after the death of its leaders to prove that it is not “us” but their own party admitted.
@Khalq e Khuda -- I am not aware of any such offer; certainly none is recorded in the order sheets. In any event, why was the AG "offering"? Why not just do it?
If this be the case, then attempt by the author to strike a balance between SC and Executive, is quite unnecessary. His arguments should be directed at judges to disduade them of their insistence on unconstitutuional step.
The Author, himself is of the view that, " 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"; at the same time he suggests the Supreme Court to ignore the constitutional provision and write the letter itself. Defying the constitution even with very pious intention must be avoided. The attitude of the Supreme Court against the present Government appears to be highly biased.
Correction Mr Naqvi:
During the proceedings of the Court the attorney General did offer to write the letter you stated. The Supreme Court refused stating a set of information that has to be included in the letter.
Both the waring parties-SC and PPP- have their own constituencies. SC' constituency is the educated urban middle class mainly of major metropolis who buy the politicized notion of corruption and selective accountability. PPP's constituency consists of rural population and less affluent people who rightly and wrongly conceive it to be their representative and vote for it. The SC supporters believes more in some selected 'up right and honest' urbanites who can make things works and are dejected by the elected representatives of people considering them corrupt and inefficient. They have a general disregard for the elections and the political process. On the contrary commoners have no other means to express themselves or strive to get their rights except by voting. In short, this is the struggle between two competing ideologies one is represented by the SC and the other by the PPP.
Validity of case is very obvious from the character of people who are occupying our courts . A judge takes orders from sharif brothers and punishes AZ to maximum as ordered. Then same judge in capacity of chief law officer of country write to Swiss that case was malafide and politically motivated!!!. Nawaz sharif has admitted himself in famous interview that he started cases against PPP at the behest of ISI. Whem BB first government was dissolved and AZ was taken to jail from PM house. Then he was taken to president house from jail to be sworn as minister by same president!!!!! Is their any doubt that all these cases were politically motivated???? There are hundreds of cases where innocents have been sentenced for murder and rape. With DNA evidence have been exonerated. There is famous case of atomic espionage in USA where some one was hanged and later proved innocent. AZ has never been punished yet. Nawaz was punished in high jacking case. PPP was extremely obedient to court till that letter.SC should have moral courage to say what it believe that Presiedent has immunity but not AZ but sorry to say they don't have that. Historians will write few years later that all zeal shown by PCO judges was politically motivated.
"Mr Zardari enjoys immunity under the Constitution and the Government of Pakistan cannot legally ask the Swiss to prosecute him." So far this is true then who is wrong the Supreme Court that insists on writing of the "damn" letter or the Government that refusees to violate the Constitution----obviously it is the Supreme Court. The Supreme Court that, " insists on charging like a mad bull" ---- should the mad bulls be allowed anywhere close to a responsible position of deciding our fate, the answer is NO "mad bulls" have nothing to do with human affairs and should not be allowed.
When a supreme court judge becomes contraversial he should no longer judge the conduct of supreme court has many people to believe that it has political motivations or revenge agenda tJudges are involved getting two multimillion rupees plots each as is alleged .No body can accept that fair
Why has Pakistanis not learnt to say " None of Them" as a theme as they all have a suspect track record while in power and no acheivements during their terms either ! By the way don't even trust those who promise you a garden of Roses ! (PTI) as they really have not been tested yet !
The question is what kind of judgement are the esteemed Judges of the Supreme Court showing, especially the CJ who is and was utterly blind to his son's and his wife's corruption to the tune of crores of rupees, that they feel obliged to lose all sense and go charging like a mad bull? Is the best Pakistan can do for the quality of judges?
Finally a sane voice.
Feisal H Naqvi writes: "None of those cases ever reached finality" and conveniently glosses over what took place in Switzerland in 2003.
The late Benazir Bhutto and Asif Ali Zardari were convicted of receiving bribes from pre-shipment inspection companies Cotecna/SGS and sentenced to imprisonment for six months with a fine of $50,000 each by Daniel Devaud, a Swiss Investigating Magistrate, on July 30, 2003. Benazir and Zardari desperately appealed the case and the Tribunal de Police in Geneva, comprising three judges and a six-member jury, suspended the sentence until the hearing of the appeal. Due to inordinate delays - due to Zardari's supposed 'ill-health', etc - the appeal hearing was never completed because Musharraf, keen to do a deal so as he could hang onto power, brought about his NRO under which the government of Pakistan withdrew the case against the pair.
All legal logic aside, the motives of the PPP in taking on the Supreme Court have not been considered. The fact is, despite all the tricks in his bag, Mr. Asif Zardari is frightened to the core about the possibility of reopening of the cases against him. And mind you, there are, reportedly, many cases. The learned advocate should kindly throw some light on what would happen when Mr. Zardari is no longer the president. And also, what about the other cases against others that the NRO quashed! As for his advice to the Supreme Court in the last para, let the SC judges decide the priority of matters before them. The judges are a better judge of the relative importance of the cases. One thing must be said, extraordinary cases required extraordinary measures!
Brilliant, this qualifies as a fitting follow up on the recent article by Markandey Katju on the same issue.
A good professional advice with factual analysis. SC should admire it.
Very well said Mr. Naqvi!
A rare balanced article from any journalist for at least last one year! Mr Naqvi I appreciate your wisdom