In the latest chapter of the NRO saga, the government wrote to the Supreme Court stating that it was unable to write the letter to Swiss authorities, as this would be a violation of the Constitution, which grants immunity to the president of the country. The reply to the Supreme Court emphasises the fact that the government is responsible for safeguarding the Constitution and if it has to write the letter seeking the reopening of cases, it would require the consent of the whole cabinet as the letter cannot be written by the prime minister acting on his own. This response was placed before the Supreme Court one day before Mr Ashraf was to appear before it. The line taken by the government’s legal team on the matter does not, however, appear to have impressed the Court. The Court has rejected the reply and suggested that a review petition may have been a more appropriate way to respond. It also stated that immunity for the president under the Constitution exists only as far as official acts are concerned.
We have then another stand-off between the Supreme Court and the government. This is not a pleasant situation to be in, all the more so given our experiences over the last months and how the tussle effectively clogged up the system, rendering it ineffective. We seem to be locked in the same situation again. The Court has given the prime minister until August 8 to write the letter to be dispatched to Geneva. We can for now only wonder how things will evolve or what the final outcome will be.
Published in The Express Tribune, July 26th, 2012.
COMMENTS (13)
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"...it would make us the laughing stock before the world due to the farcical nature of the entire situation." Needless fear. The law must take its course. There is nothing farcical about it. The Supreme Court has to struggle to bring some semblance of justice. The Government is making things difficult for justice to prevail. That is the real farce only.
Mirza O Mirza,
Mush's downfall was the result of his moving against the CJ. The lawyer's movement brought down Mush, not Benazir. Until the lawyer's movement and civil society support to it, Mush was not even interested in hearing the name of Benazir. Had it not been for the CJ's refusal to bow down to Mush in 2007, Benazir would have never been able to come back to Pakistan or persuade Mush to sign the NRO. The NRO was a result of Mush's weakness created ONLY by the CJ and the lawyer’s movement. Also, note that the result of Mush’s detention of judges is that Mush is now in self-exile and CJ has been restored despite worst attempts of PPP to resist such restoration. What a twisted narrative of events you have in your mind!
The guard of honour to Mush was given by the PPP instead of initiating treason proceedings against him under Article 6 of the constitution that can only be invoked by the parliament. The PPP did not invoke Article 6 despite vocal and repeated demands from the PML-N. The PPP has always been ready and is always ready to bend over backwards for the army but, unfortunately, the army is still interested only in kicking their backside. What a twisted narrative of events you have in your mind!
The SC’s ability to move against the army in the missing person’s case is complicated by the PPP’s readiness to act as the army’s concubine instead of acting like a government that enforces law and order. The PPP is also not interested even in legislating to plugs the legal gaps that allow the agencies to run amok in Balochistan and elsewhere – just the other day Farhatullah Babar has withdrawn his “private bill” on bringing the ISI under the framework of law! Indeed, the PPP is not interested in governing except to carry out corruption. Nonetheless, despite a back-stabbing PPP drooling to do the army’s bidding, the SC continues to push slowly but surely against the army’s violations of the law, even though I would like to see more consistent and stern punishment to FC so that an example is set and the army learns its place in the system. However your translations of events is quite laughable and totally rhetorical.
What passes for the PPP are just a bunch of thugs and jokers and the biggest of them all has sneakily made himself president on the basis of an illegal law (NRO) before it was obviously struck down. So after pulling this fast one on Pakistan, he holds the country hostage by making the Prime Ministers unofficially claim immunity for him
@Faraz:
AFAIK Indian laws don't allow trial in absentia. Indian courts are notorious for delays and providing long rope (and escape routes) to accused. One of the loopholes is - a case can't be tried without hearing the other part (audi alteram partem), and for that it is essential for accused to be present. The same logic is used in not prosecuting the dead.
@Naseebullah: But, I firmly believe that Pakistani courts can't overlook the law for some folks while providing protection of law to others. Your thinking is for a law of convenience, not a 'law that is equal to all'. You can't corrupt a system of justice, in order to get justice for corruption!!
@karma: That is a mighty neat argument. Why Indua doesn't conduct a trial in absentia for Hafeez Said is beyond me. Since the GOI says that they have incontrovertible evidence in the matter, they should at the very least conduct a speedy trial in absentia.
The elected PM should learn from the example of Gilani, who has presented himself to the court and respected its verdict, what happened to him? On the other hand Gen Mush threw these PCO judges with their families in detention and look what happened with him? He got guard of honor from his handpicked army chief and there is not even a contempt of court case against him. The PM should learn from the example of FC generals who refused to cooperate with the PCO court many a times. What happened to them, nothing. The PM should learn from the example of Aqeel who broke the police station where he was caught for corruption of many billions. What happened to him, nothing but honorable discharge from prosecution! The PM should learn from Sharif who stormed the SC in session, what happened to them, nothing, not even contempt of court. The PM and elected coalition must learn from the above examples where there is a pattern of non cooperation with the court and always getting away.
Only today Justice Khosa has made the following statement in the court "“We are not asking for his [president] prosecution. He is our president as well, is a symbol of respect and dignity for all of us and is our face out of Pakistan,” Looks like the SC is going to take a U turn and the justice system would become more realistic just like they became when they quickly decided to release Ray Davis and flown him out of the country. May be Mush's party men have shown the way how to control the PCO judges? When the president cannot be prosecuted as the above statement finally admits then what is all this show in the courts for nothing? Why not start the cases a day after his term? Why being so militant about the letter now? Why would these courts not deal with the case themselves? Be that as it may, looks like the real powers have told the judges to cool it and behave properly. Let us see what happens about the case in Balochistan, Asghar Khan, Mehran Bank, etc.
@ Mirza
Why you keep ranting about PCO judges all the time in different posts. Is your deputy prime minister not part of this government under whose tenure all acts including PCO were legitimized by the then Parliament and made part of the constitution in 2003? Why don't they simply bring an amendment in that too and send all these PCO (as you say) judges home ?
Also please emphasize on the word "Criminal proceedings" in Article 248(1). Is writing a letter an initiation of criminal proceeding ? also read part 4 where it says that the civil proceedings need to start at least 60 days before he joins the office. and we are talking about late 90's here.
I wonder how people just close their eyes and tend to portray whatever they can do best to show their biased opinion
@karma: Like you i not a fan of Zardari but the reality is that the judges are not trying to send him again to jail. they are just simply trying to bring back the plundered money of the state. any how the judges are not responsible for keeping him jailed for years.
the courts new position shows that the courts are not against any figure, party or any institution. they are just sincere working for national interest.
I am no fan of Zardari. Can the courts explain why he was detained for 20 years in prison and nothing could be proved against him, Why take it out on the minions like the PMs when the SC just cant or will not act against mililtary and FC who have heaped untold misery on Pakistan.
The insistence of a court to force a PM to write a letter to another country (Foreign policy domain) to force prosecution of one of its citizens (let alone a president) without any hearing on the merits & evidence on the case concerned is strange. It is basing its judgement purely on NRO not being valid - which was the basis for the Swiss appeals court to reject the cases against Zardari.
Would the court extend the same treatment to all Pakistani citizens and ask PM to write a letter to India, asking India to prosecute Hafiz Saeed in an Indian court, without checking the merits of the case? NRO didn't provide any protection to Hafiz and he doesn't enjoy immunity. India has evidence against this man, just as swiss authorities claimed evidence against Zardari. So, why what is fair for Zardari not fair for Hafiz Saeed? Because it isn't politically convenient?
Here is what the constitution says "No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office." and here is what the PCO judges said "It also stated that immunity for the president under the Constitution exists only as far as official acts are concerned." The words "instituted or continued" means no new cases while in office and no continuation of existing cases while in office. These are simple words of English without any complication. Where is the need for creating doubts and require explanation?