NRO implementation: Dismissing fears, SC offers cornered govt breathing room

Judge says courts do not want President to be prosecuted since he has immunity; advises govt to file review petition.

Qamar Zaman July 25, 2012


Those charging the apex court, openly and discreetly, of brazenly victimising the Pakistan Peoples Party (PPP)-led government would have been caught off guard on Wednesday.

The Supreme Court, which, many charged, had set itself to make quick work of another prime minister, said that it did not plan on any “adverse” moves, and even offered a helping hand to the government to find a solution that could ‘vindicate’ both sides on an issue that has become an impasse: The writing of a letter to Swiss authorities retracting an earlier request to remove Pakistan from graft cases against President Asif Ali Zardari.

The issue has already cost one prime minister, Yousaf Raza Gilani, his seat. Gilani had continuously refused to write the letter despite a number of direct orders by the court.

During Wednesday’s hearing of the National Reconciliation Ordinance (NRO) implementation case, which includes the writing of the letter to Swiss authorities, Justice Asif Saeed Khosa observed: “It seems that the nation is terrified … for God’s sake don’t be; we do not want to send a PM home everyday … nothing adverse is going to happen at this juncture.”

Judge Khosa adjourned the case for two weeks, until August 8, after Attorney-General Irfan Qadir, representing the government, asked for time to make “serious and genuine efforts” to resolve the stand-off with the judiciary on the matter.

“Earlier, the entire country was looking at us and now it will be looking at you,” the bench observed.

On Tuesday, the attorney-general had urged the court to withdraw its orders, calling them “un-implementable” and contrary to the Constitution. “We trust that it is not impossible to bridge the gap between stated positions of the two institutions,” said Justice Khosa.

Immunity for the president

Khosa went on to add that the court did not want to derail the democratic system and even offered to write a letter to the Swiss authorities, if requested by the government, saying President Zardari had immunity from prosecution as head of state. However, the government never claimed presidential immunity under Article 248 of the Constitution, Khosa said.

“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,” the judge added.

The court observed that “a letter is to be sent to Swiss authorities for withdrawal of instructions passed by former attorney general Malik Abdul Qayyum but a political party (without naming PPP) has a stated position that it will not write the letter till Asif Ali Zardari is president.”

Politics is all about adjustments but “from your end adjustment is not possible,” Justice Khosa said while addressing the attorney-general.

Preconceived notions

Earlier, the court asked the attorney-general whether the “court order had been complied with or not” on three separate occasions. When the attorney-general replied in the affirmative, the bench said: “No you did nothing, except make plans to thwart implementation.”

The attorney-general went on to add that he had serious reservations about the orders of the court, saying former prime minister Yousaf Raza Gilani had been thrown out of office unconstitutionally.  When the court informed the attorney-general that he could raise these issues in a review petition, Qadir said the government would file a review but it needed time.

“You should have said it straight away that you need more time,” observed Justice Khosa, to which the attorney-general replied that he thought this request would have been denied by the court.  The judge pacified the otherwise firebrand Qadir, saying the court was at a loss about such perceptions, since the bench never made any such statements.

At one point in time, when the attorney-general asked Justice Khosa to recuse himself from the bench as he was not a part of this bench when the NRO case begun, the judge fired back by disclosing a candid conversation between the attorney-general and him.

“Let everybody know today that you (attorney-general) had visited Geneva twice and had told me that President Asif Ali Zardari was convicted for money laundering and you had also said that he (President) should be given more sentence,” said Justice Khosa, a claim confirmed by the attorney-general.

(Read: Tangled web)

Published in The Express Tribune, July 26th, 2012.


Sameer | 11 years ago | Reply

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 the need for creating is doubts and requires explanation? 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.

AnisAqeel | 11 years ago | Reply

@Prometheus: It is not a matter of writing or not writing a letter but breach of constitution related to treason that SC wants to commit at the cost of present Government. Once letter is written the Presidential immunity will seize and this clause of immunity will seize in future while referencing this letter and the case.

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