Immunity is not the issue
23 January, 2012
By Asif Ezdi
First, as Aitzaz put it, "today is an important day in Pakistan's legal and constitutional history as the prime minister himself appeared before the court." That is hardly the case, because the principle that the prime minister can be asked to appear before the court is well-established and Gilani was not the first holder of that office to go in person to the Supreme Court.
Second, Aitzaz said, "the Prime minister has accepted the majesty of the law and the majesty of the Supreme Court." That is simply not true. As long as Gilani continues to defy the Supreme Court's orders, the claim that he respects the law and the judiciary will lack credibility.
These two assertions were political statements and perhaps need not be taken too seriously. After all, Aitzaz is not only a lawyer but also an erstwhile estranged PPP leader who has now returned to the fold and will be contesting in two months on the party ticket for a seat in the Senate.
But the third point Aitzaz made is more important, because it concerns the legal merits of the case. Aitzaz said that he had been "compelled" by the court to take up the question of presidential immunity, although this was not the issue. This too is not borne out by facts. It was Gilani who invoked presidential immunity and made it the central point of his defence. He told the court that the government would not write to the Swiss government because Zardari enjoyed complete immunity within the country and abroad. After this, Aitzaz can hardly complain that the court decided to address this issue.
Some of the press coverage on the Supreme Court proceedings suggests that the outcome of the contempt case against Gilani hinges on the president's immunity. If this view were to be upheld, the entire nature of the case would be transformed because so far the Supreme Court has not linked its orders for the issuance of the letter to the Swiss authorities to a determination that Zardari does not enjoy presidential immunity.
Contrary to popular belief, the order issued by the Supreme Court on Dec 16, 2009, declaring the NRO to be invalid does not ask the government to request the Swiss authorities to reopen the case against Zardari. The judgment only calls on the government to seek the revival of all requests made to foreign countries, including Switzerland, for mutual legal assistance in the recovery of laundered money. The court's order is applicable to all those requests which were withdrawn with the promulgation of the NRO, whether against Zardari or any other beneficiary of the ordinance, or even against those such as Schlegelmilch, Zardari's Swiss lawyer, who were not covered by the NRO amnesty.
In addition to the Swiss case, there are also other cases in foreign countries, such as Surrey Palace in Britain and Food for Oil in Spain, in which the government withdrew its claims as part of the NRO deal. Moreover, Zardari is not the only accused person in these cases. In fact, the letter sent by Qayyum, the-then attorney general, to the Swiss authorities in April 2008, specifically requests the withdrawal of Pakistan's claims not only against Zardari but against Schlegelmilch and "any other third party," and not just in the Cotecna case at Geneva but also "any other proceedings possibly initiated in Switzerland." Therefore, even if hypothetically the government's position on Zardari's immunity were to be accepted, it would still be bound to request the reinstatement of its claims against the other accused. In his court appearance, Gilani failed to offer any explanation why the government has not done so.
Aitzaz clearly has to argue a difficult brief, but partly at least he has himself to blame. Until a few days before the hearing, he had maintained consistently for two years that the government would have to write to the Swiss authorities in compliance with the court's order. But at the hearing itself, he made a complete about-turn, arguing that the government did not have the "capacity" to write the letter as long as Zardari remains in the Presidency. True, a lawyer has to suit his arguments to the requirements of his client. True also that Aitzaz has not broken any law or any professional code of ethics. But he might have forfeited his unofficial position as the keeper of the conscience of Pakistan's lawyer fraternity.
While stating emphatically that the government would not write to the Swiss authorities, Aitzaz had few solid arguments to present in support of his stand. For instance, he contended that the issue was not whether Zardari enjoyed immunity, but whether Gilani believed in good faith that Zardari enjoyed immunity. If this kind of reasoning were accepted, everyone would be free to flout a court's orders simply by asserting that they honestly believed them to be wrong.
Furthermore, in arguing that the court must automatically grant immunity to Zardari under Article 248, Aitzaz sought to draw a parallel with Article 209 which stipulates that judges of the Supreme Court and High Court can only be removed from office after an adverse finding by the Supreme Judicial Council. If someone were to petition the Lahore High Court against the sitting chief justice of Pakistan, Aitzaz inquired, would he not invoke Article 209?
This is a false analogy because the judges, unlike the president, do not have any immunity from criminal process. Criminal proceedings can therefore be started against them as against any ordinary citizen of Pakistan. Article 209 comes into play only when a judge is to be removed from office.
Aitzaz has also been arguing in his media appearances and in TV talk shows that the president enjoys full immunity from the criminal jurisdiction of foreign countries under the terms of the "Vienna Conventions of 1961 and 1963." This is completely wrong. There is no international convention which grants immunity to foreign leaders. Anyone who has taken the trouble to read these two conventions would know that they deal with diplomatic and consular relations, respectively, including the immunities accorded to members of diplomatic and consular missions. They have nothing whatsoever to do with the immunities of foreign heads of state or government. It is truly amazing that not only a top lawyer like Aitzaz but also at least one leading English newspaper should have been talking of the immunities supposedly given to foreign heads of state by the "Vienna Conventions" when they do not touch this subject at all.
Aitzaz is right about one thing, however. The immunity from criminal proceedings given to the president under Article 248 is complete. As long as he is in office, this article prohibits the institution or continuation of criminal proceedings against the president "in any court." Aitzaz has argued on the basis of this provision that the government cannot request the Swiss authorities to reopen the case against Zardari.
This is a flawed argument. The Supreme Court has not ordered the institution or continuation of criminal proceedings against Zardari. The court has only ordered the government to revive its illegally withdrawn requests to foreign countries for legal assistance in the recovery of laundered money. This is not against the letter or spirit of Article 248. There are other co-accused besides Zardari in these cases and the government's failure to take this action would result in the loss of huge amounts of public money. At issue is not presidential immunity but the reversal of action taken by the government under a law which has been declared to have been void all the time.
The writer is a former member of the Foreign Service.
Courtesy: The News