LAHORE (MIAN DAWOOD) – Will the Swiss cases against President Asif Ali Zardari be still alive and follow him when he serves out his five-year term in August next year and loses the immunity he enjoys while in office?
Is the government using delaying tactics to make the cases time-barred and make it impossible for anyone to start proceedings.
These questions are under discussion in legal as well as political circles and the people have divergent viewpoints to offer.
Some of them, approached by The Nation, said that the cases against President Zardari will “die their death” by September 8, 2012 and after that day they can’t be taken up by any court.
However, there are others who are of the considered opinion that the pending cases can be revived anytime and there is no deadline for the purpose.
Experts have also different views on the issue of writing letter to Swiss authorities and the immunity available to the President under Article 248 of the Constitution.
Barrister Zafarullah Khan believes that it has already been decided by the US Supreme Court that all heads of State, small or big, of the world have immunity against criminal prosecution in all the countries.
Answering a question about the viewpoint of a former Justice of Indian Supreme Court Markan Day Katjue that Pakistan apex court had transgressed its jurisdiction by convicting the Prime Minister on the contempt charge, the senior lawyer said there is no ambiguity in Article 248.
He also referred to Paragraph 100 of the SC verdict on NRO Review Petition which says “It is to be noted that while making request to the foreign State for mutual legal assistance (request for the recovery of money), no request for criminal proceeding in such a State can be demanded.
However, courts of the said State may proceed independently for an action which falls with in the definition of their municipal laws, governing criminal actions.”
“The letter to Swiss authorities can’t be written until the Pakistani government starts criminal prosecution in the motherland,” Khan said, stressing that Article 61 of UN Convention on Corruption, 2005 bounded the Pakistani government to do this.
Commenting on the issue of time line in respect of the pending cases in Swiss courts, Khan says that Article 97 of Criminal Procedure Code of Switzerland deals with it which says the cases against Zardari will die their death on September 8, 2012 because the previous government of Mian Nawaz Sharif had on September 8, 1997 written a letter to Swiss authorities for initiating criminal proceedings against Mr Zardari.
The constitution of a Judicial Commission by the Supreme Court of Pakistan will be the violation of the Constitution and raise questions over the credibility of the correspondence of the commission, the expert stated.
He pointed out that the Pakistani government could only write letter to Swiss authorities demanding recovery of 60 million dollars after becoming party through mutual legal assistance.
Khan said the writing of letter would be mean that the Pakistan was going to surrender its sovereignty.
“In view of Salala check post attack, you are demanding unconditional apology from the United Sates for violating your sovereignty, but on other hand you are forcing to surrender your authority before a Swiss Judicial Magistrate,” Khan added.
President Supreme Court Bar Association (SCBA) Muhammad Yaseen Azad said: “The Swiss authorities will have to take up the case after deciding the issue of immunity, given to President Zardari under the country’s Constitution and Geneva Convention, even the decision of writing letter has been finalised by the Pakistan People’s Party (PPP).”
Azad said that the Attorney General of Pakistan would write according to the procedure laid down in the law of land and Constitution a letter for reopening of cases.
“If they (PPP) take final decision, the Attorney General will ask Swiss government that his authorities want to withdraw an old letter stressing to close the corruption cases against President Zardari. A new letter will be send in place of old one,” Azad added.
After the process of writing the letter, Azad said that the concerned judicial magistrate of Swiss government might reply the letter by raising questions of limitation of the cases against Zardari and immunity also available for him under the Geneva Convention.
“Now, the issue of letter has become a matter of ego for all parties and institutions involved in it,” he said apprehending that the situation would lead the circumstances towards confrontation among the national institutions.
“If the superior judiciary will disqualify Raja Pervez Ashraf for not writing the letter, than what is surety that the third Prime Minister will do the same,” President SCBA posed question.
Another Constitutional expert Khalid Ranjha endorsed the point of view of Yaseen Azad and said nothing could be done when Constitution and international laws protect Zardari.
“The writing of letter, is not the most important issue of the country,” Ranjha said.
Some of the legal observes urged the government to write letter to Swiss authorities in the light of apex court’s verdict by stating that there is no harm in it. They believed that the writing of letter would be worthless.
Senior law expert A.K Dogar declared the matter of writing of letter valueless by pointing out another important issues including loadshedding. However, he said that the government should implement the apex court’s orders in letter and spirit.