Justice (retd) Nasira Iqbal and Barrister Shahida Jamil were unambiguous in their interpretation of the presidential immunity being quoted out of context by the government in defiance of the court orders, in the context of the so-called National Reconciliation Ordinance (NRO). Both said that the letter sought by the court to be written to the Swiss authorities was unavoidable, and that the President enjoyed immunity against criminal acts, whether past or present, as long as he was in office under Article 248(2) of the Constitution. However, immunity was not automatically available, unless and until it is claimed.
Barrister Shahida Jamil hammered a point that was being missed by most, and reiterated subsequently by Justice (retd) Khalilur Rehman Ramday: That the President did not enjoy immunity against civil proceedings, and writing to the Swiss authorities to disregard an unauthorised letter written by the former Attorney General, Malik Abdul Qayyum, was an administrative action that fell under Article 248(4).
Apart from the 17-member apex court bench - which struck down the so-called NRO prompting the reopening of some 8,000 plus cases against the beneficiaries of history’s unparalleled internationally brokered deal that installed a pliable government of alien choice - there is a long list of eminent jurists, lawyers, analysts and opinion makers across Pakistan, who have not only rubbished the unsavoury deal, but also questioned the cover of presidential immunity under Article 248 of the Constitution against the reopening of the cases covered by the infamous ordinance.
It ought to be remembered that everyone else apart from the PPP, including its allies, particularly the MQM, in a surprise move, did not support a possible endorsement of the NRO by Parliament before it was overturned by the Supreme Court. The former Chief Justice of Pakistan, Justice (retd) Saeeduz Zaman Siddiqui, Justice (retd) Rasheed A. Rizvi and Justice (retd) Khalilur Rehman Ramday, who also dealt with General (retd) Pervez Musharraf’s plea for immunity at the head of a 13-member bench and a host of other lawmakers and counsels, saw no relevance to the immunity, which, even if available, did not stand in the way of withdrawing the illegal letter written by the then Attorney General to Swiss courts asking them to quash proceedings on the case instituted by the Pakistan government against money laundering and stashing of illegal wealth in Swiss Banks by Pakistani nationals.
With the NRO held null and void and no longer in effect, while ordering the reopening of cases, the apex court had asked the government to write to the Swiss authorities to withdraw Malik Qayyum’s letter, so that the case stood as it was prior to the NRO. The government has dragged its feet for more than two years defying compliance. But for argument’s sake, even if the plea taken by the Prime Minister Gilani in the court the other day, that the letter was not written because it involved the President who enjoyed immunity under the relevant law, why it was not preferred before the court in deference to its decision for so long? Against this backdrop, the court having exercised utmost restraint was forced to serve a contempt notice to the Prime Minister, whose ultimate appearance and “submission to the majesty of law” as described by his counsel, already proves its point.
One trusts that the reshuffled government legal team presenting a mature and sombre look will seek a resolution, rather than force the phenomenally restrained judiciary to take the unpalatable decision. The law of the land is written down in great detail in the statute books and yet the complainants and defendants in all cases without exception are required to seek relevant relief by quoting the law or contest otherwise. It is the judiciary, which then has the prerogative to adjudicate, interpret and decide. No one can claim that since the law clearly provides relief, it is automatically available and applicable to them.
In the present standoff, in which government defiance has been grossly miscalculated under the advice from the President’s loyalists, who may turn out to be his worst enemies, Mr Asif Zardari may have bought some time, but would have sensed that he cannot avoid the inevitable. If, indeed, as often professed by his team (perhaps, never by him personally that he was innocent) that in spite of suffering a jail term for eight or nine years nothing could be proved against him, he ought to have volunteered to face the law, despite his immunity. That surely would have resurrected his image! But if he had much to hide and returned to politics from the oblivion to hijack his wife’s political inheritance after her demise, one can make sense in his option to seek cover by vying for the presidential slot that would provide him immunity as long as he was in the saddle.
I do not endorse those expressing surprise over Aitzaz Ahsan appearing as the Prime Minister’s counsel, and many ridiculing him for what they call a volte-face in deposing to the court contrary to his position taken outside it on the writing of the letter. Mr Ahsan’s contention that he would attempt to satisfy the court on the applicability of immunity - since it had been forced upon him by it although the specific proceedings for contempt did not require bringing in the subject - is not correct because it was the Prime Minister, who landed him in this situation by taking the cover of immunity; the relevance of which was promptly questioned by Justice Sarmad Jalal Usmani during the proceedings.
More importantly, the letter ought to have been written irrespective of the presidential immunity because in the case under question there are other parties, who are enjoying its cover to which they are not entitled to any way. But more discerning analysts maintain that the defiance may not be all that miscalculated, as unless the letter is written by the third week of February, reopening of the case would become time barred. It remains to be seen if the rule of law or brinksmanship finally prevails.
The writer is a freelance columnist.
Email: zaheerbhatti1@gmail.com