To better understand the order of the Supreme Court of Pakistan disqualifying Prime Minister Gilani, it might be useful to get a grip on the legal context in which this order was handed down. My apologies for making this largely a descriptive post but I think it might help readers better understand the complexities involved and avoid a narrow and superficial analysis like the one reflected in Justice Katju’s opinion piece in The Hindu.
Pakistan’s Involvement in the Swiss Case Against Benazir Bhutto and Asif Ali Zardari
The genesis of this issue can be traced back to 1997 when the Advocate General of the Nawaz Sharif government, Chaudhry Mohammad Farooq, wrote to investigating authorities in Switzerland, who were looking into bribery and money laundering charges against 2 Swiss corporations — Cotecna and SGS — and other individual beneficiaries, including Benazir Bhutto and Asif Ali Zardari. The Advocate General sought for the Government of Pakistan to be made a civil party in the case on the ground that it was the Government of Pakistan that should legitimately receive the money that was involved, in case the charges were proved. In August 2003, a Swiss court convicted Benazir Bhutto and Asif Ali Zardari ex parte (they refused to appear or answer questions put to them by letters rogatory) on money laundering charges and handed down a 6 month suspended sentence and an order to pay $12 million to the Government of Pakistan by way of restitution.
Musharraf’s National Reconciliation Order and Pakistan’s Withdrawal from the Swiss Proceedings
Benazir Bhutto and Asif Ali Zardari filed an appeal in Switzerland against the judgment of the Swiss court in August 2003 with Bhutto living in London and Dubai fearing arrest by Musharraf’s government if she returned and Zardari imprisoned in Pakistan. As a result of the political churning in Pakistan between 2003-2007, Musharraf promulgated the National Reconciliation Ordinance (NRO) in October 2007 which sought to close cases of corruption filed against certain political leaders and bureaucrats within a certain period. The case against Benazir Bhutto and Zardari in the Cotecna and SGS matter also fell within the scope of the Ordinance. Following the Ordinance and Benazir Bhutto’s assassination in December 2007, the then Advocate-General of Pakistan, Malik Muhammad Qayyum, sent a letter in March 2008 to the Canton of Geneva’s Attorney General withdrawing the Government of Pakistan as a civil party in the case against Zardari and others.
The Supreme Court’s Order in the NRO Case
In December 2009, a 17-judge bench of the Supreme Court of Pakistan, led by Chief Justice Iftikhar Mohammad Chaudhry, struck down the NRO and held that the Attorney General’s letter in March 2008 was unauthorized and unconstitutional. In this judgment it also ordered the Federal Government to write to the Swiss authorities and withdraw the March 2008 letter and thereby revive the Government of Pakistan’s position as a civil party in the Swiss proceeding. It is the refusal of the Government of Pakistan to send this letter that is at the heart of the current controversy. However, what has received very little attention is the fact that the Supreme Court of Pakistan issues numerous orders and summoned various bureaucrats and ministers since December 2009 in an attempt to the get the government to follow its order in the NRO case. The Federal Government, speaking through the Prime Minister, categorically stated that it will not send the letter to the Swiss authorities until the incumbent President was in office and this finally led to the contempt petition against the Prime Minister.
The Question of Immunity u/ Art. 248 of Pakistan’s 1973 Constitution
Does the order requiring the Federal Government to write to the Swiss authorities to revive Pakistan’s position as a civil party in the Swiss proceedings violate the immunity available to the President under Art. 248 of Pakistan’s 1973 Constitution? In April 2012, a 7-judge bench of the Supreme Court seized with the question of whether the Prime Minister was in contempt had a rather simple response. It was repeatedly argued in the contempt case that Prime Minister Gilani would not authorise the Attorney General to write to the Swiss authorities because it would violate the President’s immunity u/ Art. 248 and international law generally. The Supreme Court’s response was that the case against Zardari in Switzerland was initiated by the Swiss authorities and not the Government of Pakistan. The order of the court in the NRO case was only to revive Pakistan’s position as a civil party in the Swiss case so that it could receive the money that was legitimately owed to it, in case the charges of money-laundering and bribery were finally upheld. Questions of immunity available to the President under Art. 248 of Pakistan’s Constitution and international law generally, according to the Supreme Court, was a matter for the Swiss courts to rule upon and had no bearing upon the Government of Pakistan’s obligation to write to the Swiss authorities reinstating itself as a civil party.
The Disqualification Order Puts the Supreme Court in a Tricky Situation
Despite repeatedly trying to get the Government of Pakistan to follow its order in the NRO case, the government showed no sign of relenting and this undoubtedly put the Supreme Court of Pakistan in a very difficult situation. However, by going ahead and disqualifying the Prime Minister earlier this week on the basis of his conviction in the contempt case, the Supreme Court has pushed itself into a corner with depleted options. The order in the NRO judgment was directed at the ‘Federal Government’ and not at the Prime Minister personally. If the next Prime Minister also refuses to write that letter to the Swiss authorities, will the Supreme Court go ahead and find the Prime Minister to be in contempt again and subsequently disqualify the next Prime Minister as well? I am not sufficiently familiar with the political situation in Pakistan to comment on the likelihood of the next Prime Minister authorising the Attorney General to write to the Swiss authorities, but the Supreme Court of Pakistan did find itself in a very difficult situation before this week and I am not sure if the disqualification order has made its position any better in the intriguing theatre of politics in Pakistan.
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