The Swiss question —Meher Bokhari

What the government needs to do is ask the SC if the letter it has been ordered to write to the Swiss government will in fact be in line with the constitution

It is amazing how convincing and confident stalwarts of the PPP sound when questioned about their government’s commitment to fully implementing the December 16, 2009 detailed judgement of the apex court. One cannot help but wonder whether they feel as convinced as they sound. The federal government’s updated review petition includes many objections to the historic judgement. The government views as unfair the formation of the 17-member full bench and the presence of former Attorney General Chaudhry Farooq’s brother Justice Khalil-ur-Rehman Ramday on this bench. The full bench leaves no unbiased judge to hear a review petition and the fact that Chaudhry Farooq initiated the Swiss cases in 1997 leaves a question mark on Justice Ramday’s impartiality, according to the government.

The updated review petition equates reopening of the Swiss cases to putting the grave of late Benazir Bhutto on trial and, finally, my favourite, compares the understanding between a dictator and a political party to forgive and forget each others’ corruption and crimes (National Reconciliation Ordinance) to the accord between believers and non-believers of Medina drafted shortly after the Hijra (622), which was meant to promote tolerance, peace and unity. When questioned about the absurdity of this analogy, a diehard supporter of President Zardari literally sprang from his chair demanding the answer to a question of his own: is it enough for the qazis to write an apology for a mistake they committed and continue their work? He was obviously pointing to the near-confession made in the detailed judgement about the courts legalising and crediting military takeovers in the past as “regrettable”.

However, some reservations on behalf of the government are not without reason. For instance, back in the day, Justice Ramday as judge of the Lahore High Court did in fact refuse to hear the case against late Benazir Bhutto and her husband Asif Ali Zardari in the SGS Cotecna reference on the grounds that his brother Chaudhry Farooq had prepared it in the capacity of Attorney General of Pakistan. However, this issue should have been raised when the NRO case was being heard.

The government is also arguing that in its detailed judgement the Supreme Court (SC) went over and beyond what was asked of it. Certain ambiguities do make one wonder. For example, the removal of National Accountability Bureau (NAB) prosecutor general, Danishwar Malik — in line with the SC’s directives contained in the verdict on the NRO — seems to contradict the existing NAB laws. Under the NAB Ordinance in effect, the prosecutor general has legal as well as constitutional protection according to Articles 6 and 8.

According to sources, the registrar’s office at the SC is refusing to allow the right of appeal to a government, which failed to defend itself to begin with. One must also realise that the scope of review petitions is very limited and narrow. What the government needs to do is ask the SC if the letter it has been ordered to write to the Swiss government will in fact be in line with the constitution.

Instead, in its updated review petition, the government is claiming that the SC, while giving its detailed judgement, failed to take into consideration the order of the public prosecutor of the Republic and Canton of Geneva dated August 25, 2008. Apparently, this detailed order was independent of former Attorney General Malik Qayyum’s letter, dated May 25, 2008, revoking the request for mutual legal assistance and relinquishing the state’s claim to the allegedly laundered $ 60 million. After examining the merit of the case and reviewing and analysing the testimonies on file, the prosecutor general had decided to close the proceedings. Quoting lack of conclusive evidence and referring to Article 192 of the Swiss penal code, the Swiss had informed the parties that they could file an appeal against the order within ten days of receipt of the present decision. Needless to say, no appeal was filed since the Musharraf government was in negotiations with the PPP to make way for its exiled leadership to come back.

The present government has used this order as its last defence in refusing to write to the Swiss government, contending that the apex court has erred in para 178 of its detailed judgement, whereby it is offending the Constitution of Pakistan by ordering the federal government to take action on this account.

However, the historic judgement demands only that the Swiss government be “conveyed” by the federal government that Pakistan has not abandoned its claim or abjured from its request for mutual legal assistance or renounced its status as civil party; that the letter sent to them on May 25, 2008 was “unauthorised, unconstitutional and illegal”. It is another story altogether what a mockery this ‘fact’ will make of Pakistan in the international community!

The fact of the matter is, unless the government requests an interpretation of Article 248 (2) from the SC, which does not allow it to ‘institute’ or ‘continue’ a case against a sitting president, someone will be held responsible by the SC for the lack of action on its orders.

Who will this be and what options does the SC have when its orders are apparently being so blatantly ignored and challenged? Read: Article 187 gives the SC “power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it”. Once the court takes on itself to do ‘complete justice’ it can give orders under Article 190 to “all executive and judicial authorities throughout Pakistan” to act in aid of it. The3 Foreign Office being one of the organs of the state can thus be ordered by the SC to send a Letter Rogatory or Letter of Request to the Swiss Foreign Office to help in the revival of the matter which had been erroneously/illegally withdrawn. Furthermore, according to the SC rules made in 1980, the apex court has the power to issue a commission to do the needful and report to the court.

As we remain entangled in the interpretation of our constitution, revival of the Swiss cases seems to be even more complex, as legal hawks of the government insist on interpreting the Swiss constitution as well. The government will benefit if it asks the right questions. Buying time, interpreting the constitution in one’s own interest, fiercely defending itself — all these acts might be understandable or justifiable to an extent given the circumstances. Beyond that, the government would be pushing the all-powerful judiciary beyond its threshold.

The writer is a journalist producing and anchoring a daily live current affairs show News Beat