Avoiding a constitutional showdown

The Swiss cases against President Asif Ali Zardari have become a major bone of contention between the incumbent government and the Supreme Court (SC) of Pakistan. The apex court had directed the law secretary to move a summary on reopening the Swiss cases to the prime minister by September 24. The law ministry did comply but according to reports, it was suggested in the summary that no cases could be initiated against the president in the Swiss courts and that he has immunity from prosecution under Article 248 of the constitution. The Attorney General (AG) told the SC that Prime Minister Gilani had approved the summary but the contents will not be made public. Chief Justice (CJ) Iftikhar Chaudhry ordered the AG to present the summary in court. Justice Chaudhry further said that the prime minister should know the consequences of defying the SC’s verdict.

On May 25, federal Law Minister Babar Awan appeared before a five-member SC bench overseeing the implementation of the NRO judgement. He presented the government’s point of view vis-à-vis the Swiss courts and informed the bench that there have never been any cases against either the president or late Benazir Bhutto there. He told the lordships that only investigations were conducted in a Swiss court against the president. Mr Awan also told the apex court that there were “grey areas and legal intricacies” involved in approaching the Swiss authorities now. At that time it seemed the SC might averse to Mr Awan’s reasoning but recent orders by the apex court have shown that this is not the case and the lordships are going to stick to their original verdict. The legal intricacies that Mr Awan mentioned are worth looking into. The Swiss cases have been withdrawn from the courts but the Swiss have implied that if the government of Pakistan wants legal assistance, a request should be made formally and then it can be considered provided there are cogent reasons to justify the reopening of cases.

The PPP’s Central Executive Committee (CEC) met on September 23 where the president told them that though they should not be bogged down by the rumours of a ‘change’, they should still be prepared to meet any contingency. Reportedly, the CEC was against the reopening of the Swiss cases. Addressing the Senate, Prime Minister Gilani said that the beneficiaries of the National Reconciliation Ordinance (NRO) should resign from their positions voluntarily. Mr Gilani stressed the supremacy of parliament and said that since the constitution has given the president immunity against prosecution, only parliament has the right to amend the constitution and take this immunity away.

The government is not left with many choices at the moment. Either there will be a head-on collision between the government and the SC or the letter must be sent. If the PPP-led government does not want to risk a breakdown of the system, it should comply with the apex court’s orders since the SC is adamant that the government goes ahead come hell or high water. The ball will be in the Swiss authorities’ court once a letter from the government is sent to them. On another note, Justice Chaudhry’s statement regarding the prime minister could be read in some quarters as a veiled threat. It is not in the country’s interest that there emerges a confrontation between the state’s institutions – parliament and the SC in this case. In the interest of Pakistan’s stability, instead of adopting a confrontationist posture, all institutions should remain well within their constitutional parameters.

(my editorial in Daily Times)

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