Thursday, November 8, 2012

Daily Times Editorial Nov 9, 2012

The Swiss letter, finally After almost three years of wrangling between the PPP government and the Supreme Court (SC), the by now infamous letter to the Swiss judicial authorities has finally been dispatched. Federal Law Minister Farooq Naek has confirmed that the letter was sent by the foreign office to the Swiss Attorney General (AG) through the Pakistan Ambassador in Switzerland. The text of the letter, which became a further bone of contention with the court and resulted in three previous drafts being rejected, follows faithfully the draft approved by the SC. The court had given the government 30 days to dispatch the letter. At the next hearing of the case on November 14, the government will either present the receipt showing the letter has been received by the Swiss authorities, or explain the status of the letter’s journey. This journey of course is nothing compared to the protracted saga full of twists and turns the issue acquired since the SC struck down the National Reconciliation Ordinance (NRO) promulgated by General Pervez Musharraf as part of a political deal with the PPP when he found himself politically cornered circa 2007. The SC’s 2009 judgement, in its paragraph 178, had required the government to withdraw the withdrawal of the request for judicial assistance from the Swiss authorities authored by then AG Justice (retd) Malik Abdul Qayyum. The letter sent now says the then AG’s withdrawal letter should be treated as withdrawn as though it had never been written. Theoretically, what this means is that the 8,000 plus beneficiaries of the NRO, who included bureaucrats and others and only a handful of politicians, could have their cases reopened, if they have not already been. Despite the wide scope of the list of beneficiaries of the NRO, the real conflict with the SC arose because President Asif Ali Zardari’s name was included in the list. Charges of graft against him emanate from the 1990s, when the late Benazir Bhutto was Prime Minister (PM). The PPP government under former PM Yousaf Raza Gilani took the position that the president enjoyed immunity while in office under the law and constitution of Pakistan (Article 248) and international law, and in any case reopening the issue would be tantamount to a trial of the grave of Benazir Bhutto. Arguments on this issue before the court during the protracted process of hearings failed to settle the issue conclusively. Gilani stuck to this stance and it cost him the premiership. Under his successor, Raja Pervez Ashraf, the PPP government relented as did the court, and the letter was finally mutually agreed and written to say in general terms that the president’s legal rights and protections under domestic and international law would not be prejudiced by the sending of the letter, a compromise found acceptable by the court finally. Is this the end of the matter? After almost three years of the country’s time, money, resources and attention being wasted on what in the end turns out to have been a futile exercise revolving around finding the appropriate language to satisfy both the judiciary and the government, this question acquires piquancy. The ball now is in the court of the Swiss judicial authorities. Earlier, some legal eagles argued that a closed case under Swiss law could not be reopened in the absence of fresh substantive evidence. Others have since joined the fray to say Swiss law in this regard has changed and the cases can in fact be reopened. How much of this is partisan politics and how much informed opinion is unclear. Should the former interpretation prove correct, that could indeed be the end of a matter unnecessarily stretched out. On the other hand, should the latter legal opinion be more up to date, and the Swiss authorities were to proceed to reopen the cases, including the one against President Zardari, it remains to be seen whether the trail, if ever there was indeed one, has turned so cold as to be a dead end. Unfortunately, Pakistan’s polarized polity yields rarely to good sense, balance, wisdom. The case in question is a good illustration of our penchant for flogging dead horses.

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