Daily Times editorial March 10, 2012

Writing the letter

A seven member larger bench of the Supreme Court (SC) hearing the contempt of court case against Prime Minister (PM) Yousaf Raza Gilani has rejected the defence plea that the PM never intended any contempt and had only refrained from writing the letter to the Swiss authorities to reopen money laundering corruption cases because of the advice he had received from the Law Ministry. The ‘advice’ plea having been rejected, the SC put it as bluntly as possible: write the letter irrespective of any advice received. The bench insisted on this as necessary in order to implement the NRO judgement of the court, especially paragraph 178. This paragraph states that the withdrawal of the requests for legal assistance from the Swiss authorities authored by then Attorney General Justice (retd) Malik Muhammad Qayyum are non est in law since the NRO per se was struck down in the judgment. That implies that the requests stand restored and the government must do all necessary to seek revival of the requests. Further, the court clarified that although it was asking the PM to write the letter, the contempt proceedings would not be affected whether the letter is written or not. That means irrespective of what the PM decides to do, he can still suffer punishment for contempt of court.
This bind does not on the face of it offer the PM any incentive to follow the court’s directive. It smacks of a case of damned if you do, damned if you don’t. Now the ball is in the PM’s court, who has been asked to file a written statement in his defence by March 19 or appear in person on March 21. If ANP’s Federal Railways Minister Haji Ghulam Muhammad Bilour’s statement is anything to go by, it looks as if the PPP has no intention of writing the letter against its co-chairperson and sitting president, who the PPP and its advisers are convinced enjoys immunity under Article 248 of the constitution. Article 248, inter alia, states in its Clause (2): “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.” This is the elephant in the room, which the SC has invited the defendant to invoke and let the court decide the issue of presidential immunity. This course the defence is reluctant to adopt for fear if the court strikes down presidential immunity, it may well open the floodgates to more complications. It must also be recognised of course that the Swiss judicial authorities, irrespective of the withdrawal of the withdrawal request, seem not the least bit interested in reopening the cases since they argue these are a closed and past transaction, cannot be reopened without substantive new evidence (none was reportedly found during the magisterial investigation earlier), and are in any case impossible to resurrect given that a sitting president enjoys immunity under Pakistani, Swiss and international law. However, none of this has cut any ice with the SC.
Now going forward there seem to be only two courses open to the PM. Either he can write the letter and let the chips fall as they may, perhaps relying on the Swiss judicial authorities’ reluctance and even hoping that the statute of limitations under Swiss law could put paid to the whole enterprise anyway. Or the PM could put political loyalty above his own risks and continue to defy the SC, refusing to write the letter. In that case, the SC could well be constrained to convict the PM for contempt, sentence him to a greater or lesser jail term, and render the continuance of the PM in office an impossibility. Of course there is still a lengthy process involved in removing an incumbent PM convicted of contempt of court. The Speaker of the National Assembly has to write to the Election Commission to disqualify the PM from being eligible to be a member of parliament, which automatically renders him unfit for the office of chief executive. The Election Commission then has to disqualify the prime minister and denotify his status as a member of parliament. All this still seems a long and winding way to go.