Daily Times Editorial March 21, 2012

Prime Minister’s ‘No’

In response to the Supreme Court’s (SC’s) order of March 8, 2012, Prime Minister (PM) Yousaf Raza Gilani has in his written reply refused point blank to write the letter desired by the SC to the Swiss authorities to reopen the alleged corruption and money laundering cases against President Asif Ali Zardari. The grounds of the PM’s refusal make interesting reading. The arguments and facts marshalled by the PM in his defence indicate in conclusion and between the lines that he has expressed no confidence in the bench hearing the contempt of court case. The basic reasoning presented in the PM’s reply pertaining to the bench is that since these judges have initiated the prosecution by issuing a contempt notice to him, in fairness they should not hear the case since this would be tantamount to being a judge in their own case, a principle of law that needs to be adhered to. The PM referred to Justice Tassaduq Hussain Jillani having recused himself from the case because of close personal relations with the PM to indirectly bolster his argument regarding the appropriateness of the bench becoming both prosecutor and judge in his case.
The thrust of the PM’s defence against the contempt charge is that he neither intended, nor committed any contempt or wilfully refused to obey the directions of the court. He merely followed the Rules of Business and was guided in his decision by the advice and summaries received from the Law Ministry and concerned officials. This was corroborated in the testimony of Ms Nargis Sethi before the court. Further, the PM argued that of the six options outlined by the court itself, it chose the most coercive (first) option. It would have been better in his view to have opted for the sixth, i.e. leaving the fate of Yousaf Raza Gilani in the court of the people. If, however, the court insisted that the letter be written regardless of all considerations, the PM suggested that the matter be sent to parliament to take a decision based on the collective wisdom of the elected representatives of the people. Mr Gilani defended stoutly the immunity enjoyed by a sitting head of state so long as he held office. He was open to the suggestion that the letter to the Swiss authorities desired by the court could be written after Mr Zardari left office. This would avoid throwing the president of a sovereign country before a foreign magistrate, a development that would gravely injure the self-respect of the country. The orders of the bench of January 10, 2012 and March 8, 2012, in the PM’s view, revealed that the judges had already made up their mind on the very matter to be heard and defended by the accused. The March 8 order was issued ex-parte, when even his counsel was not present in the court. This smacked of pre-emption, and of justice not being seen to be done when his counsel had not yet had the opportunity to explicate his arguments. In other words, the PM felt he had been condemned unheard. Gilani also raised an eyebrow at the anomaly that the Attorney General, who till yesterday was representing the federal government before the SC, should have been appointed the prosecutor in the contempt case. This led to the strange situation where in the NRO case he was still the federation’s counsel, while in the contempt case he was the prosecutor.
The underlying premise of the prime minister’s arguments (which are too lengthy to be done justice to in this space) seems to reflect his view that perhaps in its frustration at the delays in implementing the SC’s order in the NRO case, and in its zeal to assert the authority of the apex court, the bench had been peremptory and unjust. Of course it is for the honourable bench to take cognizance of the prime minister’s contentions and apply its mind to the defence and the anomalies he has pointed out. But the robust defence of his position indicates that the PM will not comply with the direction to write the letter based on his and the government’s understanding of the provisions of the constitution, particularly Article 248 that clearly states that the president has immunity from prosecution so long as he holds office. We must await the court’s view now, but no one can deny the high drama lurking in the wings of what some have continued to dub a crippling crisis or confrontation between the executive and the judiciary of unprecedented proportions.