Daily Times Editorial Oct 7, 2012

One paragraph away The long running saga of the NRO implementation case is tantalisingly close to a resolution, and yet still frustratingly far. Federal Law Minister Farooq Naeq, appearing on behalf of the government on October 5, submitted a draft of the letter to be written to the Swiss judicial authorities in compliance with the orders of the Supreme Court (SC) at the last hearing. The court reportedly accepted the first two paragraphs of the draft letter, but expressed reservations on the third paragraph as not being in line with paragraph 178 of the NRO judgement. After discussions in chamber with Farooq Naeq and the government’s counsel in the case, Waseem Sajjad, to which the bench reluctantly agreed on the plea that sensitivities were involved that would not be appropriate to discuss in open court, the SC bench allowed Mr Naeq to hold consultations with Prime Minister Raja Pervez Ashraf regarding the court’s reservations. Justice Asif Saeed Khosa, heading the bench, remarked that the government and the court were within “inches” of agreement, and the court would not like to see the efforts so far wasted. The court then allowed Mr Naeq five days (till October 10) to consult with the prime minister again. However, both in court and later while talking to the media, Farooq Naek remained non-committal regarding what if any ‘improvements’ the government may be inclined to make in order to satisfy the court fully. He did say in his submissions before the court that the government (and the judiciary) wanted the system to continue, and the government would remain flexible in seeking a resolution of the long running conundrum. On Naeq’s request, the draft letter has not been made public. One is in the dark therefore what exactly it says, in what wording. However, media reports say the portions acceptable to the court seem to focus on the withdrawal of former Attorney General Justice (retd) Malik Abdul Qayyum’s letter of the Pakistan government’s withdrawal from the case and taking back its claim to the alleged secret funds secreted away in Swiss bank accounts. Most commentators are speculating that the sticking point is the immunity issue. It would seem reasonable to assume that the government is insisting that the letter contain a clear exposition by the government of the immunity from prosecution in Pakistan and internationally under Article 248 of our constitution and international law respectively, enjoyed by the president so long as he holds office. The court’s attitude on this question has fluctuated over time and successive hearings between accepting the argument of immunity to holding that such immunity must be applied for to the court. This the government, given the state of relations between it and the SC, has been reluctant to venture into, perhaps fearing an adverse interpretation by the court of the provisions of Article 248. Now it appears the court has expressed reservations over the reported inclusion of such an argument in the draft letter. It is not clear at this point in time what the response of the government is likely to be. If it insists on its version of the draft, the bench has said it would be compelled to restart contempt of court proceedings against the prime minister for not implementing the NRO judgement. That would be a replay of the Yousaf Raza Gilani episode, whose unseating by the SC left a lot of disquiet in its wake. The government seemed after that bruising (to one side) encounter with the SC to have opted to continue with a non-confrontational and cooperative approach in the hope that the SC would also cut it some slack and agree on a mutually acceptable draft. That tantalising possibility is still some distance away it seems. The amount of time, energy and attention the issue has consumed over the last few years, arguably making it even more difficult for the government to function normally and tackle the enormous challenges the country faces, certainly has not helped. The threat of destabilisation of the democratic system has loomed more than once during these hearings. The best solution of course would be, as Justice Khosa put it, an agreement between the government and the court on the content and wording of the letter that leads to a closure of this debilitating ‘confrontation’ between the executive and the judiciary. That, however, still seems more hope than reality at this point.