Daily Times Editorial Feb 11, 2013

A refusal foretold As predicted in this space innumerable times since the issue of writing a letter to the Swiss authorities blew up, the latter have responded to the Pakistan government’s missive by saying categorically that the case against President Asif Ali Zardari cannot be reopened because he enjoys immunity while in office under Pakistani and international law, and that the case has in any case been closed under the statute of limitations under Swiss law since 15 years have elapsed since the case was instituted. It may be instructive to do a brief recap of the whole affair in order to understand the diversionary journey the country has been subjected to over many years. In 2007, when General Musharraf began to lose his grip on events unfolding in the country, he reached out to Benazir Bhutto’s PPP for a political bailout. The deal struck between the two sides after protracted negotiations resulted in the National Reconciliation Ordinance (NRO), which withdrew corruption, etc, cases against Benazir Bhutto, Asif Zardari and many others, cases the PPP always held were politically motivated. The Cotecna case involving Benazir Bhutto and Asif Zardari led to a presumption of guilt in the Swiss magistracy’s investigation, which was overturned on appeal in 2003. Since then, the issue lay relatively dormant, until in 2008, then Attorney General Justice (retd) Malik Mohammad Qayyum wrote to the Swiss authorities withdrawing the request for assistance in the case, i.e. closing it. In 2009, the Supreme Court (SC) struck down the NRO as discriminatory, and ordered the reopening of all closed cases benefiting from it. This led to a three plus years standoff between the PPP government and the SC on the latter’s insistence that the government write to the Swiss authorities to reopen the Cotecna case. The government dragged its feet, arguing that such a step would be tantamount to an insult to the country’s sitting head of state, as well as fruitless since the president enjoyed immunity under our constitution as well as international law. The reluctance and refusal of the government to write the letter seems to have provoked more fury than judicial sense from the SC, which insisted on the implementation of its judgement by writing the letter. Many legal luminaries and analysts were also of the view that the president enjoyed immunity, but the SC insisted immunity was not automatic (despite the fact it is in the constitution) and would have to be applied for. The government was reluctant, given the state of virtual confrontation between it and the SC, fearing the immunity clause may be struck down. This prolonged standoff cost the PPP government a prime minister, Yousaf Raza Gilani, convicted of contempt of court for refusing to write the letter and thereby losing office and being debarred from elected office for five years. His replacement, Raja Pervez Ashraf, after fresh government deliberations, agreed to write the letter. The result is now before us. The valid question to be asked is why the country was subjected to three plus years of time, resources, judiciary-executive confrontational tension and its destabilising effect on the democratic system when the outcome was staring everyone in the face. The only conclusion is that the superior judiciary failed to exercise its mind judiciously on the issue. If the country has lessons to learn from the whole affair, so, it must be said, has the judiciary. Some legal luminaries believe the Swiss response does not preclude the reopening of the case against President Zardari once he leaves office. They are of course entitled to their views and may even have legal precedent on their side, but Pakistan needs to lay the issue to rest for the moment and get back on track to more urgent and weightier questions, chief among them currently being to ensure the elections are held, on time, and in a free, fair and transparent manner. We need no more red herrings to distract us from this supreme national task.