On Tuesday, Federal Law Minister Farooq H. Naek presented a draft of the Swiss letter in the Supreme Court. With this, the government has passed the test put to it by the Supreme Court and disproven claims that the government is in defiance of the judiciary. The next test, then, is put to the Supreme Court to determine whether they are, as they have repeatedly claimed, merely following the rule of law, or if they are carrying out an orchestrated attack against the democratically elected president.
It should be recalled that Justice Asif Saeed Khan Khosa laid out four clear steps for the PM to take to demonstrate a good faith effort to comply with the Supreme Court’s directive:
Justice Asif Saeed Khan Khosa, while appreciating the stance of the prime minister, had told him that they would have to adopt four steps onwards for implementation of its directive. Firstly, the authorisation which should be produced in writing; secondly, draft of the letter to meet the directives contained in para 178 and upto the satisfaction of the court; thirdly, dispatch to and receipt by the concerned Swiss and other authorities; and fourthly, confirmation of such communication. Justice Khosa assured the PM that the bench would address Federation’s concerns and would not go beyond what they had written in para 178.
It appears that the government is prepared to take each of these four steps. Though the draft has not been made public, it is assumed that the letter requests the Swiss authorities to understand that the letter previously written by former AG Malik Qayyum is null and void. It is also believed that the government’s draft includes a notification of the president’s immunity under Article 248 of the Constitution. This has also been recognised by Justice Khosa, who recently stated that the Supreme Court accepts that the president enjoys immunity:
“We don’t deny about the immunity and we are ready to give any help by even stating in our order that Zardari is the president and has the immunity. God willing nothing will happen and democracy will not be derailed,” Justice Khosa said, adding that the world would watch that both the institutions would be vindicated.
So even if the letter includes a recognition of the president’s immunity under the constitution, the Supreme Court itself has previously directed that this would satisfy the Court’s order. To change their direction now and not accept the government’s draft would suggest that fears of judicial activism turning into political activism had come true, and what was being carried out was never about ‘rule of law’ but a political agenda.
On the other hand, the Supreme Court now has in its power the ability to clear the air between the judiciary and the executive and realise Justice Khosa’s hope that “both the institutions would be vindicated”. Let us hope that this episode finally comes to a quiet close so that both institutions can move on to addressing the grave issues facing the nation instead of obsessing over the past.