Swiss Letter a Test of SC’s Motives

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.

Detailed Verdict Leaves More Questions Than Answers

Chief Justice Iftikhar ChaudhryThe Supreme Court’s detailed verdict, finally delivered almost two weeks after they gave a short opinion, is not likely to clear up any confusion about the legality of the contempt case against the Prime Minister or the Court’s desire to re-open money laundering cases in Swiss courts. If anything, the Court’s detailed verdict leaves more questions than it provides answers.

The Court readily admits that they were biased against the Prime Minister from the start. In Paragraph 27, the justices admit that they had already formed an opinion about the outcome of the case before arguments even began, but dismissed counsel’s argument that this deprived the Prime Minister of his right to a fair trial because they claim the opinion was “tentative”. The hearings were not to determine the Prime Minister’s guilt or innocence, but to give the Prime Minister an opportunity to change the justice’s pre-determined opinion. In other words, the Prime Minister was never given a trial at all. The court skipped straight to appeal.

Even this appeal, though, is questionable. According to Paragraph 47 of the detailed verdict, the prosecution concluded by submitting “that the evidence on record does not establish the charge of contempt” against the Prime Minister. This begs the question if the prosecution and the defence both submitted that the evidence does not establish the charge of contempt, how did the Justices come to the conclusion that it did? Did the Court decide that the prosecutor wasn’t prosecuting well enough, so they decided to act as both prosecutor and judge? How could this possibly be considered as a fair trial in accordance with Article 10A of the Constitution?

The most important question that remains unanswered, however, is an old one, but one that the detailed verdict makes ever more glaring: If the Supreme Court truly believes that the President was involved in money laundering and kickbacks that illegally deprived the state of official funds, why don’t they take suo motu action and open a case themselves? Why do they need the Swiss at all?

The Court, of course, refuses to answer this question just as they refuse to answer the question of whether Article 248 grants the President immunity during his term in office. They refuse to answer the question because they know the answer and it isn’t what they want to hear – Article 248 obviously grants the President immunity during his term in office, so they can’t open a case themselves without violating the Constitution.

In Paragraph 40 of the detailed verdict, the seven-member Bench “is in no position to examine the plea” that the Constitution provides the protection of immunity to the President. Why not? They do not explain. Perhaps it is because the obvious conclusion to such an examination would undermine their cause? It is notable that the Honourable Court refuses, once again, to acknowledge what is plainly written in the Constitution.

The Court then goes on in Paragraph 41 to claim that they cannot accept the Prime Minister’s plea to delay the writing of the letter until the President’s term of office has expired and he no longer enjoys Constitutional protection. According to the Court, “this Bench has no power to modify the judgments and delay implementation”.

And yet the same Supreme Court has no problem issuing a string of extensions to the memogate commission. Why does it seem that the Honourable Court can find the power to modify judgements and delay implementation when it suits them, but not when it is inconvenient?

Could it be that because Article 248 presents such an obvious obstacle to the Court’s desired ends, they have cleverly decided to have someone else do the work and ordered the Federal Government to request Swiss authorities to open cases against the President for them? This, too, raises serious questions about the Court’s order.

In Paragraph 5 of the detailed verdict, the Supreme Court writes that “the status of civil party and the claim lodged to the allegedly laundered moneys lying in foreign countries including Switzerland are declared never to have been withdrawn”. If the withdrawal never happened, why, then, does the government need to write to request that the case be re-instated? Shouldn’t the Ministry of Law be able to write asking to be added back as a civil party to the case? Of course not, because the cases were originally opened by and closed by the Swiss courts, and regardless of what the Supreme Court of Pakistan demands, the cases will remain closed until the Swiss themselves choose to re-open them.

This is not the only inconsistency in the Supreme Court’s behaviour. In Paragraph 43, the Honourable Justices write:

43. Since complete facts of the case in Switzerland are not before us, we are in no position to form a definite opinion about its status when the claim was withdrawn nor indeed are we competent to give our own findings on the case, even for the limited purpose of determining the question of immunity.

But later, in Paragraph 56, the Supreme Court states that it does not believe the case was closed by the Swiss authorities on merits.

We, therefore, entertain serious doubts regarding the claim that the case in Switzerland was closed on merits.

Here again, the Supreme Court’s decisions seem to be based not on a consistent application of law and reason, but on what it most convenient to the outcome that they seek – even if it means contradicting themselves in the same order.

This brings us to the next problem with the Supreme Court’s approach. In Paragraph 7 of the detailed verdict, the Supreme Court makes clear that it is instructing the Federal Government to write to Swiss authorities requesting to be made a civil party to a money laundering suit “keeping in view the relations in between the sovereign States and by following the procedure adopted earlier.”

The Supreme Court can find that the previous letter requesting withdrawal as a civil party to the case was in error, but writing a new letter to foreign authorities requesting that a case be opened against a Pakistani citizen is an enforcement action which falls under the purview of the federal government alone – not the judiciary. Otherwise, why don’t the justices simply write to the Swiss and re-open the cases themselves? Because they can’t, and they know it. They don’t have the constitutional authority to do so any more than they have the constitutional authority to open cases against the President themselves.

The Court argues that Article 190 requires authorities to act in aid of the Supreme Court, but basic common sense tells us that even this power only applies to orders that fall within the Supreme Court’s constitutional authority. If the Supreme Court can compel the Prime Minister to write a letter, can they also compel him to bring them chai-samosa? Can the Chief Justice order the Law Minister to wash his car? Will he be found in contempt if the windows are not clean enough?

Interestingly, the argument about whether the Court must be obeyed at all costs is addressed by the Honourable Justices in Paragraph 63, in which the Court poses an interesting hypothetical:

This argument, if accepted, would set a dangerous precedent and anyone would then successfully flout the orders of the Courts by pleading that according to his interpretation they are not in accord with the law.

But the inverse of this is also a dangerous precedent – a vindictive or biased Judge could successfully flout the clear and unambiguous language of the Constitution by issuing an order that was clearly unconstitutional and then demanding that its authority cannot be questioned. According to the Court, “interpretation of the law is the exclusive domain of the judiciary”. Likewise, external affairs with other countries “including the surrender of criminals and accused persons to Governments outside Pakistan” is the exclusive domain of Parliament according to the Federal Legislative List. The Court has no authority to request cases against Pakistani citizens be opened in foreign courts.

The Supreme Court spends page after page after page describing in detail the past actions of government officials that frustrated their purpose – having a letter delivered to the Swiss requesting that a case be opened against the President. But all of this is irrelevant. If the justices don’t have the authority to open foreign cases, neither do they have the authority to direct someone else to do so. The decision of whether to write to the Swiss or not rests not with the Supreme Court, no matter how much they may wish it were so.

A History of Judicial Tyranny

Shehryar Riaz Sheikh26 April 2012 was another tragic day in our democratic history; the unanimously elected Prime Minister of Pakistan who in his wisdom ordered the release of the deposed Lordships of the Superior Courts immediately upon his election was convicted of Contempt of Court. Notwithstanding the uniqueness of NRO judgment condemning over 8000 accused without a hearing and the inherent selectivity of only targeting the President and his aides in the process, the overwhelming part of the judgment was implemented by the Federation of Pakistan. It is pertinent to mention that the grand strategist (of the “strategic depth” fame)–the promulgator of the infamous Ordinance luxuriously resides safe and secure from the wrath of law. Former Prime Minister Mohammad Khan Junejo and his almost 9 March’07 like moment of defiance during the notorious Zia regime is a case in point as to how an instance of individual heroism could not break the dictatorial chains. In case of the present dispensation, it was Benazir Bhutto’s sheer political maneuvering in striving for a political settlement, her ultimate sacrifice coupled with the sagacity of the political leadership along and the democratic struggle unleashed by the lawyers movement which paved way for the return of democracy to Pakistan. The present democratic dispensation is the sequel to NRO. History is bound to narrate as to how if had not been achieved, there would have been no elections, no assemblies, no free media and no free judiciary. The national leadership too would still have been languishing in exile.

Theodore Roosevelt completed the notion “No man is above the law….” by penning an additional prerequisite for the essence of the rule of law much to the benefit of the victims of selective justice that “no man is below the law either”. It is common knowledge now as to how Pakistan Peoples Party has repeatedly been denied justice. In spite of the founding chairman of the party being eliminated in a judicial murder, the charismatic chairperson being hounded in Courts across the country for years in her quest for justice without a single charge ever being proved, the co-chairperson being incarcerated for an astoundingly long period and till date subject to the worst political victimization, PPP’s reference of esteem and deference for the Judiciary can be judged from a long history of repeatedly bowing before the supreme majesty of law at times of adversity and severe injustice where bias evidently seemed floating on the surface of the adjudicature. This at the very least and from even a pessimistic view implies utmost respect for the rule of law. The state of denial seems to have deeply ingrained in the collective psyche of PML-N. Claiming to be innocent on all accounts, as a memory refresher of their gory shenanigans, they need to be reminded of the ‘revolutionary’ guard of N leagues’ unruly mob attack on the Apex Court. The only other precedent of such disgraceful behavior was displayed on November 3’07 when the commando force of the dictator ransacked the highest Court of Law. The aforementioned instances are unprecedented in the sheer brutality and utter disregard for the independence of Judiciary fundamentally enshrined in the Constitution of Pakistan.

From a purely legal standpoint, the short order (which incorporates the operative part of the judgment) quite clearly appears to have dealt with matters beyond the scope of the indictment. This implies that the Prime Minister was condemned unheard. The most probable reasoning against this view is that the judgment read into Section 18 of the Contempt of Court Ordinance 2003 as per which few legal minds contend that conviction of contempt regardless of the type is akin to a conviction of contempt for having acted in a manner which brings the judiciary into ridicule. According to this reasoning, the elements of Section 18 are a prerequisite for securing a conviction in Contempt of Court; the Courts would only convict a proven contemnor if the elements of Contempt satisfy the effects mentioned in Section 18 (notably bringing the Court into ridicule). The issue with such reasoning is that treating Section 18 as if it enshrines the whole concept of Contempt makes one question the purpose for the distinction between the differing types of Contempt quite clearly manifested in the Ordinance. Carrying forward the same reasoning, the core issue remains as to how the Lordships were satisfied on surpassing the threshold rendering a conviction without even hearing the condemned party and how can the reasons leading to guilt not be expressly particularized in the charge sheet. Such a negation of a fundamental principle of natural justice results in the miscarriage of justice.

Historically, the honorable Supreme Court with its unelected Lordships has had a pivotal role in uprooting the nascent saplings of democracy and rule of law over and over again. It is hard to comprehend as to how despite the Court appointed prosecutor in the case assertively pleading of having not an iota of evidence against the accused in the Contempt of Court proceedings, the honorable Supreme Court seemed to have enough ‘evidence’ to convict a democratically elected Prime Minister for merely upholding a Constitutional provision and following the advice of the Law ministry of the federation of Pakistan. The Supreme Court quite remarkably seemed to have enough ‘evidence’ to convict the nation’s beloved SZAB in a globally recognized trumped up murder charge. The Supreme Court seemed to have enough ‘evidence‘ to justify the ruthless Zia regime. The Supreme Court peculiarly seemed to have enough ‘evidence’ to justify another commando general’s misrule and striking abrogation of the Constitution. The Supreme Court also seemed to have enough ‘evidence’ to revoke the order of dissolution of the Federal government led by Mian Nawaz Sharif.

The strong critics of the flawed criminal justice system point out to the dismal prosecution structure. That might be true but the fact of the matter is that there are glaring discrepancies in judicial reasoning and discretion in cases associated with Pakistan Peoples Party. At the heart of this debate revolves a peculiar Pakistani styled jurisprudence via the “doctrine of selective justice” replacing the rather dreadful Roman “doctrine of State necessity” in trampling the Constitution. The Supreme Court astonishingly never seems to have enough evidence’ to convict a single proudly confessing mass murderer brainwashed by a perverted view of the faith. The Supreme Court oddly never seems to have enough ‘evidence’ to convict sectarian killers thriving under a flawed criminal justice system, rapists, billionaire defaulters or as per the alarming trend anyone not associated with the Pakistan Peoples Party. The Supreme Court quite extraordinarily never seemed to have enough ‘evidence’ to convict a commando dictator who not only quite blatantly put the Court into ridicule but also arrested the honourable Lordships with their families. The Supreme Court never seemed to have enough ‘evidence’ to revoke the twice ordered unlawful dissolutions of the Federal governments of Benazir Bhutto. The Supreme Court surprisingly never seemed to enough evidence’ to convict the Sharif brothers over the confessional deals facilitating the whitening of their alleged black billions nor did the apex Court seemingly have enough evidence’ to convict the Sharifs over the utterly disgraceful attack on the highest court of the country. The Supreme Court apparently would never seem to have enough ‘evidence’ to convict any arrogant general or Judge for repeatedly and brutally marring the Constitution through their myopic adventurism. The Supreme Court would always most likely fail to have enough évidence’ to convict even a single person responsible for the Fall of Dhaka, the May 12 killings, the murder of Nawaz Bugti and the list goes on and on. Most tragically despite the struggle and renaissance of the much touted independent judiciary, the streams of justice remain muddled up and impure as ever.

It is most unfortunate that a core pillar of the State is being held hostage by illusions of popularity and misguided notions of representing the will of the masses through the manipulated antics of a sensationalist hyperactive media. Despite the NRO and the palace intrigues, the Pakistan Peoples Party prevailed in the hearts and minds, across the breadth and depth of the electoral demographics of the country. Whilst the chattering class appeared confused on as to who actually represents the will of the people—the unelected judiciary or the hyperactive anchors on the mainstream media, the masses spoke and resoundingly gave their verdict again in the favor of Pakistan Peoples Party. The PPP candidate won the by-election in a constituency widely recognized to be a PML-N stronghold for over last twenty years. As the results were announced, the words of the legendary Faiz majestically resonated in the background to conclude the day:

Na Unki Rasm Nae Hai, Na Apni Reet Nae. Yunhi Hamesha Khilaye Hain Humne Aag Mein Phool. Na Unki Haar Nae Hai, Na Apni Jeet Nae

The writer was recently called to the bar at Lincoln’s Inn and is a freelance columnist. Twitter handle:@ShehryarRS

A Dangerous Precedent

PM Gilani

The Supreme Court’s decision to formally indict the Prime Minister on charges of contempt on Monday revolves around the question of presidential immunity outlined in Article 248 of the constitution, and yet this important fact seems to have been all but ignored in the discussion of charges against the PM as the court and the media prefer to discussion whether or not the PM is disobeying the court’s order. Before a decision can be made on the wisdom of not writing the court’s desired letter, though, a thorough review of the Supreme Court’s order to write the letter must be undertaken.

When the government responded to the court’s order by explaining that Article 248 prevented them from pursuing cases against the president while he is in office, the first argument that the president’s opponents made was that he only enjoyed “qualified immunity” for actions taken in the course of his official duties. Article 248 seems pretty clear about granting the president absolute immunity, though – “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.” Opponents then changed their argument to say that the constitution gives him immunity in Pakistan, but not in foreign courts. Of course, this is wrong, too. Article 248 says very plainly “in any court”, not “any Pakistani court”. This then moved the Chief Justice to make the bizarre claim that the president can’t claim immunity based on what the constitution says, that he has to come and beg His Lordship to grant it. Zardari haters then began claiming that Article 248 required “interpretation”.

Justice Ali Nawaz Chowhan, an International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court, a visiting Professor and Co-Chairman of Unesco Appeal (Judicial) Board has explained that such a suggestion is prima facie silly – the language of the constitution is plain and does not require interpretation.

Despite the plain language of the constitution, the Chief Justice has ordered the Prime Minister to write a letter to the Swiss authorities requesting that corruption cases be opened against the president – an act that is clearly against the constitution. This puts the PM in a ‘damned if you do, damned if you don’t’ situation.

Rather than disobey the constitution, the PM is following the recommendation of his legal advisors and not writing the letter. For disobeying the Court’s order, he has been charged with contempt. The Prime Minister said that if he is convicted, he will follow the law and step down. Reportedly the government has already prepared for this scenario.

Not so fast.

Article 248 has been widely discussed as the reason why the PM can’t write the letter to the Swiss authorities, but what hasn’t been discussed is the issue of “qualified immunity” for the Prime Minister himself.

Section 1 of Article 248 says:

The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions

It names the Prime Minister specifically, and grants him qualified immunity for acts and performance of his office. This is not the same as the complete immunity granted to the president in Sections 2, 3, and 4 – it is the normal immunity granted to government officials that allows them to do their jobs without having the second-guess every act they take. What does that have to do with this case?

If the Supreme Court decides to punish the Prime Minister for not carrying out an order that the law ministry advised was unconstitutional, they will be in violation of Section 1 of Article 248. More worrisome, the court will be setting a dangerous precedent – no longer will government officials be able to rely on the plain language of the law nor the advice of their legal counsel. Every decision taken will have to first be cleared by the Supreme Court, otherwise the officials will never know if any action will result in them being hauled to dock and packed off to jail. That’s not what is supposed to happen in a court of law, that’s what happens in a royal court.

Judiciary frustrated by rule of law

An article in The News caught my attention yesterday when I read that the head of the Judicial Commission probing the memogate scandal is frustrated with inaction on the part of the government. According to the article,

Justice Qazi Faiz Esa on Thursday expressed anger at the Foreign Office’s inability to pursue the matter of the record of Blackberry messages between Husain Haqqani and Mansoor Ijaz with the Canadian High Commission in Pakistan.

This struck me as odd for a couple of reasons. First of all, the Foreign Office actually did pursue the matter of the record of Blackberry messages between Husain Haqqani and Mansoor Ijaz with the Canadian High Commission in Pakistan. The Canadian High Commission, being familiar with Canadian privacy law, told the FO that there was nothing they could do.

Justice Faiz Esa thinks the FO is “hampering the inquiry” because they haven’t created an international incident over the issue. The commission went on to complain that the Blackberry company, being a Canadian company, is following Canadian law. According to the judicial commission, “The Blackberry company is operating in Pakistan and they also have some obligations here for smooth functioning”. It is not hard to read such a statement as a threat – either provide us with the data or we will block your access to operate in Pakistan.

But even if the Canadian High Commission decided to become rogue and force a company to violate the law, what would be the point? Even Mansoor Ijaz himself says that Blackberry doesn’t have anything new data.

The reality is that what we found out from BlackBerry was not that; literally the data didn’t exist that we thought existed. Meaning, the chat, the actual lines of the chat exchanges is not stored by BlackBerry on their servers. What they store to some extent is, like a telephone log, here is the PIN number that communicated with another PIN number and here is the date and time which they did that.

The most anyone could prove is that Husain Haqqani had BBM chats with Mansoor Ijaz – something he has never denied. But none of the chat transcripts that Mansoor Ijaz has submitted say anything about a memo. The only way to read those chats as suggesting Haqqani had anything to do with Mansoor Ijaz’s memo is if someone has already told you how to interpret them before hand.

In many ways, the memogate case is similar to another case that is causing frustration to Our Lords on the bench. The Supreme Court continues to distract the government from real issues like poverty,

In the Swiss case, the Swiss have also said that they cannot reopen the case even if asked because the law says that the president benefits from immunity while in office.

A Swiss prosecutor said Wednesday that it would be impossible to reopen a money laundering case in Switzerland against Pakistani President Asif Ali Zardari since he benefits from immunity as a head of state.

Nevermind what the constitution or the Swiss themselves clearly say, the Supreme Court has threatened the Prime Minister with jail if he does not write a letter requesting the Swiss to open cases against the president.

And even if everyone decided to ignore the law, what would be the point? The Swiss prosecutor said four years ago when the case was closed that there was not enough evidence to bring Zardari to trial.

On August 26, 2008, Swiss judicial authorities closed the money-laundering case against Zardari and released $60 million frozen in Swiss accounts over the past decade.

Daniel Zappelli, Geneva’s chief prosecutor, said he had no evidence to bring Zardari to trial.

Foreign respect for the notion of ‘rule of law’ seems to have thoroughly confused and frustrated Our Lords. Rather than taking up any of the other countless cases that affect the lives of ordinary Pakistanis, the judiciary continues to waste the national treasury on what increasingly look like witch hunts. Perhaps the judges believe that these cases are giving them more respect and power. But what would really give the court the respect of the people would be to address the issues that affect everyday Pakistanis and leave political vendettas to the politicians.