Not only that, a senior member of the seven-member bench hearing Prime Minister Yusuf Raza Gilani’s contempt case raised this fundamental question in the courtroom on Thursday but a respected member (now retired) of the 17-member bench that handed down the NRO judgment, a former Chief Justice of Pakistan and some leading constitutional experts all agree that the mere writing of a letter to Swiss and other foreign authorities does not involve Article 248 in any manner.
This aspect of the case has damaged the government’s stance as the Supreme Court had asked for the withdrawal of the illegal letter issued by the former attorney general in different cases of corruption involving different accused — one of them President Asif Ali Zardari. The government’s refusal to write a letter to Swiss and other foreign authorities has not only benefited other accused (enjoying no immunity) but also washed away the cases themselves.
Apparently, for the same reason, Justice Sarmad Jalal Osmany asked Aitzaz Ahsan on Thursday during the hearing of the premier’s contempt case: “I am unable to understand what is the nexus between immunity under Article 248 and writing of the letter to a foreign country in accordance with the Supreme Court’s NRO judgment?”
A respected retired judge of the Supreme Court, who was a part of the 17-member bench, told The News here on Friday that there was absolutely no relevance between the letter and presidential immunity.
He explained that the Supreme Court had found Malik Qayyum’s letter as illegal and, therefore, ordered for its withdrawal. He added that the cases in the foreign countries, including Switzerland, do not have only one accused — President Asif Ali Zardari — but there are others too, so how can the question of presidential immunity be raised.
Former Chief Justice Saeeduzzaman Siddiqui, when contacted, also endorsed the same and that the question of president’s immunity would arise when any court, whether local or international, would issue a notice to Asif Ali Zardari as an accused.
He said that the government had jumped to the conclusion by mixing up the issue of withdrawal of an illegal letter with presidential immunity. The former chief justice said that in his opinion, there was absolutely no connection between the letter and presidential immunity. “How does the withdrawal of an illegal letter hit the presidential immunity?”
Former president Sindh High Court Bar Association (SHBA) and top leader of the lawyers’ movement Justice (retd) Rasheed A Rizvi while talking to The News also said that the issue of immunity does not arise in the present case of contempt of court that pertains to the government’s refusal to write a letter to foreign countries. “When a court proceeding will be initiated or summons will be issued to the president, only at that point they can claim immunity in Pakistan or outside under Article 248 or some international law or convention accordingly,” Rizvi said, adding, “Before that, the question of immunity doesn’t arise in any way.”
Rizvi said that till this point, the Supreme Court has only given the directions that as Malik Muhammad Qayyum was unauthorised to write letters to foreign countries for withdrawal of requests of civil party, so that letter should be withdrawn. “This simple issue of writing another letter to withdraw an earlier wrongly written letter has nothing to do with the issue of immunity,” Rizvi said, adding that with regard to cases in Switzerland, there the cases were against three persons; Benazir Bhutto (late), Asif Ali Zardari and a lawyer who was a middleman (Jens Schlegilmitch).
“Now because of writing of a wrong letter, the cases were closed against both President Zardari and the middleman.
“Now, if the letter is written in accordance with Supreme Court judgment and Qayyum’s illegal letter is withdrawn, the cases will be reopened where President Zardari could go to claim immunity but at least the case proceedings will restart and continue against that middleman who does not have any immunity,” Rizvi concluded.
According to NAB sources, there are quite a few co-accused in Swiss and other foreign cases but because of Malik Qayyum’s letter, all have gone scot-free without having been tried.
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