PM to be indicted if immunity not proved: SC

ISLAMABAD: Prime Minister Syed Yusaf Raza Gilani, who is facing contempt of court proceedings before the Supreme Court for not implementing the court’s verdict on the controversial National Reconciliation Ordinance (NRO), is now totally at the mercy of his counsel Chaudhry Aitzaz Ahsan.

Supreme Court Judge Justice Nasirul Mulk observed on Wednesday that the prime minister would be charged for contempt of court if his counsel failed to satisfy the court that the president had immunity (from criminal prosecution) under Article 248 of the Constitution.

His remarks came during the hearing of a contempt case against the premier by a seven-member larger bench of the apex court headed by him.

The Supreme Court had issued the premier a show-cause notice to explain as to why contempt proceedings should not be initiated against him for non-implementation of the court’s earlier order on the NRO as well as his failure to write a letter to the Swiss government for reopening the cases against President Asif Ali Zardari.

Justice Nasirul Mulk asked the counsel to conclude his arguments by today (Thursday), adding there was no need for contempt proceedings if the counsel proved the matter of immunity before the court. He said the premier had told the court that he did not write the letter to the Swiss authorities as he believed that the president had immunity under Article 248 of the Constitution.

The counsel contended thatthe prime minister could not read the detailed verdict of the court thus he had to act on the advice of aides. “The law minister and secretary advised the prime minister,” he added.

Aitzaz Ahsan submitted that the President of Pakistan has immunity both in and outside the country. “My opinion was there is no issue in writing the letter,” Aitzaz said.

Justice Asif Khosa however asked the counsel as to whether the premier did not violate the court order by declining to write the said letter. “He acted on advice of aides, not on the orders of the court.” “Is this sincerity that your client doesn’t write letter?” he observed.

Aitzaz told the bench that different benches of the apex court had taken up the matter of implementation of court’s order on NRO however the prime minister was not held responsible for not abiding by the court order.

He contended that the case regarding implementation of NRO case should have gone to the high court. Justice Asif Saeed Khan Khosa reminded to Aitzaz that the prime minister had stated in Davos that he was ready to go to jail, but would not write the letter. “Is it not disobedience of the court order,” Justice Khosa asked.

He said the prime minister was acting on the advice of his subordinates, but was not ready to obey the court orders. Aitzaz replied that the matter of implementation of the court order should have been referred to the high court. He said there was no harm in writing the letter to Swiss authorities, but at the same time it did not warrant contempt of court, if not written.

Justice Nasirul Mulk observed that Article 204 of the Constitution empowered the apex court to take action against those who did not implement its orders. “You are saying that the implementation of the apex court order should have been ensured through the high court. Whether your client will not write the letter. Is it your bona fide intention,” Justice Khosa asked Aitzaz.

“17 judges have unanimously passed a crystal clear order on NRO. Do you want another order,” Justice Khosa asked Aitzaz, adding that the order could not be changed. Aitzaz stated that the action on the order, pertaining to writing a letter to Swiss authorities, was not possible currently. He said prime minister’s statement before the court on Jan 19, 2011 was informal. He said if prime minister had obtained advice, there was no harm, but if he did not, it did not warrant a crime. He said the order of writing a letter could not be implemented until the president was in his office.

The judge further asked the counsel that his client, the PM, was totally unaware of the court’s order regarding implementation on NRO adding that he was declaring his client as an ordinary person.

“PM was a seasoned parliamentarian and make legislation than how could you call him an ordinary person,” Justice Khosa asked Ahsan. Aitzaz Ahsan submitted that PM had immunity from the court proceedings in lieu of discharging his responsibilities.

Justice Asif Khosa however said that the court had held that personal matter could not be linked to the government responsibilities. Justice Nasirul Mulk observed that violating the court order would also be considered in the PM office responsibilities.

“The premier had not approached the court, telling that he was facing any difficulties under the law to write letter or he could send a reference to the court as well,” Justice Khosa said.Aitzaz contended that the apex court had not directed the high court to implement the NRO verdict as required under Article 187 of the Constitution.

Justice Nasirul Mulk however said that Article 187 does not mean that implementation was not only possible without high court. Ahsan replied that the role of high court as required in the Constitution was necessary for implementation.

“The apex court should have sent the matter to Islamabad High Court regarding implementation of the order for writing a letter to Swiss authorities,” Aitzaz contended. During the hearing Justice Athar Saeed inquired as to who would be responsible if Rules of Business were used wrongly. Aitzaz said no one was responsible for it as the prime minister also enjoyed immunity under Article 248 of the Constitution. “We don’t want to punish, but want implementation of the court orders,” Justice Khosa remarked.

Justice Athar Saeed reminded Aitzaz that the prime minister had been his student. He asked Aitzaz that if the prime minister was still a common man, then what he had taught him. Aitzaz said Jahangir Badr was also his student. “What you had been teaching him,” Justice Sarmad Jalal Osmany asked Aitzaz.

Aitzaz Ahsan replied that he had been teaching him ‘Rules of Business’. He told the court that judges’ remarks will be in the headlines, but there will be no reaction over them. “Should we not pose questions due to headlines,” Justice Khosa said. He said the court had not made any mind in the case, thus he suggested media to exercise restraint. “Why this case is discussed in TV talk shows, despite it being sub judice,” Justice Osmany said. The court adjourned the hearing till today (Thursday) and asked Aitzaz Ahsan to conclude his arguments the same day.

Immunity to president has nothing to do with NRO

ISLAMABAD: The question of presidential immunity under Article 248 of the Constitution has nothing to do with the Supreme Court’s NRO judgment seeking the withdrawal of an illegal letter written by former Attorney General Malik Qayyum to close down all cases of corruption in foreign countries, including Switzerland.

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.

No complete immunity to president, says Wajihuddin

LAHORE: Justice (retd) Wajihuddin Ahmed, former chief justice of Sindh High Court (SHC), on Saturday said that the president of Pakistan enjoys immunity only in criminal matters under Article 248 of the Constitution of Pakistan.

Wajih said this while addressing lawyers at the Aiwan-e-Adl on the invitation of newly elected cabinet of the bar.

He said Article 248 does not provide complete immunity to the president of Pakistan as the president has immunity only in criminal matters. He said that if the Supreme Court of Pakistan had dealt with the matters relating to Taj Haider, Sharjeel Memon, Babar Awan and other contempt issues earlier, the situation would have been different today.

He said no doubt they were backing the judiciary but the judiciary could learn through constructive criticism. He demanded of the judiciary to decide the cases as early as possible.

He invited the lawyer community to contest elections from best platform and the doors of the Pakistan Tehreek-e-Insaf were always open for them. He said that the Quaid-i-Azam, Gandhi, Abraham Lincoln were also lawyers and worked for the welfare of the lawyers.

If state waives immunity to its heads, no protection in Swiss law

ISLAMABAD: The Swiss law clearly states that if any state expressly waives the immunity of its head of state, then he cannot invoke immunity in Switzerland, according to the Swiss Federal Department of Foreign Affairs, which has a special page titled “Immunity of holders of political office and of states.”

The details of this specific law are available on the web page of the Swiss Foreign Affairs Department under the link http://www.eda.admin.ch/eda/en/home/topics/intorg/chres/imdig.html

The web page says in accordance with the Federal Supreme Court, under certain conditions a foreign (head of) state can be summoned before a Swiss court. A distinction must be drawn between:

* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or

* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).

This Swiss law will clarify a lot of confusion currently prevailing in Pakistan whether President Asif Ali Zardari enjoys immunity in Switzerland if the Supreme Court denies him the immunity and a letter is written to the Swiss authorities to reopen his money laundering cases.

Following is the full text of the Swiss law, as available on the web page of the Department of Foreign Affairs:

“To enable them to exercise their office unhindered, heads of state enjoy full immunity against legal proceedings abroad. Heads of government and foreign ministers can also claim immunity when travelling abroad. In certain circumstances, this also applies to other members of government in the exercise of their duties.

Besides the personal immunity of officeholders, states and their property also enjoy immunity. Immunity of holders of political office

While abroad, serving heads of state enjoy absolute immunity against criminal proceedings in all actions that otherwise would have been subject to the jurisdiction of these states. The immunity of heads of state is a principle embodied in customary international law.

According to the Federal Supreme Court, immunity is weakened in the following two cases:

* When a state expressly waives the immunity of its head of state, the head of state cannot invoke immunity.

* When a head of state leaves office, immunity no longer holds. A former head of state can claim immunity at most for actions undertaken in the exercise of official functions. If such a connection does not exist, the former head of state can be legally prosecuted.

* Decision of the Federal Supreme Court in the Marcos case (115 Ib 496, p. 500) (fr)

Heads of state have no immunity in the case of war crimes. The statutes of the International Court of Justice and the International Criminal Tribunals for the former Yugoslavia and for Rwanda make provision for the fact that a defendant’s official position for qualified war crimes, e.g. as head of state, does not relieve such person of criminal responsibility.

The case of Augusto Pinochet, the former Chilean dictator, revived the debate over the criminal responsibility of former heads of state for qualified crimes committed while in office. General Pinochet was held not to be immune from arrest for alleged acts of torture.

In contrast to criminal proceedings, there is less agreement on the immunity of heads of state with respect to offences under civil law. One body of legal doctrine holds that both the official actions and the private actions of heads of state enjoy immunity from civil law proceedings. Another body takes the view that immunity extends only to official, and not private, actions.

Immunity of states and their property

In Europe, the European Convention on State Immunity of 16 May 1972 regulates protection of the property of foreign states. Non-member states of the Council of Europe may also accede to this convention. Very few states have ratified the convention. In Switzerland, the convention entered into force on 7 October 1982.

On 2 December 2004, the General Assembly of the United Nations (UNO) adopted a universal convention on the jurisdictional immunities of states and their property. Switzerland will sign this convention.

Switzerland does not have a law that regulates the application of the immunity of states under international law. In accordance with the Federal Supreme Court, under certain conditions a foreign state can be summoned before a Swiss court. A distinction must be drawn between

* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or

* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).

Only in the first case can the state claim jurisdictional immunity. In the second case, by contrast, the state can be summoned before a Swiss court, but only on condition that there is a connection between the civil legal relationship and Swiss territory.

According to the Federal Supreme Court, Switzerland can also impose sanctions on the foreign state. What holds for jurisdictional immunity also holds in principle for immunity from measures of constraint: Measures of constraint may not be taken against assets and property intended for the performance of public functions.

A state can expressly waive its immunity from jurisdiction and constraint. Such a waiver can take place in various ways, either before a dispute materialises or ad hoc in a lawsuit. Since 1918, the Federal Supreme Court has followed a restrictive line on the immunity of states.