By Rauf Klasra


ISLAMABAD: The defiant bosses of the Federal Law Ministry have sent a loud and clear written message to the Prime Minister Yousuf Raza Gilani that Asif Ali Zardari can be put on trial in the light of the Supreme Court’s verdict on the NRO only after he completes his five years tenure in his office and SC judges should be requested to “defer” implementation of the judgment till 2013, when Mr Zardari would walk out of the presidency.
In a major related development, Chief Justice Iftikhar Muhammad Chaudhry who was set to proceed to the USA along with his spouse on September 25 to give a lecture there about Pakistan’s judiciary’s role in the present political set-up, has suddenly cancelled his trip, keeping the dramatic developments within the country in view, particularly the hearing of the implementation of the judgment of the NRO case.
The 52 page long summary, whose one copy to be presented before the SC bench on Friday, has given two pieces of advice to the prime minister, which are set to create a huge storm in the courtroom as its recommendations might not be appreciated by the judges. This summary, exclusively available with The News, has apparently drawn battle lines between a besieged PPP government and a persistent Supreme Court.
The summary has given options to the PM Gilani. In its first option, Law Ministry summary said the investigations in the Swiss cases have already been closed as reported by the Swiss prosecutor general which was also endorsed by the former Attorney General of Pakistan Anwar Mansoor Khan.
Secondly, it said, the judgment of the SC could be implemented subject to the law and the constitution after the present president Zardari completes his tenure as the elected president of Pakistan and SC may be requested to defer the implementation of the judgment till then.
To many insiders, ten months old tug of war between SC and Government since NRO judgment on December 16, 2009 has finally entered into last phase as the countdown begins and government too was now in a mood to do or die this time, instead of withdrawing from the front as it has been happening in the past. The sources said, the summary sent to the prime minister Gilani contained the same arguments which the Law Minister Dr Babar Awan had explained before the SC bench when he along with several federal ministers had appeared before them after he was summoned by the court. The official summary has also given the whole background of NRO case to the prime minister and even the orders passed by the courts on different occasions have also been made part of the summary. The petitions and replies of the law ministry through law former laws secretary Aqeel Mirza, and former Attorney General of Pakistan Anwar Mansoor submitted to the court in response to those short orders too have been made part of this explosive summary.
The sources said even PM Gilani was now mentally ready to face any eventuality to protect his besieged president, as he believed that Mr. Zardari fully enjoyed immunity under the constitution of Pakistan and he would not yield to pressure to write letter to Swiss authority in the light of directions passed by the supreme court of Pakistan.
Prime Minister Gilani has been told in the official summary that if SC directions were implemented which were not in line with the constitution of the country, then Pakistan would be required to hand over its democratically elected president of another foreign as it would tantamount to surrendering hard earned sovereignty of 180milion people of Pakistan.
Law Ministry secretary Masood Chishti in his summary has also informed the prime minister that a sovereign state cannot be expected to hand over its serving president who also happens to be the supreme commander of the armed forces.
Meanwhile, the official summary has also brought into the notice of the prim minister that directions of the SC in NRO case have been complied with. Therefore, no further action lies. It said, the sovereignty of Pakistan anchored in its ideological basis is scared trust held by the chosen representatives of people of Pakistan the constitutional edifice culminates this will in the office of president of Pakistan presently held by Asif Ali Zardari. Therefore, exposing the constitutionally elected president of Pakistan to prosecution in foreign lands will tantamount to surrendering hard earned sovereignty of 180million Pakistanis.
Giving more reasons to oppose writing of any letter to Swiss authorities against the president of Pakistan, the law ministry said, according to the constitution, the parliament comprises the president and the two houses of parliament namely the national assembly and senate is repository of this authority of the state. This is an inalienable and indivisible composition. Any attempt that militates against this composition amounts to destroying the constitutional arrangements. The scheme and structure of the constitution postulate categorical parameters pertaining to the office of president of Pakistan. Hence the office of president cannot be denied and deprived of this representative capacity to vanguard the sovereignty and unity of the republic. Putting this office to prosecution will jeopardize the constitutionally conceived and democratically designed unity of the designed republic.
It said, no sovereign state can afford to surrender its sovereignty in an simplicity or explicit manner which offend the constitution. The order of the closure of the proceeding by a Swiss authority, having not been appealed against, ahs attained finality, therefore, any effort for revival of the cases does not offer logical positivity and would have no extra territorial validity. It said, there is no possibility of the revival of the cases under the Swiss laws, as the order of the public prosecutor of the said country has become absolute, therefore, no further step is required. The summary said, any attempt to do otherwise would become counter productive and embarrassing for the Pakistan in comity of the nation. It said, for all practical purposes this issue has become a past and closed transaction. And no further action is required.
The summary said, the president being head of the state component of parliament of Pakistan and the supreme commander of the armed forces of Pakistan can not be surrendered to the jurisdiction of a sovereign government/foreign state or a court under any circumstances. Under article 10A of the constitution of the Pakistan every person in Pakistan shall be entitled to a fair trial and due process. In the instant case, this fundamental right referred has been complied with as no notice or other due process/procedure required under the law has been followed nor any opportunity of proper hearing was afforded.
The summary also pointed out that SC had failed to consider the doctrine of the past and closed transaction when passing the short order. It said, SC erred in saying that the then AG need to show to the SC an order or authority to address communication to various authorities/courts and foreign countries including Switzerland. This court did not fully appreciate that on the same logic the original request by the then AG in 1997 addressed to the Swiss authorizers to institute proceeding, was without lawful authority and of no legal effect.
It said by virtue of international law doctrine of extra territoriality of the SC erred that it had the power to direct the federal government to revive the requests, claims and status of cases/proceeding outside of Pakistan. Vide letter October 7, 1997, written by the then AG false proceedings were initiated in the name of the so called mutual assistance against Benazir Bhutto and Begum Bhutto along with co accused. The malice of the then government is evident from the government of the letter which itself says that it is written at the behest of PML N Senator Saifur Rehman the then chairman Ehtasb Bureau, which had formed the federal government. It is admitted position from the record that the entire exercise of implicating Benazir Bhutto and Begum Bhutto was sheer prosecution and motivated by political vengeance and victimization.
PM Gilani has been told that the first step taken by Holy Prophet (PBUH) took in Madina was of the reconciliation vide Mithaq Medina and in view of article 2-A of the constitution 1973, the preamble of the constitution, no grater precedence can be presented in the court. The judgment under review failed to take note of it, hence this review.
PM Gilani has been also informed in the summary that the Dicey book on rule of law had been referred to widely to but the chapter of democracy or supremacy of parliament had altogether been ignored. If according to the Dicey the parliament says black as white and white as black, no body could challenge this. This aspect is an error which cannot be ignored in a country where its political system as per constitution is based on parliamentary democracy.
It said, the NRO therefore, enabled leaders of the main political parties to return to Pakistan and participate in a free and fair elections and paved the way for the transition from military dictatorship to democracy. This process of reconciliation eventually led to the restoration of democracy y in the country resulting in to release of the detained judiciary and their eventual restoration by the democratic government. The nation as a whole did derive direct benefit from the NRO in a return to democracy, a military dictator shedding his uniform and a better political atmosphere of tolerance between the government and the opposition parties. More importantly, the entire nation is benefiting from an independent judiciary, the summary said.
The summary said, this is a matter of record that some leaders (Shahbaz Sharif-Nawaz Sharif) prior to the national reconciliation ordinance tried to enter into their homeland in Lahore as well as in Islamabad but they were packed back and no body could rescue them from the clutches of those who forcibly ousted them from the territory of their own.
It said, the SC also erred in suggesting that national reconciliation cannot apply to the ordinary crimes. On the contrary if amnesty can be given even to the crimes recognized internationally there is no reason why the dropping of other type of the cases cannot be allowed in terms of national reconciliation. The key consideration is the victimization behind the alleged crime rather than the crime itself and reconciling the wounds of the nation after many years of political victimization which obstructed democratic progress it may be noted that during the regime of general Musharraf political leaders facing similar charges were granted pardons and released and allowed to travel abroad upon simple applications and without suspension of their sentences from the courts or even without having any recourse to the judicial system of eth country. Such releases and orders between the two individual, however, remained always intact and valid.
PM Gilani has been told that rather than striking down the NRO in its entirety the SC on the touchstones of the sanctity of statues ought to have suggested amendments to the mechanics of its functioning or any section if it deemed unconstitutional as the Court has done in numerous cases. In this matter the case of Hisba Bill passed by assembly of Pakhtunkawa province is one recent example which could be cited. It is important to note that the judgment is against the injection of Quran and Sunnah of holy prophet (PBUH) and this view is upheld by this court in the case of Benazir Bhutto.