Who is recalcitrant? by Najam Sethi

The Supreme Court and the PPP government are inching their way towards a settlement of the NRO case letter to the Swiss government in which one prime minister has already been disqualified for contempt of court and another is in the dock. The SC has given the federal law minister, Farooq Naek, until October 5 to accommodate its concerns, or else. In the last two consecutive-day hearings, the SC has seen and commented in chambers on two drafts presented by Mr Naek and asked for final amendments, additions and deletions. Will the PPP comply by due date?

There is no reason for the PPP to drag its feet much longer. One, the court is ready to acknowledge that President Asif Zardari, the bone of contention, enjoys immunity from prosecution at home and abroad by virtue of being the head of state as long as he remains head of state. Mr Zardari is also on record for saying that any government can write the letter to the Swiss authorities after he is no longer president of Pakistan. This has to be included in the text of the letter to provide security and assurance to the PPP.

Two, the government is ready to withdraw the letter written in 2008 by the then Attorney General, Malik Qayyum, negating the Musharraf government's interest in the matter by virtue of the promulgation of the NRO in 2008. This has to be included in the text of the letter to comply with the court's judgment after the ab initio annulment of the NRO in 2009. The prime minister has already conceded this point in court.

Three, following a visit to Switzerland last month for consultations with relevant lawyers, Mr Naek has advised President Zardari not to worry about the consequences of a letter incorporating both these points. For further comfort, he has explained that Swiss law requires certain other conditions to be fulfilled, letter apart, before it can proceed with prosecution against Mr Zardari. For example, the government of Pakistan must categorically and formally seek Mutual Legal Assistance from the Swiss government to recover the $60 million proceeds from money laundering and corruption. It must also prove that since the NRO was annulled in 2009, it has not merely reopened the case but is also actively pursuing it in terms of prosecuting Mr Zardari et al and also in trying to recover $60m (neither of which it has done so far). Finally, it must notify the Swiss authorities that it has formally lifted the President's immunity or that the SC has legally denied it to him (which is not the case either). Under the circumstances, the likelihood of any serious repercussions for Mr Zardari while he is President is slim.

There is, however, one dimension of this issue that could still become a wedge between the PPP government and the SC. That is the media. It has the capacity to provoke both protagonists to dig their heels in by creating certain hurtful perceptions of the "other". For example, if the contents of any draft letter are billed as a "victory" for one or the other, the slighted one will be under pressure to reject it and both will edge back to confrontation. Indeed, the goodwill generated for resolution of the issue by Justice Khosa and Prime Minister Pervez Ashraf for finding a "middle way" can evaporate if a particular "middle way" is analyzed by the media as some sort of "political compromise" by a SC because it is expected to always act on unequivocal constitutional "principles". Equally, the PPP will be most upset if the media accuses it of backtracking on its pledge not to open "the grave of its martyred leader Benazir Bhutto" by writing any letter. It would also be irresponsible and wrong to say that discussions between the judges and Mr Naek in "chambers" are "negotiations" for a "deal". This is normal practice in sensitive issues of "national power", not just in Pakistan but in states all over the world.

Three facts are established, for better or worse. The government has to write a letter now to the Swiss authorities that renders the letter written by Malik Qayyum in 2008 null and void and technically restores the status quo ante. The SC has to sanction the immunity of Mr Zardari as long as he is head of state. Finally, the disqualification of one PM at the hands of the SC is already one PM too many. The SC should not make itself more controversial and strain its credibility by knocking out another PM and helping re-invent the PPP as a much-martyred party.

On September 25, the judges and the law minister had a good session in chambers. The next day it seemed that one side was backtracking. If there is no agreement ten days hence, we will know who is at fault for remaining recalcitrant when the drafts are inevitably leaked to the media.

http://www.thefridaytimes.com/beta3/...0120928&page=1