By Khalid Jawed Khan DAWN 25-1-2012

IN response to a contempt notice by the Supreme Court for non-compliance of its order in the case of Dr Mubashir Hasan vs Federation of Pakistan PLD 2010 SC 265 (NRO case), the prime minister appeared in court and his counsel reluctantly invoked the defence of immunity relating to the president under Article 248(2) of the constitution.

Article 248(2) provides that no criminal proceedings whatsoever shall be instituted or continued against the president in any court during his term of office. The Supreme Court has now fixed the case for hearing the prime minister`s counsel on presidential immunity.

As the government has expressed its unwillingness to write the letter to Swissauthorities for the purpose of reviving its earlier request to join the proceedings pertaining to financial charges against the president, it appears that the only way to avoid a contemptfinding against the prime minister is to demonstrate that Article 248(2) provides unassailable defence foritsinaction.

It seems that the issue of the applicability as well as the nature and scope of this provision would now be authoritatively decided by the Supreme Court.

However, this is a very dangerous path not only for the federal government but for the president as well. In the event that the court is not persuaded by the arguments of the prime minister`s counsel, the consequences for the government and the president could be draconian.

The government must dispassionately think before embarking on this journey.

Is there no other option available to the prime minister to avoid writing a letter to the Swiss authorities without attracting contempt proceedings and invoking the defence of immunity which in view of critics is only applicable to criminal proceedings? Actually, a simple yet powerful option is still available to the government which most surprisingly has not even been considered by its legal team so far.

In order to appreciate the argument some background facts are in order. On March 8, 2008 the then attorney general Malik Qayyum addressed a letter to theattorney general of Geneva intimating him of the intent of the Pakistani government to withdraw as a civil party from the case Re: P/11105/1997 and CP 289/97 Republic of Pakistan vs Asif Ali Zardari and Jens Schlegelmilch pending in Geneva.

By virtue of this letter the then attorney general withdrew the earlier request made on behalf of the government of Pakistan for mutual assistance and to join the proceedings pending in the Swiss court as a damaged civil party.

In the NRO case the Supreme Court, inter alia, held that this letter was written by Malik Qayyum without any authority of the federal government as there was no record available which showed that any such instructions for writing this letter were issued to him. Mr Qayyum had claimed that he was given verbal instructions by the then president (Gen Musharraf) but this too was neither put in writing as required under theRules of Business, 1973, nor did the record substantiate this claim.

The SC, therefore, held that the attorney general could not write this letter without being authorised by the federal government i.e. the law and justice division. Thus, the letter March 8, 2008 addressed by him for withdrawing the earlier request for mutual legal assistance and abandoning the status of civil party was declared by the court to be an unauthorised, unconstitutional and illegal act by Mr Qayyum.

This being the position the initial request for mutual legal assistance and securing the status of civil party was declared by the Supreme Court never to have been withdrawn. Therefore, the federal government and other authorities concerned were ordered by the court to take immediate steps to seek the revival of the said requests, claims and status. Despite this order the federal government took no step to do so for over two years. Hence the contempt proceedings.

What is most important to notice in this order is the fact that the Supreme Court did not hold that the contents of the letter dated March 8, 2008 by Mr Qayyum were unconstitutional or illegal.Instead, it held that since this act was not sanctioned by the federal government which was the competent authority and had once declined to withdraw it earlier, the letter written by him was without authorisation. The fatal defect lay not in the request made in the letter dated March 8, 2008 as such but the person making this request without proper authorisation of the federal government.

In other words, if the federal government had specifically authorised the then attorney general to write the letter, the illegality now attributed to it would not have existed. After reading the judgment of the Supreme Court, could the federal government now decide to remedy that by granting ex post facto approval to that letter? In other words, could the federal government ratify the letter dated March 8, 2008 and remove the defect pointed out by the SC in the judgment. The answer is: why not? Rather than blatantly defying theorder of the court or invoking a dubious defence which may have far more damaging and disastrous consequences for the government as well as the president, the federal govern-ment may consider this option and ratify the letter dated March 8, 2008 by granting it ex post facto approval.

After having done this, the federal government may place its decision for the consideration of the Supreme Court and submit to the latter that the defect having been cured, the underlying basis on which the direction was issued by the Supreme Court to the federal government to take steps for the revival of earlier requests, claims and status is no more required. Then the request for discharge of notice for contempt could be made.

The federal government must make a respectable submission and there is no reason why the court would not patiently hear the submissions of the government.

The court has always been reluctant to invoke its contempt power and used it most sparingly in exceptional cases. But to seek the indulgence of the court, the party must make a plausible case couched in respectful language and presented in a dignified manner. The result then may not be disappointing.• The writer is an advocate of the Supreme Court.