The Supreme Court (SC) heard Prime Minister Yousuf Raza Gilani in response to a notice for contempt on January 19, who told the seven-member bench that while he had the highest regard for it, but could not comply with its wishes. The PM said that he had not intended to defy the court’s earlier orders given as far back as December of 2009 about writing to Swiss authorities for reopening the money laundering case against President Asif Zardari, but “it is my conviction that he has complete immunity inside and outside the country. In the Constitution, there is complete immunity for the President.” With respect to this view, I’m constrained to bring out the following points of constitutional jurisprudence and international law that ought in my submission to govern the present situation.
Firstly, Zardari and his late wife were found guilty in absentia by a Swiss court in 2003 presided over by Judge Daniel Devaud, who held that this money belonged to the people of Pakistan. But pending their appeal, the Swiss officials agreed to drop the case in 2008 at the request of Pakistani government made through the then Attorney General, who was ordered to be proceeded against by the SC for doing so in the NRO matter.
Anyway, the stand taken by the PM’s counsel appears to be, in jurisprudential terms, bogus. The statement reported in the press that: (i) the President “enjoyed immunity” under Article 248, therefore, there was no need to write a letter to the Swiss authorities; and (ii) the court had a responsibility not to insist on writing a letter that “would eventually be dismissed in Switzerland” (on January 19). But the question is: How can a State functionary say that because “it is his conviction” that “the President has immunity in the Constitution” the letter was not written? As such, it is obvious that the defence having adopted the plea of saying that the PM is not guilty as charged would mean either an acquittal or conviction in the absence of an apology. In case, the PM counsel’s surmises are rejected by the court, he would be convicted.
Further, the matter of enforcing the Swiss court’s orders - then pending before an appeals court in Geneva - is not a legal matter that can be conveniently categorised as “criminal proceedings” as contemplated by Article 248(2) of the Constitution. Not only there is the fundamental jurisprudential question of first ascertaining which doctrine of law is applicable, is it the constitutional legal protection afforded to a Head of State within domestic forums or are we taking about international legal norms that grant such immunity to foreign sovereigns under the age-old principles of immunity granted to mutually agreed norms of law of nations?
Aitzaz’s argument about writing the letter was repeated by the PM in the SC; he said: “President enjoys immunity within Pakistan and abroad.” It is surely difficult to understand the basis of this assertion, as it is based on utter confusion of the applicable legal principles. Domestic immunity has nothing per se to do anything with the exemption granted to a Head of State under international law. So, the clause in question namely Article 248 would not be applicable by international legal norms.
It is, nevertheless, pertinent to mention that both the PM and his lawyer also submitted that President Zardari enjoyed immunity in Switzerland under the Vienna Convention 1961, by saying that he was immune till he was holding the seat of the President, “so it will be useless to write any letter to the Swiss authorities.” It signifies that there is some vague kind of reliance on this aspect without specifically pinpointing the exact clauses of this treaty that would be available to Zardari.
It is in great public interest to know the technicalities of the laws of immunity. This subject is addressed both in constitutional and under international laws, but their basis and effect are utterly different from each other. For instance, the UK drastically altered its position on sovereign immunity through the Crown Proceedings Act 1947, which made the government generally liable, with limited exceptions, in tort and contract (although, it was possible even then to claim against the Crown with the Attorney General’s permission). At this juncture, however, if that stage is reached to take shelter of international conventions to hide the alleged corruption of the President, what is left to be said anything to anybody with any dignity?  
Let us move on to the international norms dealing with immunity; there is unmistakably a move towards the worldwide acceptance of a restricted doctrine and consequently application of immunity. Since the Second World War, there are statutory inroads of this thrust as courts and legislatures disapproved of blanket immunity because States had begun regular business enterprises under the normal channels of international commerce and trade. So pronounced is this trending that it even impacted the domestic constitutional position. The US and European commercial enterprises engaging in transactions with such States began to insist that all contracts waive the sovereign immunity of the country, irrespective of how it came. This situation led the courts to reconsider the ‘broad’ immunity and adopt instead a doctrine of restrictive immunity, which excluded commercial activity and property began to gain international acceptability.
By relying on Roman texts of law, a distinction was created by classifying acts that are jure imperii and acts that were jure non imperii. In other words, the courts have to determine a priori whether the action of the claimant of immunity was of sovereign nature or non-sovereign nature. The court has to decide whether Zardari’s case pertains to civil or criminal proceedings; the fact remains that immunity is not something that is invoked automatically, ‘but has to be specifically pleaded and sought from the court’ by the claimant. That having still to occur, it is wrong to argue that Zardari has “immunity”. It is really irrelevant, therefore, what the PM or the lawyer on behalf of the contemnor says about this matter. Under the “doctrine of restrictive sovereign immunity”, no such immunity is available where financial crimes are committed through contracts signed by States or their agencies.
In 1952, the US State Department decided that in future, requests for immunity would be governed by adopting a shift from absolute immunity to restrictive immunity. In 1976, the Congress passed the Foreign Sovereign Immunities Act (28 USCA § 1601, et seq) to provide foreign nations with immunity from the jurisdiction of US federal and State courts, but only in certain circumstances. Pakistan, too, has a Diplomatic Immunity Act with proceeds on similar foundations and there is the1983 reported matter dealing with the then Soviet Union in which Pakistan SC refused to accept the argument of absolute immunity.
Another point to be kept in mind is the question that a court would normally ask a claimant whether the activity for which immunity is sought is within the scope of the official’s authority? Not one but many reported cases are available for this proposition. In Coplon & Gubichev Matter 1949, the UN did not claim immunity  for the person accused of espionage. Similarly, in Essayan V Jouve 1962, France did not claim immunity for an official. As such, it would seem clear to me that President Zardari would not be able to successfully claim any immunity from the Swiss courts.
To conclude, it is submitted that in any case Article 248 cannot be interpreted the way the official quarters are apparently now telling the court. Arguendo, if the President or Governor enjoys unqualified immunity from criminal acts, then he cannot be punished even under Article 6 for subverting the Constitution? The ouster of jurisdiction Articles of the Constitution, like Article 248, cannot be interpreted to condone any action that is against the fundamental law of the land, or if constitutes a major crime under international law.
Money laundering is the most serious of contemporary crimes under the International Conventional of the United Nations, of which Pakistan is a signatory. No Head of State can claim immunity under any international law or convention, if guilty of money laundering. Ex hypothesi if Zardari felt that the money in Swiss banks genuinely belonged to him and that he had earned it through legal means, he would have declared it.
The writer is attorney at law (US), senior advocate of the Supreme Court, and professor at Harvard University.
Email: fhoxon@hotmail.com