Legalities of contempt and immunity matters

On the last day of the hearing of contempt case, the Supreme Court (SC) had ruled that “Prime Minister Yousuf Raza Gilani may be liable for contempt of court for not replying to the court today” in a corruption case against President Asif Zardari; it fixed February 13 as the date on which he was indicted. However, while the immunity matter may still be argued, the focus is mainly on the contempt proceedings.
Keeping in view the current state of this important matter involving international law, other countries and domestic constitutional developments, it is necessary to understand the situation properly. Under international law, money laundering is the most serious of contemporary crimes and now specifically designated as such by the international conventions of the UN. On the NRO case, I had earlier deliberated that Pakistan is a signatory to this treaty and thus bound to act upon it. No head of state can claim immunity under any international law or convention, if guilty of money laundering. Ex hypothesi, if President Zardari felt that the money in the Swiss banks genuinely belonged to him, he would have surely declared it before the Swiss authorities to end this process.
Nevertheless, the facts of the Swiss case are so damning against the accused as to make us realise why the PM’s counsel did not press the immunity issue after raising it in the contempt case. Even a moment’s reflection would bear this emphasis. Mr Zardari had not only been convicted in October 2007, but also his appeal against his conviction was rejected by the Swiss Court of Appeals on March 19, 2008. Not only this, it had even rejected his plea to exclude the State of Pakistan as a civil party from the money laundering case; it may be emphasised that Pakistan had made requests of mutual legal assistance as well. The Zardari government never brought this to the notice of the court, nor did it sought any relief for it. So, this vital distinction has never been clearly spelled out by the government. But why?
Perhaps, to keep the pretence of it being somehow a criminal matter and thus conceivably covered by the immunity clause of the Constitution. The involvement of the State of Pakistan was under the general rules of international law pertaining to procuring the mutual assistance from another sovereign state; this particular request for mutual assistance pertained to a state claim to have a verdict in its favour in the property on question that at the relevant time was in the physical control of that state. Initially, the criminal process began since Jens Schlegelmilch, the manager of the company that had been set up by the accused, was a Swiss citizen thus enabling the local authorities to proceed against him. Furthermore, Zardari’s plea that the Swiss Court of Appeals should keep the issue pending till the court in Pakistan, the then Dogar court, decides the fate of NRO was also decisively rejected for being utterly irrelevant to the merits of the appeal filed by the accused; thus, furnishing no grounds whatsoever to him.
The Court of Appeals found Zardari’s appeal so weak that it even ordered the costs and fees to be paid by the appellant. Whether these crucial facts were purposely withheld or the PM’s counsel may not have known these matters, the reality is that Zardari had presented such a poor case before the Swiss courts that despite being convicted he was ordered to bear its expenses; be that as it may, the case in Geneva shows eloquently the modus operandi of those who wield power in Pakistan.
At the time, the Pakistani government played its final part. “The Swiss trial court was to sentence Zardari on the basis of conviction by investigating magistrate, which had been upheld by the Swiss Court of Appeal” consisting of three judges. It was presided over by Judge Valerie Laemmle-Juilliard, along with two judges - Mr Louis Peila and Mrs Carole Barbey, who had rejected all the pleas and passed an order OCA/67/2008 that was delivered on March 19, 2008, within the legal time of three months. To satisfy the Swiss law, Attorney General Malik Qayyum withdrew the requests of mutual legal assistance, thereby surrendering the civil party status of the State of Pakistan for claiming its right on the plundered money lying in the Swiss banks. It is also noteworthy that at the time of the post-2008 elections, Malik Qayyum had continued as Attorney General just to undertake this ugly task. Just after the passage of the NRO in 2007, Zardari sent Farouk H. Naek to Switzerland for the same purpose. However, he had returned empty-handed because the Swiss authorities had told him that that was not possible!
The Swiss concept was that there had to be a direct order, rather than a general kind of “law” to bring about the desired result by Zardari, which should come from the Attorney General rather than the government; the Swiss authorities believed the Attorney General to be "independent” as it is in their case. So instead of going home after the 2008 elections, Malik Qayyum proceeded on this mission for which he got a few more months in office.
The immunity matter, therefore, has no substantive value to the contempt case and this realisation forced the PM’s counsel to just not argue anything about this point during the two days that he presented this case. The learned judges reminded him about this striking omission. Furthermore, the court was well aware of the fact that in the NRO matter itself was this immunity point ever raised by either the government or the President.
On the matter relating to contempt, the PM’s counsel contended with the astounding admission that Mr Gilani did not read the detailed verdict of the SC and “had acted on the advice of his legal aides.” He also submitted that “different benches of the apex court had taken up the matter of implementation of court’s order on the NRO; however, the PM was not held responsible for not abiding by the court order.” Even a moment’s reflection will show that the court was deeply concerned about the constant delays by the government on the issue. These are, to put it mildly, strange tactics that display a devastatingly lack of application by the PM, both in the style of his working and pursuit of the case in court. Anyway, the PM cannot be allowed to plead the kind of ignorance that is being pleaded on his behalf by his own counsel. As such, it is obvious that the defence having adopted the plea of saying that PM is not guilty as charged would mean either an acquittal or conviction in the absence of an apology; manifestly, it seems legally probable, that should his lawyer’s surmises be rejected by the court there would be a conviction of the PM.
It is apparent that the writing of the letter to Swiss authorities is not covered by this supposed embargo of immunity, nor in substantive terms does it prohibit them from annulling the earlier decision to stop the hearings of this case before it was unlawfully stopped by the antics of the infamous NRO declared as such by the SC. The questions, however, remain: If the stage has been reached to take the shelter of international conventions to hide the alleged corruption of the President, what is left to be said to anybody with any dignity? Is morality an alien concept when we deal with the top leadership of the country?
The writer is attorney at law (US &UK), senior advocate of Supreme Court, and professor at Harvard University.

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.

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