PM off the hook if writes letter
ISLAMABAD - The Supreme Court insisted Thursday that Prime Minister Yousuf Raza Gilani write to the Swiss authorities to reopen graft cases against President Asif Ali Zardari, saying “No one is above the law.”
Heading an eight-member bench hearing Gilani’s intra-court appeal against an order summoning him on February 13 for framing of charges in the contempt of court case, Chief Justice Iftikhar Chaudhry said the contempt proceedings could end if the PM wrote to the Swiss authorities. The 60 million dollars allegedly laundered will come back to Pakistan only if the letter is written to Swiss authorities, the bench held, as it adjourned hearing till today, directing Gilani’s counsel Aitzaz Ahsan to complete his arguments on Friday by 10:30am.
As the day’s proceedings began, the CJ showed displeasure over certain parts of the 200-page draft of the appeal. The bench said the Dec 16, 2009 NRO judgment has to be implemented at all cost in letter and spirit. It observed that for past over two years the government has been continuously committing contempt by disobeying NRO verdict on one pretext or other. The chief justice remarked that even the appeal amounts to contempt of court and urged Aitzaz to advise his client against showing disrespect towards the court. Filed by Aitzaz Ahsan on Wednesday, the premier’s appeal had said it would be ironic to send to prison a democratically elected prime minister who had released detained judges of the court even before taking oath as the chief executive.
Justice Chaudhry remarked that a country’s prime minister should have high ethical standards and that the language of the appeal gave the impression that the premier wanted to influence the court’s judgment.
The chief justice questioned Ahsan on how he (Gilani) could include paragraphs in his appeal which say that the contempt case cannot be initiated against a prime minister who helped in restoring the judges. Ahsan, in reply, said that even if a contempt case was initiated against him, keeping in view his struggles for the restoration of the judges, he would have taken the same stance.
The court said relief was being sought in return for so-called favours. “We do not know how you were convinced to write such things in the appeal,” the CJ remarked. “By the grace of Allah we did not bow before those who considered themselves powerful,” CJ remarked.
Also, Justice Tariq Parvez in his remarks said that the prime minister keeps reiterating that he ‘freed the judges’ and that whatever a prime minister does, he does in his official capacity. “We refused to take oath under the PCO and did not request anyone to reinstate us,” Justice Parvez said.
The three objectionable paragraphs of the draft appeal were later removed on the directions of the CJ, after Aitzaz and the advocate on record agreed.
Aitzaz presented his arguments before the court and pointed out that the Swiss authorities had themselves closed the cases in 2008, when Zardari took office, on the grounds of immunity and that there was no third party to claim the funds.
He said that Gilani was appearing before the court in a personal capacity and if convicted, he would be sent to jail not as the prime minister, but as a citizen. He also maintained that the court should dispose of the contempt notice, saying that the case is not one of contempt whether the prime minister is right or wrong.
President Zardari and his late wife, former Prime Minister Benazir Bhutto, were suspected of using Swiss bank accounts to launder millions of dollars taken in alleged bribes paid by companies seeking customs inspection contracts in Pakistan in the 1990s.
Aitzaz argued as per the Rules of Business the PM followed advice of law secretary and attorney general therefore has not committed any contempt. He said they had advised his client that as the proceedings and inquiries against President Zardari, late Benazir Bhutto and Nusrat Bhutto have been closed in Switzerland therefore there was no need to write the letter to the Swiss authorities for reviving their cases.
Justice Saqib inquired from the learned counsel why the PM not applied his mind to take stance on the summary. He said summary is actually the proposal and has no bidding effect. He further asked should the PM follow the advice given to him by the law ministry or need to follow orders of the Supreme Court.
Aitzaz maintained there was no wilful disobedience on the PM’s part and he had good faith in not writing the letter. He prayed that benefit of doubt should be given to his client. He pleaded that his client was never contumacious to the court, saying the court should hear his appeal by detaching it from the main judgment on NRO. He prayed to the bench to discharge show cause notice on merits and not consider other aspects of the judgment.
The bench remarked that instead of asking to dispose of the notice, the prime minister should be asked to tender a statement of repent and assure the court that he will comply with its orders. The counsel said that it is not the duty of the Supreme Court to enforce the orders, but is the responsibility of the High Court.
The bench, in response, said that the High Court can proceed with the case, but even then there would be no way out. “You have to implement the judgment in any case,” the chief justice said, addressing himself to Aitzaz. “You have to persuade the chief executive that this is court judgment and you have to implement it,” the CJ insisted.
Justice Saqib Nasir asked the learned counsel that the NRO judgment has to be implemented at all cost and for that give us the options how the para 178 of judgment would be given effect in letter and spirit. “Your client was issued show-cause notice as he was not implementing the 17-member bench’s judgment.”
Aitzaz said that he was prime minister of Pakistan. The chief justice remarked it does not mean that being a PM he ridicules the judgment of the apex court. The court told Aitzaz that they were not happy to issue contempt of court notice to anyone and his client is the prime minister of the country. The PM being the chief executive of the country should not have doubt to bring back the money wherever it was lying all over the world.
The chief justice insisted that the prime minister should have taken the initiative in re-opening those cases instead of defending chairperson of his party. He said in the interest of the nation, being the chief executive of the country, it was the duty of the prime minister to implement the court order.
The court said it had shown patience in the two years and three months, since it ordered that the matter be taken up with the Swiss authorities. The judges, CJ Chaudhry said, had taken their oaths under the constitution of Pakistan and gave judgments in accordance to it. “The prime minister should not be the person to undermine any institution. This money will not come to our pockets. Actually it is the nation which wants this money,” the chief justice said.
Justice Khawaja inquired whether the government has probed how much money was lying outside the country. “We should not feel ashamed that the money lying in Swiss banks pertains to money-laundering cases, but have to see this as national wealth,” the court observed.
The chief justice said that huge amount of national wealth is lying in Swiss banks. Yousuf Raza Gilani is representative of 180 million people of Pakistan and he was elected without any opposition. The prime minister should rise above the party affiliation.
During the proceeding, the chief justice asked the learned counsel can they use him as vehicle considering him a law officer of the court, who is highly respected and is a great jurist, instead of an attorney of the PM to persuade his client to write to the Swiss? He remarked that the trial of prime minister is not an ordinary matter, adding you can always tender a legal and wise advice to the PM.
The court noted that President Asif Ali Zardari in an interview to Hamid Mir, an anchorperson of a private channel, stated that letter to Swiss authorities would not be written. Aitzaz said that for almost one year the court did not take up the NRO case. The chief justice said: “We have shown restraint.”
The court questioned what are the impediments in writing letter to Swiss authorities if the government says there was nothing in Switzerland? Aitzaz Ahsan said even if the government writes to Swiss authorities on the Supreme Court order, it would be great embarrassment if the Swiss courts refused to accept apex court verdict. Justice Saqib Nisar remarked the shame for Supreme Court would be when the government will refuse to implement its judgment, while under Article 190 the executive and all other authorities are bound to obey apex court judgments.
Aitzaz said that international law grants immunity to the head of the state. Justice Saqib said that if the international law has immunity for the president then those could not be imposed domestically. He argued that the court should not use contempt of court (CoC) notices as tool to implement its order. Justice Saqib remarked that the power of CoC will always be with the court to implement its orders.
Aitzaz said that money could be brought back from the Switzerland after the conviction. Following that the Pakistan government will have third-party right to bring back money. But present position is that the cases of NRO beneficiaries stand closed. He said in 1997 numerous documents under International Mutual Legal Assistance were brought to Pakistan.
The chief justice said these things were not brought before the knowledge of the apex court at the time of appeal and review petitions, while Justice Asif Saeed Khan Khosa and he himself (CJP) asked the federation’s counsel that whether he wanted to seek immunity under Article 248.
Directing Gilani’s counsel to complete his arguments on Friday by 10:30am, the bench adjourned hearing till today.
PM off the hook if writes letter