The PPP’s Volte-Face

It’s a familiar negotiation trick: Party A stubbornly refuses to yield an inch in response to a persistent demand of Party B, because doing so is seemingly not possible for Party A, thus bringing the negotiations to a stalemate. But then Party A springs up a surprise on all. It backpedals and accedes to the request of its counterpart and then uses the opportunity to parade its “sincerity” and “generosity” in making “too big a concession,” whereas in fact accepting the demand was never a big deal for it.
This befits the Pakistan People’s Party (PPP) government’s decision to at last write to the Swiss authorities in compliance with the long-standing orders of the Supreme Court and in repudiation of its earlier stance consistently maintained over the last two-and-a-half years that doing so was an impossible proposition.
Down the memory lane: On December 16, 2009, the Supreme Court struck down the 2007 National Reconciliation Ordinance for its being in conflict with several provisions of the Constitution. Since the NRO was declared unconstitutional ab initio, all actions taken or orders passed to give effect to that ordinance logically became invalid. One of the actions taken under the NRO was withdrawal of an earlier request made by the Pakistani government back in 1997 for becoming a civil party as well as for mutual legal assistance in a money-laundering case in Switzerland. The case involved some high-profile people from Pakistan, including Asif Zardari, who since September 2008 is president of Pakistan.
The request for withdrawal was made by then-attorney general of Pakistan Malik Muhammad Qayyum-ironically the same person who, as a judge of the Lahore High Court, had convicted Mr Zardari and his wife Benazir Bhutto for accepting kickbacks in awarding pre-shipment inspection contracts to two Swiss companies. The conviction was set aside by the Supreme Court on the ground that it was mala fide, and Malik Qayyum had to step down in disgrace.
The NRO judgment, inter alia, had declared that Malik Qayyum was not authorised to make a request for the withdrawal and ordered the government to write to the Swiss authorities for revival of the request. It is this order which the government had been reluctant to implement, on the plea that Mr Zardari enjoyed presidential immunity inside and outside Pakistan under the relevant constitutional provisions (Article 248) and international law (sovereign immunity), respectively. That was the reason, the argument went, why the Pakistani government could not ask the Swiss authorities to reopen the case, which the defence claimed was closed on merit. Correspondence with the Swiss government could be made only after President Zardari had vacated his office. In a word, the PPP’s syllogism was: “No criminal proceedings can be initiated against a president; Mr Zardari is the president; therefore, a letter to the Swiss government can’t be written.” Logical, wasn’t it?
Not so fast. The argument was fallacious because it was based on the mistaken assumption that intimating the Swiss authorities about the invalidity of the former attorney general’s request for withdrawal amounted on the part of the Pakistan government to prosecuting its own president. Not surprisingly, that mode of reasoning was turned down by the Supreme Court in the NRO review petition on the ground that the government had failed to establish that Malik Qayyum’s letter to the Swiss authorities could be treated as authorised on the basis of sovereign immunity. The courts didn’t go into the scope and limits of presidential immunity nationally or internationally and only insisted on conveying to the Swiss government that the request for the withdrawal made by Malik Qayyum in the wake of the promulgation of the NRO was invalid. The courts, it is important to mention, never asked for re-opening of cases against the president. There’s not a single sentence in the NRO judgments asking for a trial of the president.
Besides, whether President Zardari enjoys immunity in the Swiss cases is for that country’s laws or courts to decide, rather than Pakistani courts, which don’t have extraterritorial jurisdiction. Hence, Article 248, or for that matter any other provision, of the Constitution of Pakistan can’t be made a basis for presidential immunity in cases abroad.
At any rate, the ruling party had been maintaining that it was being pushed by the judges to do something which was manifestly “illegal” and “unconstitutional.” Since it was inconceivable that the government would violate the Constitution, corresponding with the Swiss authorities ruled out. It was that stance of the government that led to the ouster of Yousuf Raza Gilani from the prime minister’s office on contempt-of-court charges.
The ruling party will need a devil’s advocate to account for its volte-face on writing to the Swiss government. For if doing something was “unconstitutional” for the last three years, how could it all of a sudden become constitutional now? The fact of the matter is that writing the letter in compliance with the directives of the Supreme Court was never unconstitutional. Rather, it was the other way round, as the government’s refusal to carry into effect the apex court’s orders was itself illegal and unconstitutional. It was simply a matter of withdrawing Malik Qayyum’s letter and the question of presidential or sovereign immunity was never involved in the withdrawal.
Why did the PPP turn that simple matter into a clash of institutions? The party has some of the country’s best legal minds, who, it’s hard to believe, were not aware of what complying with the NRO verdict entailed and what it didn’t. The only plausible explanation is that the ruling party converted a legal issue into a political one and then blew it out of proportions with a view to making political capital out of that. The president himself on several occasions stated that writing to the authorities in Switzerland would amount to the trial of the grave of his wife-a cardinal sin for which history would never forgive his government.
But, thank God, drafting and dispatching the letter has no such implications, so its author(s) will not commit any sin. Mr Zardari will continue to hold the office of president and his party will be able to claim for years to come that it went out of the way in respecting the judiciary.