Babar Sattar
The writer is a lawyer based in Islamabad.
The ruling government’s blatant obstinacy over implementing the NRO decision in relation to the Swiss cases is not just misconceived but almost malicious. The government is contriving yet another legal crisis by propping up issues that have no relevance to the order of the Supreme Court.
The view that the ruling party’s legal wizards have conceived a shrewd strategy to thwart the apex court ruling is extremely charitable. A more realistic assessment would be that the government’s motley legal crew is marred by incompetence and mischief. These attributes, together with a larger sense of “entitlement” infesting our society which bolsters the belief that the elites and pseudo-elites are above the law and can defy it at will, is responsible for the PPP’s foolhardy policy towards rule of law and court orders.
In the NRO case the Supreme Court ruled that the letter written to the Swiss attorney general forfeiting Pakistan’s status as civil party in proceedings pending against Asif Zardari, revoking the request for mutual legal assistance and forfeiting the state’s claim to the allegedly laundered $60 million, was an “unauthorised, unconstitutional and illegal” act of Malik Muhammad Qayyum. Consequently, it held that “the federal government and other concerned authorities are ordered to take immediate steps to seek revival of said (mutual legal assistance) requests, claims and status (as civil party).” What the apex court held with regard to suspension of proceedings in the Swiss cases is therefore different from the revival of cases within Pakistan.
The cases in Pakistan that were discharged under the National Reconciliation Ordinance stood revived when the NRO was declared unconstitutional and void ab initio. In this instance there was no legal question with regard to the validity of the process through which these cases had been terminated. Withdrawal of the Swiss cases stands on a different pedestal. Here the court held that, separately from the question of whether or not Pakistan could concede its status as civil party under the NRO, the process through which such request was made was unauthorised and thus illegal.
As Malik Muhammad Qayyum had simply not been authorised by the federal government to withdraw Pakistan’s request for mutual assistance and its claims to the allegedly laundered money, the communication he sent to the Swiss authorities must be deemed to be no communication at all. Consequently, the federal government and other authorities concerned have been instructed to communicate to the Swiss authorities that Pakistan has not forfeited its claim, withdrawn its request for mutual legal assistance or ceded its status as civil party. The questions whether Asif Zardari as president enjoys immunity under Article 248, and whether or not investigations in cases pending against him in Switzerland can be reopened, are simply not relevant to ensuring compliance with the NRO ruling.
Had Malik Qayyum been properly authorised to withdraw the Swiss cases in accordance with law, the PPP government might have been able to make a frail argument that the federal government is barred from initiating proceedings against the president under Article 248 of the Constitution. In the present case, however, it only needs to communicate to the Swiss authorities that the state of Pakistan never withdrew its request for mutual legal assistance or forfeited its status as civil party, and the letter written by Malik Qayyum had no legal effect and was of no consequence whatsoever. Such communication is not a request for initiation of proceedings, but simply the communication of a factual statement.
Whether as a consequence of such communication the Swiss authorities reinitiate investigations against Asif Zardari is for them to determine under Swiss law. In the event that the Swiss do elect to initiate proceedings on receiving such communication from Pakistan, can Asif Zardari seek a suspension of such proceedings so long as he is president under Article 248 of the Constitution or by asserting sovereign immunity? Asif Zardari’s counsel in Switzerland can certainly take up such pleas. But any possible defence that Asif Zardari might or might not be able to raise in Switzerland has nothing to do with the federal government communicating to the Swiss authorities that the previous missive they received from Malik Qayyum must be disregarded.
The only question to be determined by the federal government after the Supreme Court’s unequivocal ruling was who on behalf of the government would write to the Swiss. Section 21 of the NAB Ordinance clearly authorises the chairman of the NAB to communicate with foreign authorities in seeking mutual legal assistance or status as civil party in other jurisdictions. The NAB chairman has been vested with such authority under a federal law. While the federal government can also authorise an additional person or authority to engage in communications with foreign authorities under Section 21 of the NAB law, neither the law minister nor even the prime minister can deprive the NAB chairman of his lawful authority.
The ministry of law has no legal and administrative control over the functioning of the NAB, which was specifically created as an autonomous statutory body to remain independent of the influence of the federal government in operational matters. Consequently, the law minister has no authority to issue instructions to the NAB chairman and the NAB is under no obligation to seek legal opinion from the law ministry prior to implementing binding instructions of the Supreme Court.
There should have been no complication in implementing the NRO ruling with regard to the Swiss cases. As the NAB has the power to initiate such communication under the NAB Ordinance, the federal government can specifically authorise someone to make such communication, and the law ministry and the foreign ministry are also authorised to initiate such correspondence under the Rules of Business.
The PPP government’s legal wrangling over this issue thus seems to spring from the conceited view that elites are above the law and can get away with its defiance. This sense of entitlement pervades our society and is inimical to the very concept of rule of law and constitutionalism. The PPP’s obduracy towards the binding instructions of the highest judicial forum of the country has the potential of deepening this abhorrent sense of entitlement that rubbishes the idea of legal equality before law and promotes the view that power springs from brute force and not legal authority and that individuals are larger than the law and legal institutions.
This sense is entitlement slaps you in the face when you return to Pakistan and find minions of state agencies sprawled next to airport entry doors to help those with influence jump immigration cues. It is apparent when a traffic sergeant is hurled with abuse when he attempts to issue a ticket to anyone higher than him in state hierarchy, or even someone who has access to the holder of an influential state office. It is apparent when the courts issue summonses to senior khakis who not only refuse to show up but are enraged at the audacity of a civilian court to issue process and assert jurisdiction. And it is apparent when the newly empowered Black Coats gang up to ensure that law is enforced against all except one of their own.
This loathsome sense of entitlement has become so pervasive that even the reactions of state institutions responsible for law enforcement are influenced by it. Police officials, except for some insane exceptions, apologise for their desire to enforce the law when confronted by someone who is able to offer recommendatory introduction (taarruf). Likewise courts are loath to applying the law when it comes to bigwigs and holy cows. This culture of entitlement is not compatible with the concept of constitutionalism. If we wish to be a society where law is king, we will have to root power back into legal authority, ensure that legal instruction of a magistrate is as weighty as that of a Supreme Court bench, and that accountability for acts and omissions of individuals flows automatically notwithstanding the incidence of their birth or station in life.
Email: sattar@post.harvard.edu
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