The writing on the wall

THREE sets of people awaited Prime Minister Yousuf Raza Gilani in the courtroom yesterday.

The first were crowing about the majesty of the law; the second, howling political persecution. On the fringes were the eye-rolling third set who were telling everyone that the $60m cheque from the Swiss government won’t be arriving anytime soon. That is probably the one uncontestable truth in this politico-legal battle.

At the heart of the matter is the letter the government refuses to write to Swiss authorities to reopen graft cases against Benazir Bhutto and President Asif Zardari.

In 1994, when Bhutto was premier and Zardari her investment minister, Swiss companies SGS and Cotecna were awarded the contract to inspect Pakistan cargo. The subsequent Nawaz Sharif government accused the duo of having taken kickbacks on the contract and funnelling proceeds through offshore companies into Swiss accounts.

In 1997, Swiss judicial authorities accepted Pakistan’s claim to the monies, froze the assets worth $60m and started investigating the charges. But a decade, a dictator and an NRO later, then attorney general Malik Qayyum withdrew Islamabad’s request for judicial assistance and relinquished all claims to the assets. Switzerland promptly slammed shut the case file and unfroze the assets.

And then the Supreme Court shot down the NRO. Months of sniper warfare — adjournments, delays, casualties (including AGs, law secretaries and a NAB chairman) — were succeeded by an appeal and a review petition that dragged on for many more months.

Even the government’s political posturing — Babar Awan-style recalcitrance; malingering over immunity and the re-induction of Aitzaz Ahsan — didn’t work and two years after the NRO judgment, the court’s finally punishing the government for not writing the letter.

Question is, to what end?

The recovery of the $60m is a pipedream? The money is probably winging its way around the globe in discrete packets if it isn’t hiding in multiple offshore accounts.

Ouster of a corrupt, incompetent and unpopular government? Too convoluted a procedure, even if the court were interested in ISI-style political engineering. “Even if Gilani’s convicted, the appeals process will carry on till March,” explains SC advocate Salman Akram Raja. (This gives the PPP enough time to pack the Senate — their biggest concern at present.)

“If the appeal is dismissed, the speaker of the National Assembly has 30 days to decide whether the conviction merits disqualification from being an MNA and whether she ought to send a notice to the Election Commission to decide the disqualification issue. [Since she probably won’t do so], we’ll see further legal proceedings, which at worst can end in a court directive to the speaker to refer the matter to the EC, which can take another three months to decide the issue, which will bring us to July…”

The government is already talking of October elections; hence this seems a remarkably tortuous route to an inevitability.

So why is the SC pushing so hard? The answer depends on who you talk to. Political pundits in Islamabad snidely insist the court is out to avenge the humiliation caused by the government’s defiance.

Meanwhile, legal purists such as Raja believe it’s to save the judicial system, which derives its power from compliance. If disgruntled litigants insist they know more law than the courts and refuse to obey its orders, the system stands to collapse.

This is why even lawyers who privately concede that the demand to write the letter was born of a failure to appreciate the complexities of the NRO case say that backing down is no longer a feasible option for the SC.

But can the Swiss cases be reopened, even if the letter is written? Theoretically, yes. “Switzerland is among the countries trying to clean up its image as a money-laundering haven,” says lawyer Ahmer Bilal Soofi, who has worked on formulating the global regulations against money laundering.

He points to the global crackdown on funny money; the UN convention on corruption and also recent changes in Swiss law as signs of changing times. “The new Swiss law has created a presumption that Politically Exposed Persons have tainted money and also expresses a desire on part of the Swiss to repatriate such monies.”

Soofi believes a request, based on a decision by a court that has international credibility, won’t be so easily dismissed by the Swiss. Even the legally prescribed time-bar on the reopening of cases, he argues, may be relaxed if Pakistan describes Qayyum’s letter as a fraudulent act.

(He does, however, identify practical issues: the modalities prescribed by Swiss law for reopening cases; requirements for new evidence; whether the outcome is worth the effort, especially if the money has left the Swiss jurisdiction; and whether following the money trail is feasible.)

The only real snag then, chorus the lawyers, is the question of immunity — something AG Geneva Daniel Zappelli raised himself in an interview in April 2010.

International law recognises sovereign immunity, which protects heads of state from civil and criminal prosecution during their time in office. The only two exceptions to this rule are when the state itself waives immunity or the head of state is accused of war crimes.

Since neither exception applies here, why doesn’t the government just write the letter and let the burden of non-compliance fall on the Swiss legal system?

This one’s trickier because here’s where the line between law and politics gets blurred. Some argue that such a letter may be construed as an implicit waiver of sovereign immunity, especially if it’s backed by the highest court of the land. This, they say, is probably the reason Ahsan didn’t raise the question of immunity before the court — despite being goaded by the judges.

Without a definite pronouncement by the apex court, sovereign immunity is a fuzzy constitutional provision to be argued over.
Once the parameters of immunity are authoritatively mapped by the Supreme Court, Zardari may stand exposed to a raft of proceedings. Foreign jurisdictions would find it hard to ignore a final judgment in Pakistan that says he’s not completely immune; local courts would be bound by the order. And therein lies the rub.

The writer is a freelance journalist.