Swiss letter saga takes a new twist
By Hasnaat Malik
ISLAMABAD: Hearing the federal government’s review petition against June 27 and July 12 orders regarding the implementation of NRO judgement, the Supreme Court on Wednesday observed that they never said to prosecute President Asif Zardari.
Justice Asif Saeed Khosa said, “We have never said to prosecute the president. We want that the government tell the Swiss authorities that not only parliament has rejected the NRO but also the highest court of the country struck it down and, therefore ignore the letter written by Malik Qayyum.”
He said the court wanted that the government renew its claim on money in the Swiss banks, adding that its up to the Swiss court to prosecute the president or not. Justice Khosa said that they had also told Aitzaz Ahsan that the president had immunity under international and customary laws.
A five-member bench of the apex court asked Attorney General (AG) Irfan Qadir to address the court on Article 248 of the constitution as it has been mentioned in the review petition clearly.
It pointed to the AG that his stance was that the prime minister could not write a letter to the Swiss authorities as the president had immunity under Article 248(2) of the constitution. The attorney general requested the court to grant him some time to seek instructions on the issue.
Justice Sarmad Jalal Osmani said good lawyers never exhausted all their arguments at a stage when it was not required. The attorney general then immediately requested for advice to solve the issue.
In the last hearing, Justice Khosa said Prime Minister Raja Pervez Ashraf was directed to write the letter to the Swiss authorities against NRO beneficiaries. The attorney general said when the court could not write the letter itself then how it could direct the PM to do so. He said that on the court order the NAB chairman wrote the letter to Swiss authorities but they did not accept it.
The court said that they were not asking the government for mutual assistance but to tell the Swiss authorities that Malik Qayyum was not authorised to close the cases in Switzerland.
The attorney general said, “The court can’t issue any direction to the prime minister in matters which fall in the domain of the functions of the PM, in view of the clear cut provision or clear cut words of Article 248(1) of the constitution. As the PM is not answerable to any court in exercise of his functions, therefore the court’s issuance of any directions becomes meaningless.”
The attorney general said, “The prime minister is high of the court.”
Justice Khosa questioned who interprets the law under the constitution. The AG said that under Article 248 the president, governor and the PM could interpret the constitution. “The constitution does not mention that the courts are to interpret the law,” he added.
Justice Khosa said that if the matter were referred to the court then under what provision would the court interpret the constitution. The AG said that the court could give its opinion under Article 186.
Justice Ejaz Afzal inquired who would decide that the interpretation was in consonance or in non-conformity with the constitution.
The AG said that for the last three years he had persistently been saying that the court was not properly assisted in NRO case. He requested the court to revisit the NRO case as important questions are involved in it. “The court is not at fault but it is due to the lack of assistance rendered to it,” Qadir said. The AG said only the constitution was supreme and not parliament or judiciary.
The attorney general said, “We should not have another accident. Already the government has lost one prime minister and order against another has been issued by court.” Justice Khosa said, “You are saying that the court was not properly assisted, therefore it absolved the incumbent PM from his obligation to implement the court order.”
The hearing was adjourned until Thursday (today).
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