President Asif Ali Zardari's constitutional immunity from criminal prosecution available in the Pakistan Constitution will not apply in Switzerland where he will be governed by the Swiss law, and the international law for being a foreign head of state after the revival of the closed cases of massive corruption under Wednesday's Supreme Court ruling that struck down the National Reconciliation Ordinance (NRO). The most important questions before the Swiss courts after the receipt of a request from the Pakistan government to reopen the cases, earlier withdrawn, would be whether a foreign head of state could be tried, and whether the law allowed revival of cases once terminated on the request of the concerned government. While writing to the Swiss government, Pakistani authorities would mention in their letter that the president enjoyed exemption in Pakistan from prosecution on its Constitution. It will be a unique letter, seeking trial by the government of its head of the state. It is clear that as long as Zardari is president he can't be tried on a criminal charge in any Pakistani court because of the constitutional immunity, but after he is out of the presidency, he will face all the cases. “A major political problem for Zardari will now be that he is an accused person sitting in the presidency,” noted constitutional expert Wasim Sajjad said. “This is the biggest loss he has suffered for the time being.” The historic judgment of the full court has many features to highlight. First, it knocked down a previous apex court ruling that a person can't be sentenced in absentia because in such a trial he doesn't get an opportunity to defend himself. Now, this judgment stands overturned because under the short order the sentence of all those persons, laundered by the NRO who were convicted in absentia for not appearing before courts as they had fled abroad, were automatically revived. Second, the short order found the NRO to be against Qur'an and Sunnah as it held the ordinance in violation of Article 227, which says that all existing laws shall be brought in conformity with the Inunctions of Islam as laid down in the Holy Qur'an and Sunnah . . . and no law shall be enacted which is repugnant to such Injunctions. Third, the court verdict ruled that the NRO was violative of Article 62 (f) of the Constitution, which read a person shall not be qualified to be elected or chosen as a member parliament unless he is sagacious, righteous and non-profligate and honest and amen. It implies that since the NRO gave a clean chit to people of dubious character for not being sagacious, righteous and non-profligate, this ordinance clashes with this provision. Four, the short order also found the NRO against Article 63(1)(p) that says a person shall be disqualified from being elected or chosen as, and from being, a member of Parliament if he has been convicted and sentenced to imprisonment for having absconded by a competent court under any law for time being in force. It is not clear how proceedings would be initiated against former Attorney General Malik Qayyum and who would do so as directed by the Supreme Court. The short order said that he addressed unauthorized communications as attorney general, which had resulted in unlawful abandonment of claims of the Pakistan government, inter alia, to huge amounts of the allegedly laundered moneys lying in foreign countries including Switzerland and the federal government and all other competent authorities are directed to proceed against him in accordance with law. Proceedings may be initiated against him by the Pakistan Bar Council. The government can't take any action against him as he is not a public servant. It will be an uphill task before the Supreme Court to ensure the implementation of its ruling in letter and spirit when the government of day is hardly interested in seriously pursuing the cases against its own members under the National Accountability Bureau (NAB) law. Additionally, the government has made up its mind and is in consultation with the opposition parties to make a new law to replace the remnant of Pervez Musharraf called the NAB ordinance whereas the court ruling wants trial of the revived cases under the NAB law.
