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ISLAMABAD: Barrister Aitzaz Ahsan, who is defending Prime Minister Yousuf Raza Gilani in the contempt case, said in the Supreme Court on Wednesday that his client was not disobeying its order to write a letter to the Swiss authorities but wanted the matter to be deferred till the completion of tenure of Asif Ali Zardari as President.
“Asif Ali Zardari as head of the state enjoys blanket immunity in all courts under international laws,” Mr Ahsan argued before a seven-judge bench, headed by Justice Nasir-ul-Mulk, hearing the contempt of court case against the prime minister for not pursuing graft cases in Switzerland in which President Zardari is also an accused.
He said Mr Zardari could not be presented before a Swiss magistrate as long as he held the office of the president. Submitting the president to foreign courts will humiliate Pakistan.
The Swiss courts, he said, were not asking and “we are going to submit him”. He contended that the cases in Swiss courts had been closed on merit and if the apex court wanted to revive them it should keep in mind that the president’s office had complete immunity.
Justice Asif Saeed Khan Khosa, a member of the bench, said the court had only issued directives for the revival of cases as damaged civil party and making request to the Swiss authorities for ignoring a letter written by former attorney general of Malik Abdul Qayyum.
“Where the Supreme Court has asked the prime minister to give in writing that he will be prosecuting the president? Why should we ask the Swiss authorities to prosecute our worthy President?” he asked. “We have no desire to send anyone to jail. They are our president and prime minister.”
Barrister Ahsan drew attention of the bench to its NRO judgment and said that the word “alleged money-laundering” had been used against President Zardari in a case which had been closed on merit.
Justice Ejaz Afzal said that after writing a letter, the international immunity for the head of a state under international conventions could be invoked.
The counsel asked why he should claim immunity and said the bench should see whether or not Asif Zardari was the head of state and issue an order and then the prime minister would consider it. “A head of state is even immune to allegations. It will bring dishonour to the whole country,” he said.
Referring to para 178 of the NRO judgment, Justice Nasir-ul-Mulk asked whether the issue was over for them to reconsider and referred it back to the 17-member larger bench. Mr Ahsan said he was not seeking a review of the verdict. “Will it be justified to sentence his client over the issue?” he asked. Justice Saeed Khosa said that during the review plea hearing he had specifically asked former law minister Babar Awan a question over this issue which was parried. He said an opportunity had been provided for finding a way.
Mr Ahsan cited Vienna Convention on Diplomatic Relations 1961, Vienna Convention on Consular Relations 1963 and State Immunity Ordinance (vi) of 1981 and said a head of state enjoyed absolute immunity under international laws from all courts in civil and criminal matters. He said such immunity had been held out by all courts without invoking it.
The counsel said the purpose of these laws was to provide immunity to diplomatic missions and for the benefit of individuals performing functions for a state.
Answering a question put by the bench, he said Article 31 of the Vienna Convention 1961 did not directly apply to a head of state but held through judicial verdicts because he was treated under customary laws in a separate category. He cited verdicts titled A.M. Qureshi and Mighall versus Sultan of Jahpur to make his point.
The bench adjourned the hearing for Thursday and asked the counsel to conclude his arguments before break.—APP
