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Swiss letter: the sticking points

September 27, 2012


Supreme Court of Pakistan. — File Photo

ISLAMABAD: After a period of reconciliation, it appears as if the government and the five-judge Supreme Court bench is once again jostling over the language of the draft of the letter meant to be sent to the Swiss authorities.

The closed-door discussions first among the judges and then later with Law Minister Farooq H. Naek has once again led to varied opinions and theories as to what may be brewing.

The government is playing its cards close to its chest. It is quite evident that the ministers and allies who turn up in court to show their solidarity have little idea of the exact wording of the draft.

The judges have not mentioned the wording in the proceedings either and Law Minister Farooq Naek is sticking to his usual policy of smiling and exchanging small talk once he is outside the court room.

What are the sticking points that are blocking a consensus? There is no single answer to this question.

When the five-judge bench retired to their chambers to study the new draft presented by Mr Naek on Wednesday, experienced lawyers milling around the Supreme Court building had no concrete answers either.

The majority felt that the bone of contention between the judiciary and the executive seemed to the government’s decision to mention Article 248 of the Constitution as well as the Geneva Conventions in the letter. These references have been included, it is said, to underline the immunity enjoyed by the president from criminal litigations domestically as well as internationally.

One lawyer, who spoke on the basis of anonymity, was of the opinion that the immunity question under Article 248 was not simply causing disagreement with the government but also a difference of opinion among the judges.

A small number of lawyers felt that the bone of contention was the fact that the letter did not specifically ask the Swiss authorities to re-open the cases. Instead the letter simply stated that the May 22, 2008 communication by former Attorney General Malik Qayyum to the Swiss authorities stood withdrawn. The disagreement on these issues was why the law minister sought an audience from the judges in the chambers — he wanted the opportunity to convince them that it would be better to leave such controversial issues alone.

A senior lawyer argued that the government was not wrong to take this stand. “Since no-one is certain whether a request from the State of Pakistan could compel the Swiss authorities to open the closed cases and whether or not any cut-off date existed, the government seems disinclined to mention it.”

Lawyers and other observers were also discussing the difference of opinion in the bench in great detail.

This was evident once the law minister asked to speak to the bench in the chambers. Justice Asif Khosa did not appear to have any objections to the idea but Justice Ijaz Afzal Khan asked the law minister if it would not be better if the court proceedings were held in public.

The law minister argued that a consultation in the chambers was necessary for a win-win situation for the government and for the judiciary as well as for the dignity and majesty of the court. At this, Justice Ijaz once again observed that “Whatever the deficiencies are, let’s discuss them in the open court.”

The matter was clearly sensitive for even Justice Asif Khosa tried to explain the retreat to the chambers — he explained that it was not practical for the judges to sit on the bench and have a discussion among themselves as the microphone may pick up their whispers.

Though the judges then retired to the chambers for the consultation, the exchange was enough for some to discuss the possibility of a difference of opinion among the judges and what this may mean.

But not everyone was enamoured of the idea that the period of reconciliation was over. A disgruntled lawyer told Dawn that every thing had been settled between the judges and the law minister and that this back and forth was nothing serious.