On the face of it, Law Minister Farooq H. Naek presented before the Supreme Court on Tuesday the draft of a letter along with an authorisation the government intends to send to the Swiss authorities to implement the NRO verdict. But what transpired when the judges decided to retire to their chambers for a thorough perusal of the draft instead of in the open court encouraged rumour mills to churn out all kinds of speculations and assumptions.
The proceedings in the courtroom No 5 were brief. In compliance with an assurance given by Prime Minister Raja Parvez Ashraf to the court on Sept 18 that the letter would be written, Mr Naek handed over a white envelope to a five-judge bench headed by Justice Asif Saeed Khosa when it asked about progress at the outset of the hearing.
The minister was accompanied by Advocate Waseem Sajjad and cabinet colleagues including Religious Affairs Minister Khurshid Shah and Water and Power Minister Chaudhry Ahmed Mukhtar.
At the last hearing, the court had spelt out four steps needed for final disposition of the matter – written authorisation by the prime minister regarding implementation of the NRO verdict; drafting of the relevant communication; dispatch of such communication to and receipt of the same by the Swiss and other authorities; and final confirmation of such receipt of the relevant communication by the authorities concerned abroad. On Tuesday, the court examined the draft and retired to their chambers for a thorough perusal. Later the law minister was summoned by the judges in their chambers for a brief discussion.
When the bench reassembled, the law minister requested it to adjourn the matter because certain things had cropped up. The court adjourned the proceedings for Wednesday with an observation that the law minister had produced before the court necessary authorisation (of the prime minister) and draft of the letter to be sent by the government of Pakistan to the Attorney General of Geneva (Switzerland) and the same was perused by judges.
“The law minister requests for a short adjournment to attend to certain matters cropped up,” the court said in its order and postponed the hearing for Wednesday.
But what happened inside the chambers set off wild speculations.
A senior counsel who didn’t want to be named said the court did not appear to be satisfied with certain portions of the draft though in principle they seemed pleased with most parts of the letter.
What is bothering the court, according to him, is the immunity question under Article 248 of the Constitution which provides protection to the president from criminal proceedings till the time he holds the office as well as the Geneva conventions which extend immunity to heads of state at the international level – the two provisions mentioned in the draft.
The court, according to him, is seeking to remain confined to paragraph 178 of the NRO judgment which asked for withdrawal of the earlier letter sent by former attorney general Malik Qayyum to the Swiss authorities on May 22, 2008, leading to the closure of alleged $60 million graft cases against President Asif Ali Zardari.
But the government mentioned these provisions in the letter with the hope that the court would accept it in line with its earlier assurance that concerns of the federal government would also be taken care of.
Supreme Court Bar Association President Yasin Azad said one should appreciate the development as things were heading fast towards an amicable settlement. “Believe me 99 per cent of the issue has been resolved; only one per cent has to be sorted out which will be done soon,” he said while talking to reporters. He said the case had been adjourned because the law minister needed the president or prime minister’s nod on certain things since he could not take decisions on such issues independently.
“It is a good thing that the stalemate between the executive and the judiciary is inching towards resolution which is not only in the interests of the country but will also go a long way in enhancing the dignity of the court,” the SCBA president said, adding that he had been insisting on finding a middle way to end the standoff.
He was of the opinion that the court was in complete agreement and satisfied with the draft of the letter and things would further open up when the matter would be taken up on Wednesday. He rejected a perception that discussion in the chambers by judges was something unique.
In the missing persons’ case in Quetta, he recalled, the court had held chamber hearings because certain things were not in the public interest to be discussed in the open court.
He said he was not sure if the government’s letter would automatically revive the graft cases against the president. “We will have to wait for a response from the Swiss authorities.”
Another senior lawyer, who did not want to be named, said it appeared that there was a division in the bench. According to him, certain judges of the bench were not in agreement on the immunity issue because they believed that it was not their mandate to take up the issue when they were seized with the NRO implementation case.
“Hearing not held in the open court always gives rise to suspicions and doubts,” he said.