The Supreme Court Thursday re-summoned Prime Minister Syed Yousuf Raza Gilani to appear before it on February 13 to be indicted with contempt over his refusal to ask Switzerland to reopen graft cases against President Asif Ali Zardari.

Supreme Court decides to indict Prime Minister for contempt: 'We are satisfied that prima facie there is a case for further proceeding into the matter....'"After the preliminary hearing, we are satisfied that prima facie there is a case for further proceeding into the matter. Adjourned for February 13, for framing charges. The Prime Minister is required to remain present in the court," the head of the seven-member special bench Justice Nasir-ul-Mulk said in a short order.

The bench also comprising Justice Asif Saeed Khan Khosa, Justice Sarmad Jalal Osmany, Justice Ejaz Afzal Khan, Justice Ijaz Ahmed Chaudhry, Justice Gulzar Ahmed and Justice Muhammad Ather Saeed decided to indict Prime Minister Syed Yousuf Raza Gilani after his counsel Aitzaz Ahsan failed to successfully persuade the court that President Zardari enjoyed immunity under Article 248 of the Constitution.

During the course of hearing, Justice Mulk observed that there were grounds to proceed against Prime Minister Gilani over his refusal to follow a court order and ask Swiss authorities to reopen graft cases against President Zardari. Gilani was previously summoned to appear before the court on January 19, when he refused to back down on Zardari's immunity. At the outset of the hearing, Aitzaz Ahsan apprised the bench about the Rules of Business over the advice taken by the Prime Minister.

Ahsan submitted that the Prime Minister was authorised to reject a summary. However, in the vent that he did not reject it, it was not a crime. He added that the premier had approved a new summary on September 23, 2010, which was drafted and presented to him by the then law secretary, Aqil Mirza. Ahsan contended that according to the summary, the Swiss cases against President Zardari and the late Benazir Bhutto were not closed in response to a letter written by the then Attorney-General Malik Muhammad Qayyum to the Swiss authorities. In fact, he added, these cases were closed by the Swiss authorities due to non-availability of evidence.

He further argued that as the case proceeded further and the court ordered that a letter was required to be written, it would be written. Justice Asif Saeed Khosa said the court had asked for rectification of an error, which had been committed. "Everyone knows that the advice given to the Premier is not correct". Another member of the bench, Justice Ejaz Ahmed Chaudhry noted that during the hearing of the NRO review case, the government had not said that the cases had been closed.

Aitzaz maintained that the Attorney General for Geneva had stated that Swiss cases against Asif Ali Zardari and the late Benazir Bhutto had been closed due to lack of evidence. He told the bench that a former Attorney General, Chaudhry Farooq had written a letter to the Swiss government in 1997 for legal assistance and in response to that letter, over 1000 documents came to Pakistan. On those basis, the counsel added, the SGS and Cotecna cases were tried in Pakistan.

In those cases, he said all the accused, except for Asif Zardari, had been acquitted. Justice Khosa said the trial of the case should be conducted in Switzerland, adding that if someone was convicted, the money could be brought back to Pakistan. "Your contention is that...the Swiss cases stand closed," Justice Nasir-ul-Mulk asked Aitzaz. Justice Mulk added that the Premier contended that the President enjoyed immunity under the Constitution of Pakistan. Justice Gulzar Ahmed asked Aitzaz to defend the Premier on strong and solid grounds. Justice Osmany told Aitzaz: "You sometimes maintained that your client was mistaken...at other times that your client was labouring under a misconception." Meanwhile, the bench took half-an-hour break for consultation before it announced the order.

AFP adds: The government argued that Zardari has immunity from prosecution while head of state and accused judges of plotting with the military to wage a witch-hunt against him. Switzerland shelved the cases in 2008, when Zardari took office.

Gilani was previously summoned to appear in court on January 19, when he refused to back down on Zardari's immunity. Experts say that if convicted, he could be jailed for up to six months and disqualified from public office. Gilani's lawyer Aitzaz Ahsan said it was possible to appeal.

"He (Gilani) has been asked to be present in person on February 13 when he will be indicted," he said. "There is a possibility for an appeal in this matter. It is up to the court whether to suspend this order or not. This will be decided after getting a copy of the order," Ahsan added.

Mulk's announcement came as a something of shock in a country where threats to Zardari appeared to be receding as a parallel investigation into a secret memo allegedly written by a key aide to the Americans has unravelled. There was no immediate reaction Thursday from the prime minister or senior colleagues in the main ruling Pakistan People's Party.

Legal experts told AFP that Gilani could avoid being charged by appealing against Thursday's order, apologising or promising to write to the Swiss. "On February 13, the charges will be read out to him. He will have to admit or deny. If he admits and apologises, the court can dispose of the case," former Supreme Court judge Tariq Mahmood told AFP.

"The court does not unnecessarily punish people in contempt cases. It wants its dignity and decorum maintained. It all depends on how the judges proceed." Ahsan, hugely respected by judges for his role in forcing the government to reinstate independent judges in March 2009, has been considered Gilani's best hope of getting off the hook.

In staggering exchanges in court, the judges seemed determined to force the prime minister to write to the Swiss, although the Swiss themselves have said there is no case as long as Zardari is head of state. "Suppose we discharge the (contempt) notice and withdraw the proceeding, what will you do? Will you write a letter or not?" Judge Sarmad Jalali asked Ahsan at one point.

Ahsan said that first the contempt notice had to be discharged. "If you order writing the letter, it will be carried. But you have to decide on the contempt issue. I seek discharge of the notice on merit and I will not give any commitment on conditional discharge of the notice."

Judge Asif Saeed Khosa also enquired why the letter had not been written. "This is the court's order and there is clear direction from the court." Ahsan argued that the cases in Switzerland have been disposed of. The allegations against Zardari were frozen by a Pakistani political amnesty imposed in 2007, which the courts overturned in late 2009.

Tainted by corruption allegations, Zardari is nicknamed "Mr 10 Percent" and spent 11 years in jail on charges ranging from corruption to murder, although his supporters point out that he was never convicted. Zardari and his late wife, prime minister Benazir Bhutto, were suspected of using Swiss bank accounts to launder about $12 million in alleged bribes paid by companies seeking customs inspection contracts in Pakistan in the 1990s. A Swiss prosecutor has since said it would be "impossible" to reopen the case against Zardari since he benefits from immunity as a head of state.

Copyright Business Recorder, 2012

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