Swiss prosecutor throws ball back to Pakistan


Says if Pakistan lifts immunity, he will proceed against Zardari

By Ahmad Noorani

ISLAMABAD: The Supreme Court will again have to decide whether President Asif Ali Zardari enjoys immunity in Switzerland as the Swiss prosecutor general has clearly thrown the ball back to Pakistan by stating that his country cannot prosecute the Pakistani president “because the Pakistan Constitution grants him immunity as head of state.”

The Swiss official statement, which came after NAB informed the Supreme Court that two letters had been sent to reopen the Swiss cases, was categorical and clear as it said, “Only the Pakistani authorities can lift the immunity to their head of state.”

When the issue of immunity comes to the Supreme Court and if the SC decides that immunity is not available, it can also direct the government to again write to the Swiss authorities that in Pakistan the immunity has been lifted and they could go ahead with the money laundering cases, a legal expert said.

The following statement was made by Swiss Prosecutor Daniel Zappelli, who told the Associated Press on Wednesday in Geneva: “Zardari cannot be prosecuted in Switzerland because Pakistan’s constitution grants him immunity as a head of state.”

Zappelli said that he had yet to receive the Pakistani request. But he said he could not reopen the cases against Zardari, who was elected president in 2008 after years of battling corruption allegations, because he enjoys absolute immunity as a head of state.

“We could go further only if the competent authorities in Pakistan decide to lift the immunity of the head of state, which I do not know whether it is possible according to their constitution,

said Zappelli, speaking in English. If not, we can’t. Absolutely not.”

The Swiss government told The News a few weeks ago that if requested by Pakistan government, the money laundering cases against President Asif Ali Zardari could be reopened and if found guilty the money could be frozen and returned to Pakistan.

The official Swiss statement came through its embassy in London, which provided important information about application of its money laundering laws, especially with relevance to the millions of dollars belonging to President Asif Ali Zardari in Swiss banks.

The Swiss embassy in London was sent a number of questions on Dec 23, 2009 to get the official position of the Swiss government concerning these critical issues of importance in Pakistan.

The questions were sent through a UK lawyer Amjad Malik as all such questions had to be routed through the Foreign Office, if sent from Pakistan. From London, the UK lawyer sent the questions to the Embassy and Salome Meyer, First Secretary (Political and legal affairs), Embassy of Switzerland, responded to the questions. His email is: salome.meyer@eda.admin.ch

Asked whether a head of state enjoyed immunity if a case was lying pending in a Swiss court, especially in relation to money laundering, the official Swiss response was: “Acting heads of state enjoy, according to international law, absolute immunity. The immunity can only be lifted by the state concerned. If the state concerned lifts the immunity of a person, there is no ground for Swiss authorities to apply immunity.”

Q: Will the case be revived against President Zardari if Government of Pakistan requests, and if they do not, will the (Pakistani) court judgment have an effect?

A: Switzerland is ready to respond to any new request for mutual legal assistance by the Pakistani authorities. Without a new international request, an internal judgment of a foreign country cannot have automatic effects in another country.

Q: What will be the Swiss action on monies in Swiss bank purportedly belonging to Pakistani Government, will it be frozen and returned to Pakistan, if the judgment goes against the accused?

A: In the framework of mutual legal assistance, if the conditions are fulfilled, the Swiss authorities can freeze illegal assets in Switzerland and return them to their country of origin. Whether this will be possible or not in a given case, has to be determined by the competent Swiss authorities on the basis of the request for mutual legal assistance.

Q: Does the Swiss Government independently take action against those who launder money irrespective of their status as they may have broken Swiss law on money laundering anyway?

A: The Swiss legislation against money laundering is very strict and allows taking all necessary measures to prevent or punish money laundering. Of course, the status of a person concerned will have to be considered (see answer to Q-1 involving immunity).

Q: Please, quote any helpful legal provisions relevant to these questions, so that article quotes the right legal provisions?

In answer to this question the Swiss embassy referred to the Swiss Federal Act on international mutual legal assistance in criminal matters and the Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector.

According to Ahmar Bilal Sufi, an international law expert, NAB has sent letters to two different offices in Switzerland, one to the federal office, which is situated in Bern (Swiss Capital) and the other will land in the office of the Swiss attorney general in Geneva.

According to Sufi Swiss attorneys will consider the request of the NAB and issues relating to reopening of cases, which were once closed under Swiss laws. Sufi said that proceedings of the cases and establishment of the fact that money was laundered or not will be two different things and if it is established that money was laundered the accounts of the companies could be confiscated and money could be returned.

Senior lawyer in High Court of London, Amjad Malik while speaking to The News from Manchester said that the letter written in accordance with Supreme Court of Pakistan judgment has strong legal basis and if Swiss authorities consider the evidence available regarding money laundering, the laundered money will be confiscated before any question of immunity or start of any judicial or criminal proceedings arises.

He said that President Asif Ali Zardari would have to claim immunity in Swiss cases and if he did so a Pandora’s box would open and the whole international media and legal experts would look for an answer to the question: What could be done when a head of a state is found guilty of such heinous corruption.

According to UK Supreme Court senior lawyer, the Government of Pakistan will only have to send the request for revival and if this is proved that the money was laundered, without going into any trial or prosecution, the whole looted money will be returned to Pakistan and question of sovereign immunity will not arise at any stage.

Malik said: “Any further action like trial, sentence or arrest are the things of a later stage and could be carried out after the question of immunity to the president is decided.

Reuters adds: Meanwhile, Geneva’s public prosecutor said on Wednesday Pakistan has not yet asked Swiss authorities to reopen a corruption case against President Asif Ali Zardari.

In any case, Zardari enjoys immunity from prosecution as a head of state, Prosecutor-General Daniel Zappelli told Reuters.

“I have not received any request,” Zappelli said, commenting on news from Islamabad that Pakistan’s anti-corruption agency would ask the Swiss to revive the case.

Zardari and his wife, assassinated former Prime Minister Benazir Bhutto, were convicted by a Geneva court in 2003 of laundering $13 million linked to kickbacks, but that verdict was overturned on appeal and Swiss judicial authorities said in August 2008 they had closed the file on the case.

Zappelli said that Pakistan’s embassy in Switzerland had officially notified him in June 2008 of a decision by Pakistan’s prosecutor-general in April of that year to withdraw proceedings against Zardari.

He said that Pakistan’s prosecutor-general had decided that the contracts at the heart of the kickbacks case had been awarded in good faith. “In Pakistan they decided that no crime had been committed,” he said.

Zappelli also noted that Zardari and Bhutto were sentenced by the High Court in Lahore in 1999, but in 2001 Pakistan’s Supreme Court canceled this verdict and sent it back to Lahore for a new decision. However, there had not been a new trial in the nine years since then.

A trial for money laundering in Switzerland would have to be based on the proceedings of the criminal activity, but that would require proof that a crime had been committed, he said. In any case under international law Zardari enjoyed immunity from prosecution as a head of state – unless that state itself lifts the immunity.

“Immunity is the key question,” Zappelli said. “We can’t prosecute Mr Zardari while he has immunity unless Pakistan lifts that immunity. And if he doesn’t have immunity, why don’t they try him in Pakistan.”

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