Pakistan President Zardari Yodels for Immunity

Last night, I stopped by the Round Robin Bar for a drink or two after work.  There I found Shaughnessy, of the State Department Pakistan Desk, drinking – well, drinking like an Irishman trying to drown his sorrows, actually.
“Things at Foggy Bottom getting to you?” I inquired as I took a seat on the bar stool next to him.
“Frankly, Collins,” he morosely replied, “I’m up [expletive] creek without a [expletive] paddle.”
“Really?” I exclaimed.  “That’s incredible for someone of your extensive diplomatic experience.  What in the world could have made you feel like that?”
“It’s that [expletive] [expletive] Hillary Clinton,” he bitterly complained.
“What about her?” I delved.
“She’s ordered a special policy position white paper on Pakistan,” he moaned, “and guess who gets to write the [expletive] thing?”
“You?” I surmised.
“None other,” he groaned.
“You’ve written plenty of special policy position white papers before haven’t you?” I sought to confirm.
“Yeah, sure,” he sighed.  “Easy stuff, like how to deal with Islamic insurgents in the Tribal Territories, what our position should be with respect to Kashmir, and how to handle the blowback from the Osama bin Laden hit.  Nothing like what I’ve got now.”
“Do circumstances allow,” I discreetly asked, “for you to elaborate on that?”
“Ah, yeah, well,” he shrugged, “none of it’s secret or anything.  It’s just a monumental pain in the [expletive], that’s all; a truly world-class can of [expletive] worms.  I assume you know who the President of Pakistan is at the moment?”
“Asif Ali Zardari,” I replied, “the widower of Prime Minister Benazir Bhutto.”
“Heard about his little tiff with the Pakistani Supreme Court?” Shaughnessy continued.
“You mean,” I presumed, “the Swiss Letter Affair?”
“Exactly,” he confirmed.  “In 1998, Swiss authorities notified Pakistan that Benazir Bhutto and her husband, Asif Ali Zardari, were using Swiss banks to hide at least ten million dollars in bribes and kickbacks.  That was just the tip of the iceberg, of course.  It eventually came out that the two of them had accumulated over a billion dollars through illegal deals with French aircraft manufacturers, eastern European heavy equipment builders, gold bullion dealers and God knows what else.  Meanwhile, Pakistan requested to be made a party in a civil suit against them so that it could get the money returned.  The Swiss granted the request and ruled against Bhutto and Zardari, ordering them to pay the money back to Pakistan.  But then Bhutto and Zardari appealed the verdict, and the case went into limbo.  Finally, in 2003, they were found guilty of money laundering in Swiss courts.  Fast forward to 2009 – Bhutto’s dead, assassinated in 2007.  Her husband is President of Pakistan.  What’s more, the George W. Bush administration had successfully pressured his predecessor, Pervez Musharraf, into passing a National Reconciliation Ordinance, which, among other things, dropped Pakistani claims to the Bhutto-Zardari money in Switzerland.  So it looks like Zardari’s got it made – he’s president of his country while also sitting on a billion dollars in Swiss bank accounts.”
“Sort of like what Mitt Romney’s shooting for,” I opined.
“Yeah, except here comes the kicker – suddenly, the Pakistani Supreme Court declares the NRO to be unconstitutional, automatically reinstating the Swiss money laundering cases.  Then it orders the prime minister, Yousuf Raza Gilani, to write a letter to the Swiss government requesting inclusion of Pakistan as a party to the legal actions and resumption of the Bhutto and Zardari investigations by Swiss authorities.  But Gilani refuses.  Next thing you know, the Supreme Court finds Gilani in contempt and, on last June nineteenth, he resigns his office.  So in retaliation, the Pakistani National Assembly elects Raja Pervez Ashraf as prime minister.  But Ashraf’s just as much of a Zardari loyalist as Gilani was, so it’s virtually certain he’s not going to write any such letter, either.  And the Supreme Court has given him two weeks to do it, after which, they say their going to throw his skanky [expletive] out of office, just like they did that [expletive] Gilani.  So there you have it, the government of Pakistan headed for a constitutional crisis of the first water concerning separation of powers between Parliament versus the Judiciary over a monumental corruption scandal involving the Executive.  Now – you tell me, Tom – what’s the diplomatic position of the United States of America supposed to be on a totally [expletive]-up situation like that?”
“Assuming,” I pointed out, “that we need one.”
“Of course we need one,” Shaughnessy insisted.  “Or, at least, Hillary Clinton says we do.”
“Well,” I observed, “the Bhutto clan was always been very much in our corner, and, I guess that goes for Zardari, too, doesn’t it?”
“Yeah, yeah,” Shaughnessy nodded, “they’re generally pro-democracy, pro-Western, pro-United States and all that good stuff.”
“Enough,” I wondered, “for us to overlook them stealing a billion dollars from a country like Pakistan, where the average person still lives in the middle ages, if not, in fact, the stone age itself?”
“Oh come on, Tom,” he objected.  “It’s not like any of the money Bhutto and Zardari stole came from Pakistani taxpayers!  Nobody even pays taxes in Pakistan!  The fact is, the United States gave Pakistan the money to buy military aircraft from the French, to get tractors from the Poles, to institute a Pakistani government monopoly on bullion in order to restrain gold smuggling, and to do all of those other things Zardari raked the vigorish off of for all those years.  Bhutto and Zardari stole that billion dollars from America, not the Pakistani people.  And besides, no matter who we give money to in Pakistan, no matter what it’s supposed to be for, some of it usually gets stolen – [expletive], sometimes nearly all of it gets stolen!  But even though I know that’s true – even though everybody in the State Department knows it’s true, for Christ’s sake – there’s no way I can say that in a diplomatic policy white paper.” 
“Understood,” I concluded.  ”When you write a diplomatic policy white paper, you’ve got to pretend that we care about a billion dollars of our own money skimmed off Pakistani government deals, even if the people who stole it agree with our philosophy.”
“Right,” Shaughnessy concurred.  “We can’t afford to create the perception that Americans are a bunch of rich simpletons from whom anybody can bilk outrageous amounts of money by merely pretending to share our values.”
“Or actually sharing them,” I added.
“Certainly,” he confidently vouched.  “Sincerity counts, no doubt about it, but we can’t create the impression that all it takes to obtain a license to steal is a heartfelt affinity for democracy, capitalism, truth, justice and the American way.”
“Too bad,” I noted, “that the president of Pakistan isn’t a ruthless, bloodthirsty Taliban sympathizer who wants to make the Federal Shariat Court the supreme law of the land, exterminate all the infidels in death camps and amend the constitution to make unanesthetized female circumcision mandatory upon penalty of death by public stoning.  That would make it much easier for the State Department to deplore him for stealing a billion dollars.”
“No such luck,” Shaughnessy ruefully groused.  “We’re stuck with this Zardari guy instead.  How the [expletive] am I supposed to deplore somebody who’s spent more time in jail than Mahatma Gandhi?”
“Both Al Capone and Mahatma Gandhi spent a lot of time in jail,” I observed. 
“Yeah, yeah,” Shaughnessy conceded, “but you know what I mean – there are claims he was tortured and so forth, plus plenty of accusations that at least some of the charges he was imprisoned on were politically motivated.”
“And plenty of statements in the world press,” I reminded him, “that, next to the rules of cricket, the most universally known thing in Pakistan is how corrupt Asif Ali Zardari is.”
“That just puts him,” Shaughnessy retorted, “in the same class as Fulgencio Batista, Ngo Dinh Diem, Mohammad Reza Pahlavi and Hosni Mubarak; and those are the kind of guys America has always stood behind.”
“But on the other hand,” I suggested, “maybe we don’t want to back another loser this time.”
“True,” he admitted, “that would be a good thing to avoid.  And I think you’ve hit the nail on the head there, Tom – the problem is, if our policy isn’t going to end up backing a loser, we have to be able to figure out who the loser is going to be!  Is Zardari going to be the loser, or is the Supreme Court going to be the loser?”
“Article 248 of the Pakistani Constitution,” I recalled, “states that ‘No criminal proceedings whatsoever shall be instituted or continued against the President during his term of office.’  That same Article, however, permits civil proceedings against the President provided that sixty days notice is given.  So, superficially at least, it would appear that the Prime Minister must at least write to the Swiss government and request reopening of any civil matters previously closed by passage of the NRO.  By the same token, apparently, it also appears that criminal proceedings against Zardari would have to wait until after he leaves office.  Unfortunately for those who would like to see Zardari prosecuted for those crimes, though, the fifteen year statute of limitations will expire this year, well before his term of office ends in 2013, furthermore…”
“Unless the Pakistanis amend their Constitution,” Shaughnessy interjected.  “Like they did in 2010 to clip Zardari’s wings.”
“True,” I concurred, “the Presidency of Pakistan isn’t what it used to be.  He’s more or less a figurehead position now.  But as long as the Prime Minister backs up Zardari, and the Pakistanis don’t amend their constitution just so they can get at Zardari, that doesn’t matter much.  Right now, it looks like Parliament and the Supreme Court are fighting about who has the constitutional right to determine immunity from legal actions.”
“Pretty much,” Shaughnessy agreed.
“Parliament will argue its ultimate supremacy,” I predicted, “based on the interpretation of conflicts between Parliament and the Crown during the Commonwealth era.  The Supreme Court will counter with an argument that it has the final word in all matters regarding the interpretation of the Constitution, and they will be correct, since the supremacy of Parliament is a concept which evolved in England, which is still a monarchy and in fact has no constitution.  So legally, the Supreme Court will win.”
“So,” Shaughnessy reasoned, “that means I can stay here in Washington and avoid being shipped off to the US Embassy in Islamabad if I slant my white paper to favor US foreign policies for Pakistan based on the assumption that the Supreme Court will prevail!”
“No,” I cautioned, “you should do exactly the opposite.”
“Why?” Shaughnessy implored, thoroughly puzzled.
“Because,” I explained, “the Supreme Court has already found one Prime Minister in contempt.  He was gracious enough to resign without a fight.  But two?  What then?  The ruling party would simply appoint a third, who will also refuse to write the letter, and forcing yet another finding of contempt, and so forth.  Remember what happened when the US Supreme Court ruled in favor of the Cherokee Tribes in Worcester vs. Georgia?”
“Um, no,” he admitted, “can’t say as I do.”
“President Andrew Jackson,” I related, “proclaimed, ‘The Supreme Court have made their decision; now let them enforce it,’ or words to that effect.  Then Jackson went about removing the Cherokee from their land anyway.  And count on it, if the Pakistani Supreme Court keeps finding Prime Ministers in contempt because they won’t write a letter to Switzerland, that’s exactly the attitude the Pakistani Parliament will adopt.  Think about it – does the United States of America want the Pakistani Supreme Court running the country?”
“Hmm,” Shaughnessy ruminated as he stared down into his drink, “I guess you’re right, Tom.  It’s much better to deal with one thieving politician than with seventeen raving westernized Oriental jurists.”