There is consensus among the top leadership of the ruling Pakistan People's Party on not apologising to the judiciary or writing a letter to Swiss authorities to revive cases of alleged money laundering against Zardari, sources in the party and its legal team told PTI.
"Neither will Prime Minister Gilani apologise nor will he assure the Supreme Court about writing a letter to the Swiss authorities when he appears in court on Thursday in the contempt of court proceedings," said a close aide to the president.
"We believe that the court would be pacified by the appearance of the prime minister. I think the prime minister's gesture will assuage the feelings of people concerned," said the aide.
However, Gilani's lawyer Aitzaz Ahsan, who will present the case in the court on Thursday, maintained that though the prime minister was not guilty of contempt of court, he should bow to pressure and ask Switzerland to reopen graft cases.
Ahsan said Zardari enjoys full immunity from criminal cases in Pakistan and abroad and the constitutional immunity had been notified. So the prime minister cannot be held guilty of contempt.
On Monday, the apex court had issued a contempt notice against the prime minister on the ground that he failed to act on its directive to reopen graft cases against Zardari and others issued over two years ago. The court also asked him to appear in person on Thursday. A lawyer who is part of the PPP's legal team, said the prime minister is expected to cite constitutional provisions for his inability to write the letter to Swiss authorities.
Since December 2009, the apex court has been pressuring the PPP-led government to reopen the graft cases after striking down the National Reconciliation Ordinance, a graft amnesty that was issued by former military ruler Pervez Musharraf.
The government has refused to act on the order, saying the president enjoys immunity under the Constitution. Gilani subsequently received the backing of parliament when it passed a pro-democracy resolution. In his speech in the National Assembly, he urged the judiciary and military to protect democracy despite differences with his government. The judiciary and military, he said, could not "pack up" or derail the democratic system.
The government's confrontation with the judiciary over reviving the corruption cases against Zardari has reached a head at a time when the PPP is also engaged in a face-off with the powerful military over an alleged memo that had sought US help to prevent a feared coup after the killing of Osama bin Laden in May last year. A Supreme Court-appointed judicial commission is conducting a probe into the memo scandal.
Talking to reporters, Ahsan, who was named as Gilani's lawyer, gave an indication of the stand likely to be adopted by the government in the apex court on Thursday while interacting with reporters. "What should we apologise for? This has to be looked into," he said.
Top lawyers have offered differing views on the issue of presidential immunity and the interpretation of constitutional provisions related to immunity. Noted legal expert S M Zafar said the president enjoys full immunity in any criminal cases that entail penalties and punishments like jail terms. "In such cases, the president cannot be called to court," he said.
Mohammad Farogh Naseem, a leading constitutional lawyer, contended that the Supreme Court had never issued a decisive ruling on the issue of the president's immunity in criminal cases under Article 248 of the Constitution. "In my view, the president does not have immunity in civil or criminal cases," Naseem said.
However, Khurram Latif Khosa, a Supreme Court lawyer who is part of the PPP's legal team, said a move to approach Swiss authorities to reopen the graft cases would open up vcomplicated constitutional issues. "The issue is the president has immunity under Article 248 and writing a letter means violating the Constitution. We fail to understand why the apex court is pressing the government to commit constitutional violation," he said.
Khosa pointed out that the Swiss Attorney General had already communicated to Pakistan that his government does not conduct the trial of those who have diplomatic or constitutional immunity.
Like other PPP leaders, Khosa said slain former premier Benazir Bhutto too had been charged in the Swiss cases and reopening those cases would amount to conducting the "trial of her grave". He said, "We will not allow this."