According to an internal brief of the ruling Pakistan People's Party (PPP), a serving head of state (President Asif Ali Zardari in this case) of any country enjoy absolute immunity against any criminal proceedings in all actions in Switzerland. The brief emailed to this correspondent by PPP Information Secretary Fauzia Wahab says that the laws of Switzerland are presented on the Swiss Foreign Affairs website www.eda.admin.ch, which anybody can access. However, the language appearing on the site is German. It said that on Dec. 2, 2004, the UN General Assembly adopted a universal convention on the jurisdictional immunities of states and their property. Switzerland will sign this convention. The brief, which seemed to have been prepared by a legal mind, said that the Supreme Court's asking the government of Pakistan to reopen cases in Swiss courts (against Zardari) has to be first analyzed internally before it is taken to the Swiss government and then the Swiss judicial system. It said that the decisions of the Supreme Court have to be enforceable in a jurisdiction where they are planning to be executed. In this case, the Swiss laws have not been considered where a serving head of state enjoys immunity during his term other than for war crimes. In order to have a situation where the immunity is to be weakened, the State of Pakistan has to expressly forego the immunity in its Constitution, which can be done by repealing Article 248 of the Constitution, the brief said and asked: does the Supreme Court have the jurisdiction to amend the Constitution? The brief said that the Swiss government after the Dec. 16 short order on the National Reconciliation Ordinance (NRO) had requested the Pakistan government to sort out the cases in its country first before they are brought to Swiss courts. It said that the Supreme Court has given instances of Ferdinand Marcos and Sani Abacha, where the states had demanded repatriation of the money. “Aren't we forgetting that the same was done when both the gentlemen were not the head of states of Philippines and Nigeria respectively?” The brief referred to the Swiss Federal Department of Foreign Affairs, immunity of holders of political office http://www.eda.admin.ch/eda/en/home/topics/intorg/chres/imdig.html and said to enable them to exercise their office unhindered, heads of state enjoy full immunity against legal proceedings abroad. Heads of government and foreign ministers can also claim immunity when travelling abroad. In certain circumstances, this also applies to other members of government in the exercise of their duties. Besides the personal immunity of officeholders, states and their property also enjoy immunity, the brief said adding that while abroad, serving heads of state enjoy absolute immunity against criminal proceedings in all actions that otherwise would have been subject to the jurisdiction of these states. The immunity of heads of state is a principle embodied in customary international law. The brief said that according to the Swiss Federal Supreme Court, immunity is weakened in the two cases: when a state expressly waives the immunity of its head of state, the head of state cannot invoke immunity; when a head of state leaves office, immunity no longer holds. A former head of state can claim immunity at most for actions undertaken in the exercise of official functions. If such a connection does not exist, the former head of state can be legally prosecuted. Referring to the decision of the Swiss Federal Supreme Court in the Marcos case (115 Ib 496, p. 500) (fr), the brief said that heads of state have no immunity in the case of war crimes. The statutes of the International Court of Justice and the International Criminal Tribunals for the former Yugoslavia and for Rwanda make provision for the fact that a defendant's official position for qualified war crimes, e.g. as head of state, does not relieve such person of criminal responsibility. The case of Augusto Pinochet, the former Chilean dictator, revived the debate over the criminal responsibility of former heads of state for qualified crimes committed while in office. General Pinochet was held not to be immune from arrest for alleged acts of torture. In contrast to criminal proceedings, the brief said, there is less agreement on the immunity of heads of state with respect to offences under civil law. According to the brief, only in the first case can the state claim jurisdictional immunity. In the second case, by contrast, the state can be summoned before a Swiss court, but only on condition that there is a connection between the civil legal relationship and Swiss territory. According to the Federal Supreme Court, the brief said, Switzerland can also impose sanctions on the foreign state. What holds for jurisdictional immunity also holds in principle for immunity from measures of constraint; measures of constraint may not be taken against assets and property intended for the performance of public functions.
