Re: Presidential immunity ‘discriminatory’ but legal: Aitzaz
LHC decided immunity issue in dual office case****
[Usman Manzoor](http://www.paklinks.com/gs/TodaysPrintWriterName.aspx?ID=13&URL=Usman Manzoor)
Tuesday, January 24, 2012
The issue of presidential immunity recently came under discussion in the Lahore High Court (LHC) in the Dual Office Case of President Asif Ali Zardari, and **the high court had declared that the acts done by the president in his personal capacity do not come under the immunity described in Article 248 of the Constitution.
Legal minds say that when cases were registered against President Zardari, he was not the president of Pakistan at that time and were perhaps registered in acts done by him in his personal capacity **but it was up to the courts to decide whether he enjoyed immunity or not, but the president had to claim the immunity.
In the Dual Office Case of President Zardari, the Lahore High Court, reported in PLD-2011-382, declared that the acts done by the president in personal capacity were not covered under the immunity.
The judgment said: “Consequently, whilst assessing the relief that may be granted in this case, it may be observed that this is clearly not a case for disqualification of the president. Equally, it is not a case for a prohibitory order as the president is engaging in an activity that is not barred under law. This is a case where the president is exposing himself and his lofty office to likely controversy that can erode the public trust and respect necessary for such office to represent the unity of the Republic. Also in this regard, the premises of the Presidency that enjoy the highest sanctity in the public eye is being subjected to use of partisan political interest. That can lower its esteem and sanctity. These actions are being taken not in the discharge of the functions and duties of the President of Pakistan but on account of a personal and private association of the President with his political party. These actions therefore do not enjoy immunity from the judicial process and call for judicial intervention to enforce the Constitution. “It is also relevant that the objection now being adjudicated by the court has been raised for the first time for judicial consideration in the present factual matrix.”
Senior Advocate Ikram Chaudhry said that President Zardari was not the president when the cases were registered against him, and he was a common man at that time, but it was up to the court either to grant immunity to him or not. He said that the issue was of bringing all the cases to the position of October 5, 2007, because the court has declared the NRO void ab initio. “Now if the president seeks immunity, then the court will decide, but the LHC has already said that there is no immunity available to the President for the things done in personal capacity,” the lawyer said.
Azhar Siddique, Advocate Supreme Court, while endorsing Ikram Chaudhry, said that the cases registered against President Zardari and the alleged corruption done thereof was in his personal capacity and not in discharge of his functions, therefore, he has no immunity over these cases.
He said that in foreign countries as well, no such immunity is available where financial crimes are committed through contracts signed by state or their agencies. “Foreign Sovereignty Immunity Act 1976 prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies or with regard to properties taken by foreign sovereign in violation of international lhttp://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=11966&Cat=13aw.”