Faroog Naseem, one of the most brilliant lawyer of Pakistan, thinks the very idea of Presidential immunity is against the constitution of Pakistan. His argument is that no law can be legislated in by the parliament of Pakistan against the principles of Islam. The very basis of Islamic judicial system is based on legal equality for all and does not give any immunity to the rulers of the country..
Our PPP led govt. thinks the president has immunity from the legal process.. and they believe this immunity is automatically assumed without claiming the concession from the courts.
There are different precedents adopted in different parts of the world where immunity was denied or granted by the court of law in different countries. But it must be noted even in the instances where immunity was granted, the issue of immunity was always claimed and argued before the courts… and final authority to extend or deny the immunity was always the judiciary. Never in the history of justice immunity was taken for granted by the executive as is the case with our present govt. who are defying court verdicts on the assumption of immunity without claiming it.
Revisiting the concept of presidential immunity
Sabir Shah
Monday, January 16, 2012
LAHORE: Courts in US, Italy and Liberia have barred their respective rulers from invoking immunity law but Chile and France granted this privilege to their presidents.
It goes without saying that despite the silence of the US Constitution in this context, the American legal history provides at least two oft-quoted examples where Presidents Richard Nixon and Bill Clinton were denied Presidential Immunity while in office.
On August 17, 1998, Clinton became the first sitting US President to testify before a grand jury investigating his conduct in the Monica Lewinsky scandal.
In other words, all his efforts to invoke executive privilege to his benefit were thwarted by the court. He was impeached in this case on December 19, 1998 by the House of Representatives and later acquitted by the Senate.
Clinton thus became the first elected US president and the second to be impeached, following Andrew Johnson in 1868.
In Monica Lewinsky case, he was found guilty by Justice Webber Wright in contempt for giving misleading and evasive answers.
The sitting president was consequently fined $90,686 in July 1998 for the contempt violation by the court.
**Earlier, Clinton was involved in another controversy with a woman called Paula Corbin Jones. In this sexual harassment case, the sitting president had prayed before the court that he be granted immunity from this civil lawsuit, where his actions prior to his taking office as president were challenged.
Without a single dissenting note coming from any of the judges hearing this case on May 27, 1997, the US court ruled in favour of Paula Jones (a state clerical employee working at the registration desk for a conference at the Excelsior Hotel in Little Rock) by finding that the president did not enjoy immunity from civil lawsuits relating to personal conduct that was not part of his official duties. **
The judges had ruled that although a President could not be sued for actions related to his official duties, he was subject to the same laws regulating purely private behaviour as the general population.
The verdict in the landmark case of Clinton v. Jones (1997) had thus set up a precedent that a sitting US President was not immune from prosecution for acts committed before taking office.
As far as brief details of this case are concerned, a woman Paula Jones had accused Clinton of making sexual advances towards her in 1991. The case was filed in May 1994 and Bill Clinton was elected President of the United States in 1992.
The court had dismissed the Paula Jones harassment lawsuit (before trial) on grounds that Jones had failed to demonstrate any damages, but not before Clinton had entered into an out-of-court settlement by agreeing to pay $850,000 to the plaintiff woman.
Revisiting the case of President Richard Nixon, one finds that the US Supreme Court had voted unanimously (without a dissenting voice) to limit his powers during the Watergate scandal probe.
This case is considered a crucial precedent in restricting the power of any US president by the court, surprising many legal experts in the world who were strong believers of the doctrine of immunity that had its roots in the law of feudal England of 13th century and was based on the tenet that the king could do no wrong.
In the 1974 United States versus Nixon case, involving the demand by Watergate Special Prosecutor that President Nixon should produce the audiotapes of conversations he and his colleagues had held in the Oval Office in connection with criminal charges brought up against them, the sitting president had invoked his privilege and refused to produce any records.
But President Nixon was denied this right by the court and was eventually ordered to produce the illegally obtained tapes.
Nixon has been the only US president to resign from office in August 1974 before the House impeachment vote.
It was the same Richard Nixon, who had won the court’s favour in 1982, when he was no longer the president.
In the Nixon versus Fitzgerald Case of 1982, the US Supreme Court had granted absolute immunity to Nixon from a liability predicated on one of his official acts while he was serving as head of state.
In this particular case, a weapons analyst called Ernest Fitzgerald had been fired by the US Air Force after he had disclosed certain irregularities within the Defence Department to the Congress.
(References: The Washington Post and The New York Times etc)
Fitzgerald later sued Nixon for wrongful retaliatory termination. The court emphasized the importance of the duties of the president and noted that the diversion of the president’s energies over concern for private lawsuits would raise unique risks to the effective functioning of government.
The US court had also observed that the president, in view of the visibility of the office, would be an easy target for civil lawsuits, observing that ensuing personal vulnerability and distraction would prove harmful to the nation.
Similarly, on January 13, 2011, Italy’s constitutional court had gone on to strike down parts of a law supported by (then) Prime Minister Silvio Berlusconi that would have given him and his ministers temporary immunity from criminal charges while they were in office. (Reference: US Library of Congress website, February 11, 2011 edition)
As passed by the Italian Senate in March 2010, Law No. 51 of April 7, 2010 had permitted cabinet officials to postpone criminal proceedings against them that were underway or due to be started within 18 months of the law’s date of enactment, if the charges constituted a “‘legitimate impediment’ to the performance of their duties.”
Among other matters, the court had ruled that the afore-cited law violated Article 3 of the Italian Constitution, which stipulates that “all citizens have equal social status and are equal before the law” and Article 138 by allowing an “unreasonable disparity between the rights of defence and the needs of jurisdiction.”
(Reference: Constitution of the Italian Republic, Senate of Italy website)
It also held that it was the court’s authority to make the assessment of how severely criminal charges might disrupt state business. By a large majority of 12-3, the Court had held that the law should be amended to permit a postponement of the charges of up to six months, rather than 18.
The Italian Constitutional Court’s above-mentioned decision marked the third time when the judges had actually found similar immunity laws unconstitutional. The previous rulings were issued in January 2004 and on October 7, 2009.
(Reference: BBC report of October 8, 2009)
On October 7, 2009, the arbiters had voted 9-6 to in favour of lifting Berlusconi’s immunity.
By October 2009, Berlusconi had managed to win three of the five elections he had contested.
Courtesy the immunity law, he had also succeeded in evading two cases against him, one in connection with a bribe that he had paid to a British lawyer and another with alleged fraud related to the purchase of TV rights by his media company.
In the wake of the court’s decision, with the trials against the embattled Prime Minister set to continue, Berlusconi again pushed a measure through parliament that conferred temporary immunity upon Italy’s highest officeholders.
It is pertinent to note that the latest version of the Italian immunity law had been approved by the chamber of deputies in February 2010, a month after hundreds of Italian judges had staged a walkout to protest another law that imposed strict time limits on trial and appeal procedures.
The two laws have been criticized as “tailored for Berlusconi’s benefit.”
Subsequently, in April 2010, prosecutors tried to indict Premier Berlusconi on charges of embezzlement, alleged payment for sex with an underage nightclub dancer and alleged abuse of authority in attempting to cover up the relationship.
According to the Italian law, a maximum combined term of 15 years in prison could be imposed upon conviction for the two offences of abuse of office and sex with an underage prostitute.
Berlusconi, who was facing growing criticism related to his personal scandals, had opted to resign as Prime Minister on November 16, 2011.
Various reputed international media outlets also reported that his resignation came amid growing fiscal problems related to the European debt crisis.
The former Italian premier had once publicly confessed in his own words that while 789 prosecutors and magistrates had taken an interest in his cases from 1994 to 2006, police had visited him 577 times and that he had attended over 2,500 court hearings, apart from paying 174 million euros to his lawyers.
(Reference: Reuters report of July 22, 2008)
