Re: Presidential Immunity
Although I do not agree with your view point regarding CJ Iftikhar Chaudhry acting with a personal grudge against Zardari.. as the court is not hearing any criminal proceedings against the President.. The Swiss cases would have stood revived and put on hold so long as Mr Zardari is president. Instead the PPP government chose to use political arguments to controvert the judicial outcome of the NRO case and manipulate the administrative machinery of the state to flout the law.
After reading your post with your legal opinion I do stand corrected on some of the misconceptions I was carrying regarding the immunity issue:
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I do agree with you that “spirit of Islam” as argued by some legal experts is a vague term specially when the interpretation of this “spirit” varies according to personal/sectarian inclinations. For example the example of “Hazrat Omar” may not be very attractive to Shia sect who also happen to be respected part of Muslim community. Therefore the “spirit of Islam” could not be adopted for any legislation of what-so-ever nature.. not only this case. The arguments given by Aitezaz Ahsan in a case against Musharraf were illogical.. Justice Ramday’s remarks can not be taken as words of legal bible..** agreed..!!!**
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Presidential Immunity is a reality as per our constitution. Also the argument that the President has to proactively claim this immunity is not true. This is a privilege given to the President by the constitution and therefore must be respected by the courts. I stand corrected on this issue as well..!!!
http://thenews.com.pk/TodaysPrintDetail.aspx?ID=232344&Cat=9&dt=4/3/2010
Still stuck in the NRO
Babar Sattar
Saturday, April 03, 2010
The writer is a lawyer based in Islamabad.
Rule of law simply means that provisions of the law reign supreme and no one is above the law or allowed to thwart its writ. In other words, if an individual is caught with his hand in the forbidden cookie jar, the matter cannot be swept under the carpet merely because he has landed in the upper echelons of state hierarchy. Revival of the Swiss cases against Asif Zardari is about this fundamental principle. Thus the argument that the Supreme Court has made its point by striking down the NRO as bad law, and with this slap on Asif Zardari’s wrist it should back off and not get hypersensitive about effective implementation of its NRO ruing is fundamentally flawed.
It matters not that judges might have been out in the cold and Musharraf still in play if it wasn’t for the NRO. Or that the court should apply restraint out of fear of disturbing the apple cart or igniting vile ethnic sentiment in rural Sindh. These are extraneous considerations that must never weaken the court’s resolve to apply the law. The fact that the ruling regime has been dragging its feet over implementation of binding orders of the highest court of our land is proof that our journey toward rule of law has just begun.
The Zardari-led PPP could simply have given effect to the NRO ruling and be done with it. It could have ungrudgingly reopened and facilitated the cases against NRO-beneficiaries in accordance with the law. It could have exhibited a sense of urgency in replacing chairman and prosecutor general NAB, appointing additional accountability judges, and initiating proceedings against Malik Qayyum.** The Swiss cases would have stood revived and put on hold so long as Mr Zardari is president. Instead the PPP government chose to use political arguments to controvert the judicial outcome of the NRO case and manipulate the administrative machinery of the state to flout the law.**
Can the sorcery and impishness of Mr Zardari’s advisers wipe clean his past and lay his legal problems to rest for all times to come? If the attorney general informs the Supreme Court that the law minister is foiling its directions, is the court expected to roll over and move on to matters that don’t pinch the president and his minions? Implementation of the NRO ruling, reopening of the Swiss cases and the issue of immunity afforded to the president under Article 248 are connected matters that form a litmus test for rule of law in Pakistan and the role our judiciary will play in nurturing its ideals.
With the return of judges whose personal integrity is no longer in question, the court’s approach toward judicial review deserves more attention. Having recovered from the dark ages of judicial subservience to the executive, we must develop a doctrine of judicial prudence that simultaneously combines elements of activism and restraint. Effective implementation of the NRO ruling demands activism. But interpretation of the immunity clause must not appear to be inspired by a desire to produce immediate political outcomes.
The PPP government’s efforts to defeat or delay the implementation of the NRO ruling are rooted in bad faith. The ruling regime is simply abusing the public authority vested in it and its control of state machinery to protect the perceived interests of one individual. The government’s reaction to the Supreme Court is not based on any considered view of the law, but is a hangover of an era (hopefully ending now) wherein law has remained the handmaiden of the mighty. Continuing in the same stead and incognizant of winds of change, the ruling regime is pressurizing bureaucrats responsible for implementing court orders to defy the law. This effort must be defeated for it is the antithesis of rule of law.
Public officials owe allegiance to the law and not to individuals higher in the food chain. Unfortunately this isn’t an ethic firmly rooted in our tradition of public service. Confronted by a government leaving no stone unturned in defeating court orders, the apex court is rightly making it obvious to public officials that they can continue to abide by a tribal code of loyalty that trumps fidelity to the law, but only at the peril of serving jail time.
But the PPP’s blundering approach to the NRO ruling must not influence the apex court’s understanding and interpretation of presidential immunity. The meaning and import of Article 248 of the Constitution must not be clubbed with implementation of the NRO judgment. This is where the Supreme Court must apply restraint. The concept of rule of law is fundamentally procedural in nature and doesn’t have an unvarying substantive core. It requires that all citizens living in a state be subjected to even-handed application of its laws. But the judiciary cannot employ such a general principle of fairness and equity to undermine or rewrite explicit provisions of the Constitution that allow exceptions to due process.
**Article 248 is one such provision that offers at least two types of exceptions to ordinary due process. One is the limited protection embedded in Article 248(1) afforded to certain holders of public office against judicial scrutiny and affixation of personal liability for official acts. And the other is the unqualified protection afforded to the person of the president and a governor against institution or continuation of criminal proceedings during their term in office under Articles 248(2) and (3) of the Constitution. It must therefore be understood that judicial interpretation of Article 248(1) is not relevant to the scope and extent of protection afforded under Article 248(2) and (3), which is more pertinent to Mr Zardari’s case.
Article 248(1) bars the courts from calling into question the official acts of the president, the prime minister and ministers etc. Our apex court has restrictively interpreted this prohibition by holding that if an act is undertaken in bad faith or without jurisdiction, it is not an official act at all and thus devoid of the protection promised under Article 248(1). And this was the position reiterated in Justice Ramday’s ruling in Chief Justice of Pakistan vs President of Pakistan (CP No. 21 of 2007) rejecting the objection of General Musharraf’s counsel that the Supreme Court is barred from adjudicating the issue of the chief justice’s dismissal under Article 248(1) of the Constitution. **
**Articles 248(2) and (3) on the other hand unequivocally prohibit initiation or continuation of any criminal proceedings against the president during his term in office. The language barring continuation of pending proceedings makes it obvious that the intent here is not just to protect acts of the president while in office, but also his personal acts from before. Further, given that these provisions prohibit the state and its authorities from instituting or continuing proceedings rather than affording the president with a defence in case criminal proceedings are brought against him, the legal argument being made by some analysts that the president needs to proactively claim immunity seems misplaced.
It is only fair that Asif Zardari should be required to face the law like all other citizens of Pakistan. But so long as he is president this is not what our Constitution prescribes. The viewpoint that the Constitution should not afford blanket protection to the president against criminal proceedings is also weighty. But then again, under our scheme of separation of powers, it is for parliament and not the courts to write the wishes of the people into the Constitution. The constitutional reform committee has just finalized its recommendations to introduce substantive amendments to the Constitution. And yet no political party has even proposed that the scope of presidential immunity be revisited. **
The Constitution is an unfolding narrative. Like the rest of us, our judges also have a right to disagree with the wisdom of its provisions in their personal capacity. But if they allow such personal preferences to inform judicial interpretation of the Constitution, they would certainly be crossing a red line.
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P.S. @Shamraz.. It’s good to have a lawyer with deep understanding of law right here in the forum. Thanks for clearing our concepts regarding this immunity. I do appreciate your effort to explain this matter to non lawyers like us.. I do stand corrected on the issue..!!!