Presidential Immunity

Society Pakistan & World Affairs
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Re: Presidential Immunity

In my opinion Jiyalas, some journalists, some lawyers, as well as some past judges are creating misunderstanding and confusion about immunity constitution gives to President and Governors against court proceedings, intentionally or unintentionally. If we read constitution, it is clear that immunity to President is only on criminal proceedings and not civil proceedings.

There is no doubt that courts are showing bias against PPP in their judgement as well as taking of cases. But they are not going against constitutional law when asking government to write letter to Swiss courts.

[That is different matter that courts are showing obvious bias in pursuing cases and giving two different types of judgement showing leniency, cajoling and overlooking PMLN criminals while unnecessarily pursuing and victimising PPP criminals. Many in provinces are taking judges behaviour as show of ‘subayet’ by judges. Such behaviour is also giving very wrong perception in provinces and creating bad feelings towards court judges as well as N Punjab]

Anyhow, before going into constitution, let see the difference between civil cases and criminal cases, as that is very important in understand constitutional immunity to certain office bearers:

Civil cases are cases between two parties (individuals, company or state) and determined on basis of ‘solid, possible, or probable proves’. That is, party can lose case on possibility or probability of proofs as ‘reasonability of evidences’ is sufficient proof. Convictions given is are normally in form of fines (or monitory penalties). Very rarely people go to prison in civil cases (though they could).

Criminal cases are between ‘State’ and ‘party (individuals, company, or whatever). Cases conclusion needs solid proofs, that is, proofs without any ‘reasonable doubt’. Convictions are given against party if proof or they get exonerated. Result could be ‘prison’ or ‘prison plus fine’.

So, both cases are different in nature, conviction as well as ‘depth of proof’. Criminal cases need harder proof with respect to civil cases and punishments are harsher too. Due to nature of proof, a person for same proceedings could lose civil case but could get exonerated from criminal case.

Now we come to constitution (green is part of constitution and rest is mine):
](Chapter 4: "General." of Part XII: "Miscellaneous")Chapter 4: "General." of Part XII: "Miscellaneous"
**
248.** Protection to President, Governor, Minister, etc.
**
(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.**

[As can be seen from clause 248(1) … Government office bearers are not answerable to any court (including Supreme Court) for exercising their powers or for results (performance) due to exercising their powers.

‘Provided’ … (some conditions attached) … when exercising their powers if above individuals construe, restrict or infringe right of any person then that person can take federation or province to court.]

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.

[Close 248(2) gives immunity to President and Governors from criminal proceedings while they are in office … that does not mean civil proceedings cannot be started against them (it is very important … that is why one should know the difference between civil and criminal proceedings)].

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.

[President and Governors cannot be arrested or imprisonment while in office.This is much different than starting of cases, especially civil cases]

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims.

[From above, if civil proceedings get started against President or Governor in office due to theirs’ personal problem (corruption, fraud, commissions, negligence, misuse power for personal benefits, etc) then at least 60 days notice is required.

Note: If cause of civil case is President’s action using his power as part of office duty then case would be against state, not President, but if President’s action is for personal benefit than case would be against President]

So, we can see that immunity to President is not universal but restrictive. In Zardari case and regarding writing letter to Switzerland to start corruption case, it is fine as the case is neither criminal case nor it is to do with Zardari action to fulfil his state duties. Hence Zardari is not immune from initiating such cases]

[Note: Cases of corruption, commissions, financial fraud, grabbing plots illegally, selling permits illegally, looting and plundering National wealth, etc … are civil cases in Pakistani law , though could be criminal case in some countries].

Further comment: 248 (2) and 248 (3) is part of Pakistani constitution but in my opinion these clauses have to get struck out (rather, clause 248 needs re-written). Reason is simple, that is, these clauses in theory gives President and Governors right to kidnap, rape, murder, or get involved in any criminal activities without getting persecuted as criminal and punished while in office (may face civil cases but no criminal cases, hence no punishment other than fines), something no Islamic or civilised society could allow.

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Re: Presidential Immunity

bhai aap to bohat mazaqye nikley… :omg:

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Re: Presidential Immunity

I have repeated your words.

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Re: Presidential Immunity

My criticism of Zardari and the nalaiqi of this government stands though...

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Re: Presidential Immunity

Depends

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Re: Presidential Immunity

I want to congratulate all Pakistanis....seriously. Instead of settling such issued by the gun, coups and underhanded methods, it is heartening to see leaders (as well as public as in this this forum) hashing things out referring to consitiution, law, precedence, propriety etc.

Regardless of whether Gilani stays or not, this is a very important step in maturity of Pakistan and I hope, wish and pray that the matters get settled amicably and with justice without bloodshed

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Re: Presidential Immunity

Nobody will destroy this party other than PPP itself. This govt had lot of support from every quarter, PMLN being in the opposition also gave it time to implement what ever they wanted and were called the B team of the govt (which caused them a lot of political damage). But sadly they couldnt or did not want to do anything in return.

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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:

  1. 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..!!!**

  2. 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..!!!

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.

Email: [email protected]

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..!!!

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Re: Presidential Immunity

Thanks yazdi. Btw, if the CJ has no grudge against Zardari than why isn't he pursing more important cases? You know, like missing persons' case that made him famous? Or how about NS's family paying 5000 rupees in taxes when they control one of the largest business empire in the country? Or how about intelligence agencies abducting and (in may cases) killing citizens?

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And not to forget the Asghar Khan petition against ISI funding of Nawaz Sharif party..

Any way judicial activism by the present judiciary is a good sign for the country. Until now they haven't done anything majorly wrong with their decisions (and I hope it remains like that). It's just a matter of time that the present judiciary will be under pressure to hear/decide other cases which can affect military/opposition. I am sure the next victims of the judiciary will not be the PPP led present government who are not angels either.

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While i do think judiciary is not behaving like the way it should, too much meddling into politics, but I won't mind them striking down the blanket immunity. Parliament is not going to do it.