Above the Constitution?

Published: February 22, 2012

The writer is executive director of the Centre for Research and Security Studies

It is a story of stark contrasts; German President Christian Wulff resigned on February 17, following disclosures over his personal financial dealings and acceptance of financial favours from political backers. Here in Pakistan, in a brazen display of authority, the prime minister — indicted for contempt of court — waves the victory sign when he drives into the Supreme Court. In Germany, the president stepped down after prosecutors in his native state of Lower Saxony requested that the Bundestag — the lower house — strip Mr Wulff of his immunity from prosecution, saying that they had “factual indications” of long-suspected improprieties. While serving as governor of the state of Lower Saxony, Wulff allegedly accepted a large low interest loan from the wife of a wealthy businessman in 2008, to finance the purchase of a home for his family. Even though Mr Wulff shrugged off allegations of misconduct by insisting he had behaved correctly, yet he chose to leave the ceremonial but prestigious office to fight allegations. Here, in Pakistan, the premier and his cohorts interpret the peoples’ mandate as a crown that supersedes law. In Germany, the attorneys have basically asked for the president’s trial, while in Pakistan an illustrious barrister has somersaulted from his own position to defend a premier — by implication the president — and thus flout the rule of law. For the sake of the business called politics and a seat in the Senate, the barrister has turned himself into a laughing stock by flip-flopping on his own opinion regarding the letter to the Swiss courts. Until he opted to defend Prime Minister Gilani, Aitzaz Ahsan had repeatedly advised the government to act upon the Supreme Court instructions and write to the Swiss authorities. But now, he has turned over and is now arguing against his argument.

Back in 1986, when Uwe Barschel, the chief minister of Schleswig-Holstein, a German state, committed suicide after official records gave his claim of innocence a lie, he could not stand the public scrutiny anymore and took his own life in a Geneva Hotel, leaving behind five children.

Willy Brandt, the great German statesman, practically wrote his political nemesis, when he apparently appointed a young Greek-origin lady as the spokesperson of his Social Democratic Party in the late 1980s. The charge against him was that he made the appointment without consulting the party hierarchy. Here in Pakistan, charges of corruption, or allegations of abuse of authority carry no legal or moral value; political parties are run as personal fiefdoms, with brothers and sisters and scions claiming important spots in parliament and in the party. Here, even the facts such as the spurious graduation degrees of dozens of MPs matter little when it comes to morality or principles. Even revelations that a former minister does not hold a doctorate degree are hardly enough for such individuals to draw moral consequences. Or take the case of a political opportunist like Sheikh Rasheed who finds nothing wrong in rubbing shoulders with leaders of banned outfits. For all of them, the guiding principle revolves around political survival — regardless of its legal or moral cost.

Is the law and its respect confined only to those who empower a certain class of people to legislate for them? And does the parliamentary membership place MPs, and particularly the holders of top offices, above the Constitution? The prime-ministerial reaction to the Supreme Court rulings clearly suggests he considers himself answerable to that parliament and not a court of law, a parliament packed with a lot of people whose legal wisdom and intellect may be suspect if put to scrutiny. Essentially, everybody must be equal before the law. This is what the Supreme Court is trying to achieve and this is what we all must stand for; equality before the law of the land. Neither exemptions nor immunity for anybody, whosoever. No misconduct or violation of law must go unchallenged and unpunished.

Published in The Express Tribune, February 23rd, 2012.

Reader Comments (31)

  • Mirza
    Feb 22, 2012 - 11:50PM

    You wrote “In Germany, the president stepped down after prosecutors in his native state of Lower Saxony requested that the Bundestag — the lower house — strip Mr Wulff of his immunity from prosecution”. This is the main point in all your Op Ed.
    It is not the court but the parliament only which can impeach the head of the state, take the immunity away or change the constitution. Not the self appointed career govt servants. Pakistani constitution like German and International law gives the president immunity against prosecution. Why would the PCO SC and its supporters not ask Sharif to go to the parliament and do what your above example illustrate? However, unelected people have no respect for people’s mandate and the law of the land. In Pakistan where on TV are fake Ph. D yet followed by millions, you talk about the politicians being fake Ph. D! A military dictator after mutilating the constitution made graduation a condition for NA/Senate, which is not even in the US. Even though the SC has restored the constitution, you still want to implement the illegal conditions as if Mush is still in power? Recommend

  • Seema Shaikh
    Feb 23, 2012 - 12:25AM

    @Mirza: well said.

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  • Shock Horror
    Feb 23, 2012 - 12:54AM

    @Imtiaz
    You very conveniently forget that in Pakistan it is the army and ISI, even their minor minions, who are above the constitution. Until Pakistan can sort this out, any discussion of other individuals, no matter how important, is meaningless.

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  • Saleem
    Feb 23, 2012 - 2:04AM

    It is joke comparing Pakistan with a Western European Power

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  • x
    Feb 23, 2012 - 2:09AM

    Spot on Mr Gul

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  • Mansoor
    Feb 23, 2012 - 2:13AM

    In Germany the judges have impeccable reputation and have not victimised the very same President and Prime Minister for eleven and five years, they have also not broken their oaths on Quran or Constitution and taken oaths on PCOs to save their jobs.
    Understand the difference!Recommend

  • John B
    Feb 23, 2012 - 2:15AM

    No one is above the constitution, but does the PAK constitution inspire the people of PAK and serve all, and at all times?

    All PAK institutions, including the judiciary, lack credibility which is earned over the years and in PAK’s brief history no one cared for it.

    The same judiciary was part of the system in annulling the PAK constitution due to “doctrine of necessity”. Now where is the doctrine of necessity when the civilian government wanted it.

    PAK has managed to enact laws and constitution and has successfully isolated the people from the ruling elites. The degree requirement is the pinnacle of idiocy, and establishes the supreme class of “Brahmins” who know it all in their athenian wisdom.

    Resignation on moral grounds? Who will start first, the SC, Bar association, mullahs, chief ministers, army chief, PM, or President or the civil servants who faithfully served the unethical institutions?

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  • Falcon
    Feb 23, 2012 - 2:15AM

    @Mirza:
    In my humble opinion, regardless of the technicalities of how it should be done, it is to be first agreed upon that respect is a 2-way street and democracy is leadership based on moral legitimacy. So, if you are losing respect of people because of legal proceedings against you, you better do yourself and the honorable democracy a favor by stepping down rather than being obstinate about it. Otherwise, this is nothing but elitist autocracy. Secondly, if parliament can single-handedly derail the system then who ensures justice in a society against the powerful?

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  • soomro19
    Feb 23, 2012 - 2:54AM

    There is something called self-respect and decency. Did the German President say that he will fight the case and then wave the V sign as he walks in the Supreme Court. Did he come to the Court in a grand entrance with a huge crowd chanting slogans in his favour. Did he say that he is willing to accept political martyrdom than step down?? No, he realised the guilt and did the right thing.. QUIT.. I hope some day this sense will be knocked in our leaders

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  • White Russian
    Feb 23, 2012 - 3:32AM

    Another point of contrast: how many years Herr Wulf spent in jail (without being convicted for anyhing) before becoming president? answer: none.
    Yet another point: How many judges of Constitutional Court in Karlsruhe, or editors of Die Welt, or Der Spiegel, or anchors of ZDF, or RtL, or pro seben channels claimed against the constituton that there is no presidential immunity? answer: none.
    Yet another piece: How many German Chancellors were hanged or packed home by military, since the end of WW||? answer: none.
    Another one: Adolf Hitler, his wife Eva Brown, and some of his generals could not bear the shame of defeat. How many Pakistani generals blew themselves up in 1971 or on 3rd may last year ? answer: none.
    And the final one: In pakistan, Difa-e-Pakistan council leaders come out in open and challenge the Pakistani constitution with impunity. How many neo-nazis in Germany are allowed to do this? answer: none.Recommend

  • Feb 23, 2012 - 4:29AM

    All I want to underline is that once suspicion arises, or allegations fly in, honourable people do step down to face them, rather than making a mockery of the constitution or the law. As far the constitution of the Islamic republic of Pakistan, there are many things that are tailored to suit the ruling elite. These laws or immunities are elitest in nature – reminding of the medieval age kings and queens who placed themselves above everything else. Law must be equal for everybody. That is my precise point. If the Pakistani leaders – with all their ill-gotten wealth – emulate wester style of living – they must also follow some of the western values and not flout the common-sensical laws and regulations.
    All citizens of this state must be treated equally before law SIMPLE!

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  • Feb 23, 2012 - 4:32AM

    Indeed a lesson not learned is our quid pro quo for allegations against the President. Herein I would like to mention that a sitting Israli President was recently sentenced to prison for alleged rape of his female protection team. Recommend

  • Cynical
    Feb 23, 2012 - 5:10AM

    @Saleem
    I agree.

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  • Mythical reality
    Feb 23, 2012 - 7:02AM

    Meet new Ejaz Haider in-the-making!

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  • Always Learning
    Feb 23, 2012 - 7:20AM

    Imtiaz sahib, we may not ignore the context and societal norms in which our politics take place. While examples from the West are desirable benchmarks, is it not fair to ask if politicians of the West routinely spend jail time without due process or conclusive evidence. Egregious as it is, please give some space to the political system so that the people have the opportunity to choose between good and bad politicians. Please look at the norms our society follows. How many of us willingly pay taxes, follow the law in spirit and live our lives as truly good citizens should? Many of us are law abiding, but only until the first opportunity to cut corners comes about. So while the political leadership of all stripes must clean their act, each citizen must shoulder the responsibility of improving norms of behaviour in our country.

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  • yousaf
    Feb 23, 2012 - 8:36AM

    As a child I used to see and admire huge chimneys of ginning mills in Kasur.I thought they were so strong that nothing in the world could fell them and they could withstand any force applied to them.One day I saw them being felled by minions a thousand times smaller than their size and my fantasy was shattered.Now I feel that I have been making the same mistake about some men whom I otherwise thought were infallible.How wrong I was.So far as constitution goes it is a bunch of rules for the people of a country to follow in letter and spirit,but for some,unfortunately,rules are for fools onlyRecommend

  • Wellwisher
    Feb 23, 2012 - 10:16AM

    @Falcon:
    if parliament can single-handedly derail the system then who ensures justice in a society against the powerful?
    Only public represented by their political parties must fight it out inside and outside NA not other institutions. The mindset that somebody should help us should change from the Public psychic.

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  • AA
    Feb 23, 2012 - 11:34AM

    Has a Chief Justice of a High court, or its equivalent, in Germany or any civilized society ever defended a self confessed murderer? In Pakistan, they do it with pride. (I’m referring to Kh. Sharif of Lahore High Court.)

    The point is, comparing Pakistan with German society is not a valid comparison.

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  • Hassan Aftab
    Feb 23, 2012 - 3:53PM

    If we were to follow the German example then the president should resign for corruption, prime minister for not implementing the court orders, army chief for incompetence, mysterious abductions and killings in Baluchistan. The CJP should go for trying to bring down an elected government and doing nothing to eradicate corruption in lower courts. The general public should hang their head in shame for not paying their taxes and electing corrupt politicians.

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  • Hassan Aftab
    Feb 23, 2012 - 4:09PM

    The COAS should have resigned the day Usama was killed and taken by the US forces. The Air Cheif should have resigned when a few gunment entered their base in karachi and destroyed the valuable aircrafts. Resigning is not fashionable in pakistan.

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  • Umar
    Feb 23, 2012 - 4:09PM

    @imtiaz Gul:
    “All citizens of this state must be treated equally before law SIMPLE!”
    Really?
    Agreed but not simple as u mentioned.

    I watched u on Dawn with Molvi Ashrafi and impressed with your wit. But have u ever raised your voice to apply the Equality law on Judges, Generals and Journalists?

    Have u ever asked CJP and COAS that how much they pay in taxes and how much money is spent on their protocolsssss?

    Should an elite school student be treated with a Government dehati school in same manner? Sir, we live in hypocritic state of mind, fact is we ourselves dont want to give same rights to lower class but demand same rights from upper class.

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  • Timorov
    Feb 23, 2012 - 9:49PM

    Absolutely brilliant Mr. Gul. Thank you for saying this so forcefully what needed to be said. I want to thank you from the bottom of my heart for speaking the truth! Recommend

  • Siddique Malik
    Feb 23, 2012 - 10:44PM

    Mr. Gul doesn’t seem to understand the issue. German prosecutors’ demand that the presidential immunity should be lifted is not equal to prosecuting the German president. Anybody in Pakistan can make demand that vis-à-vis Zardari, and they should. Zardari does not deserve to occupy the office of the president. The fact that a corrupt person who heads a party became president and nobody said a word — not even the self-declared custodians of the basic structure — is the real problem. But until the immunity is lifted or the person in question leaves or is forced to leave the office, he/she as the head of state, cannot be prosecuted. So when Mr. Gul castigates a lawyer for taking the case of the prime minister – that’s what lawyers do, take cases – he is confused. When German president resigned, he lost his immunity. Now does anybody have the courage to make Zardari resign? Why are judges not focused on , Zardari, and want to harangue the prime minister, while fully knowing that no head of government will ask – or for that matter should ask — another country to act against the head of his country.
    Siddique Malik, Louisville, Kentucky, USA.Recommend

  • Khurram Khalid
    Feb 23, 2012 - 10:54PM

    Germany is a developed democracy whereas Pakistan is a struggling one. The accountability of politicians holding offices on corruption charges is highly selective in our country. Financial corruption is wide spread, not merely limited to the upper crust of elite, it is even spread to the middle classes. It encompasses not only politicians, military officers, civil servants, judges, and businessmen but also lawyers, accountants, bankers, doctors, journalists and sportsmen. Corruption tag and accountability mantra are however used selectively not with the purpose of curbing corruption, but as a propaganda tool to demote civilian rule and democracy and to demonize a few targeted ones using courts, state machinery and media Recommend

  • Siddique Malik
    Feb 23, 2012 - 11:13PM

    @Mansoor:
    Awsome, an absoultey awesome comment.

    Recommend

  • Sandip Khanna
    Feb 24, 2012 - 1:10AM

    @White Russian: Well, Well, Well. You are asking some really tough questions. I will venture to answer one. The generals were ashamed no doubt after 1971 and 2nd May. The shame was so great that they decided to make sure everyone else got blown up, everyone but themselves. And to accomplish this feat, like a well managed MNC, they outsourced this work to jihadis of all shapes and forms. After all their job is to fight wars, not blowing themselves up in the process.It’s just not their core competency. Isn’t it?

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  • Siddique Malik
    Feb 24, 2012 - 1:36AM

    @Haider Abbas, Ph.D.:
    Immunity does not cover criminal acts like rape, murder, etc; it covers investigations and civil law procedures, though.

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  • Khurram Khalid
    Feb 24, 2012 - 7:49AM

    There is nothing new about corruption charges against elected civilian leaders. They have been humiliated and then sacked a number of times under the pretext of corruption and mismanagement. This time round the emphasis is on their resignation however under the same old charges. The judiciary, part of media and some pseudo intellectuals have been instrumental before and are being used now in these conspiracies against the civilian set ups. Instead of asking the president to resign the writer should have asked generals and judges to resign for a lot of reasons- being politicized one of them.

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  • Feb 24, 2012 - 8:08AM

    It is really strange to read how people read everything throguh their particular biased prism, without looking into the spirit behind that particular piece of writing; as I wrote earlier, every citizen must be equal before law. Political position must not be a qualification to circumvent law or stand above law. As far those talking about taces of the chief justice or the army chief, they are an ignorant lot; taxes are deducted at source from the salary of every salaried person – whether president, army chief, or prime minsiter or chief justice. All I am pleading is :Stop thriving at the cost of the common man.And this appeal is to all – military and civilians. It is wishful but we must all keep demanding this.

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  • Khurram Khalid
    Feb 24, 2012 - 9:07PM

    @imtiaz Gul:
    The extent to which we are hypocritical about religion, to the same extent we are hypocritical about financial misappropriations. Like charity, accountability should start from home.
    Corruption-perceived and actual- is a matter of private morality. Continuity of democratic civilian rule and fairer distribution of resources and wealth are related to the public morality. Elite and elitist middle class may live with the private morality alone but masses can’t, that is why Dasti wins elections but Asghar Khan doesn’t. We need both private and public moralities.

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  • Mar 1, 2012 - 7:57AM

    @Umar:
    Dear Umar, thanks for your comments. Its not my job to address individuals as u mention. Our job is to ask for equal treatment and justice for all – accountability of all. So please learn to appreciate if somebody raises that voice rather than tracking off the real intention and purpose which is : All must be equal before law, no exemptiion no exception, no immunity and , accountability of all those who violate law or abuse their position. SIMPLE>regards

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