Gilani’s dismissal — of law and politics

Mr Gilani was defending state immunity, a legal principle on which rests the edifice of the state structure and power.

In the anti-politics chatter, and within parties like the PML-N and the PTI, the rhetoric on the NRO case is this: that Yousaf Raza Gilani was saving Asif Ali Zardari, and that it is a matter of protecting 60 million dollars of corruption. This is akin to putting a spin to a very important constitutional issue that is at stake in this matter, which puts to risk the already shaky democracy in Pakistan.

What is imperative is to recognise that the former prime minister was disqualified defending parliamentary democracy, and not President Zardari. The latter, as an individual does not need that defence. If he needed that protection, Asif Ali Zardari would not have languished for 10 years as a trial prisoner, facing dozens of cases, and despite this long confinement, there were no convictions from the courts.

What Mr Gilani was defending is state immunity, a legal principle on which rests the edifice of the state structure and power. The prime minister took a stand for protecting and upholding the Constitution of Pakistan, more specifically Article 248(2), encompassing the principle of sovereign immunity.

The immunity clause is not to protect an individual but an office, specifically the office of the President, who, heading the state, is the sovereign. The executive, legislative, and judicial forms that constitute a state are conjoined in the office of the President. The president is the Supreme Commander of the armed forces and gives oath to the prime minister, to the cabinet, and to the chief justice of the Supreme Court. The president summons the parliament and signs into law all legislation carried out by parliament. The president confers medals — highest civil and military awards — and grants amnesty to those in prison serving death sentences. In other words, the president is a constitutional office epitomising all constitutive organs of the state.

Opening up litigation would not open up against a person, but against the state itself, exposing a constitutional office that brings together all the various offices of the state, including the parliament and the judiciary. Almost all common law states and parliamentary democracies protect the office of the monarch or the president. And almost all legal experts agree that the immunity clause needs no further clarity.

Some, however, argue that this immunity is something that the government should claim, others say that writing a letter to the Swiss authorities does not imply breach of immunity. The first argument defies logic, as the president is the formal appointing authority for the Supreme Court judges, and their removal, too, can only take effect through the president, so it is strange that the Supreme Court should ask the government to claim immunity for an authority that the Supreme Court chief justice takes his own oath from. The latter proposition is also weak, as writing a letter is the first step to a government calling for proceedings against its own president and, therefore, for instance, the Supreme Commander of our armed forces, in the time of war!

However, there is yet another argument, more political than legal but equally important.

If immunity of the head of the state becomes subject to interpretation, then not only the president, but the entire political set-up becomes vulnerable.

In Pakistan, the political class has always been subject to intense scrutiny, often by a non-elected elite, who have somehow escaped all accountability for their own wrongs. Judges and the armed forces have historically colluded to denigrate the political class and political systems often by using morally loaded rhetoric. Not allowing political space and institutions to flourish is the primary reason for the predicament we face today.

It has been rightly pointed out by various commentators that although Article 58 (2)(b) is gone, a subjective interpretation of article 248(2) read with some of the vague provisions of Articles 62 and 63 could be the new 58 (2)(b) through judicial means. In which case, the zealous celebration by the PTI and the PML-N over the dismissal of an elected prime minister enjoying the support of two-thirds of parliament by a three-member Supreme Court bench may be only encouraging a dangerous precedent of  which they could equally be the victims — or targets — in the future.

Published in The Express Tribune, July 2^nd, 2012.