Now, I could hardly qualify to discuss legal issues. Consequently, mine is a layman’s view, for lay readers to consider.
Article 248(1) of the Constitution says: “The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, a Chief Minister, and a Provincial Minister shall not be 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 performance of those functions”.
This particular article, however, relates only to acts “done or purported to be done” in the performance of their function of office: which clearly means that this immunity is a) only for the period that they are holding their offices and b) for acts done only in the performance of duties of their respective offices.
It is, however, Article 248(2) and 248(3) that grants blanket immunity to the President and Governor(s), which will come under the scrutiny of the Supreme Court. Article 248(2) says that “no criminal proceedings whatsoever shall be instituted or pursued against the president or a governor during his term of office”. Article 248(3) adds that “no process for arrest or imprisonment of the president or a governor shall issue from any court during his term of office”.
The matter is subjudice and, quite obviously, the court will rule on it based on arguments presented. To a layman, like this writer, these clauses appear, on the face of it, to be watertight. If the verdict of the SC is the same as a layman’s point of view, the President is immune; but only for the period of his tenure in office. The day he steps down, he no longer enjoys immunity.
However, I am certain that there will be ticklish questions raised by learned counsels from both sides: for example, if, during his period in office, a president commits a crime will his immunity shield him from prosecution and arrest? Will that also have to await parliamentary impeachment or the completion of his tenure in office, before he can be tried for the said act?
Another question that comes to mind is that does the president enjoy immunity from investigation, in the event that he is accused of a crime, while still holding his office? Perhaps, the prime minister’s plea that he acted in good faith and according to the Constitution might be considered favourably by the Honorable Court, but what will it say on the question of a sitting president being exempt from any investigation of any kind? What if there is a situation that the court passes an order that the president be produced before the court the day he leaves office?
On a related but peripheral note, there are many voices criticising what is currently going on. In my view, whatever is happening is a positive development. This is because despite numerous crises, the military understands the limits of its power and knows that these are short of an intervention, not an actual intervention. The Supreme Court, the organ of state, intended to define the limits of power of the executive, is doing its duty. This by no means implies that the apex court is incapable of erring, but, isn’t that the way democracy functions?
I hope, I am not in a minority in viewing this moment as a democratic victory for Pakistan.
Published in The Express Tribune, January 28th, 2012.
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The independence of the judiciary has been proclaimed repeatedly since its restoration. That is of course a desirable outcome, given the sorry history of supine judgements of the superior judiciary in our past, especially where validation of military coups has consistently been in evidence. Although CJ Iftikhar Mohammad Chaudhry has repeatedly said there is no question of repeating that bad track record, the doctrine of necessity on which such past validations were based having been buried, the present case does arouse concerns that the court may be giving more weightage to the views of COAS General Kayani and General Pasha, whose affidavits before the SC seem to be at odds with their nominal ‘bosses’, the federal government. In cases of such political and constitutional import, the SC in its own interests must ensure that justice is not only done, but is seen to have been done, without giving critics the slightest opportunity to accuse it of bias, since this would be deleterious for the respect and dignity of the judiciary.
@Adnan: If people responsible for the debacle of East Pakistan cannot be held responsible and became heroes later. Why to shed tears, its Pakistan after all.
Democracy in Pakistan is like the War on terror thing. It makes sense to the rulers.
To look at it as a positive development is absolutely correct. But if a clear wrong is allowed to go unpunished because of flowery language then something is clearly not right. On this subject I will repeat myself by referring to Benazir Bhutto's views on this as expressed in her book ' Reconciliation ' page 73, makes for interesting reading, if nothing else.
The only sad aspect in the whole affair, from the laymans point of view, is that everyone knows who the culprit is, that something terribly unscrupulous happened, yet all those who are never shy of talking big in terms of ethics, morals, honesty are there to defend the unscrupulous.