A question of presidential immunity

If the verdict of the SC is same as a layman’s point of view, President is immune; but only for his tenure in office.

The prime minister was served notice for contempt of court for not obeying the Supreme Court’s ruling on the NRO issue and refusing to write to the Swiss government to initiate proceedings against the sitting president of Pakistan, Asif Ali Zardari. Aitzaz Ahsan, learned counsel for the prime minister, defended his client by citing Article 248 of the Constitution, under which the president enjoys immunity from criminal proceedings and pled that the PM was not guilty of contempt since he had acted in “good faith” under the blanket immunity applicable to the president.

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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