The current contempt of court situation is the result of two major failings of two players: the Supreme Court and the prime minister.
The first failing can be identified in an otherwise excellent National Reconciliation Ordinance (NRO) judgment of the Supreme Court (Mobashir Hassan v The Federation of Pakistan (PLD 2010 Supreme Court 265)) – in which it does not take into account the newly acquired status of one of the beneficiaries of the NRO 2007, ie presidential immunity of Asif Ali Zardari.
The second failing is on the part of Prime Minister Yousaf Raza Gilani, because he did not apply to the Supreme Court to get direction on the presidential immunity immediately after the NRO judgment was delivered.
The President of Pakistan enjoys absolute immunity from criminal prosecution under Article 248(2) of the Constitution: “No criminal proceedings whatsoever shall be instituted or continued against the President ... in any court during his term of office” (emphasis added). The language used indicates that (a) the immunity is absolute and (b) new proceedings cannot be instituted and existing proceedings cannot be continued and must cease.
In its verdict (paragraph 169) the Supreme Court held: “We are of the opinion that the NRO, 2007 is void ab initio, therefore, the parties who have derived benefit shall not be entitled for the same from 5th October, 2007 and all the cases withdrawn under ... NRO shall stand revived immediately.” The court (paragraph 178) further ordered the federal government and all other competent authorities to take immediate steps to seek the revival of the cases in Switzerland. Between the NRO promulgation in 2007 and its invalidation by the Supreme Court in 2009, Zardari was duly elected President of Pakistan and his immunity thereby kicked in. The Supreme Court in its judgment did not explain why presidential immunity should not stand in the way of implementing its judgment.
Under customary diplomatic law, a serving head of state enjoys absolute immunity from the jurisdictions of other states except for grave criminal offences such as genocide and crimes against humanity. The British Highest Court, the House of Lords, in the case of R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (Amnesty International and others intervening) (No 3) [1999] 2 All ER 97 said: “It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state... This immunity extends to both criminal and civil liability... the head of state is entitled to the same immunity as the state itself’ (emphasis added).
In the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium, paragraph 51), the International Court of Justice said: “The Court would observe at the outset that in international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal” (emphasis added). New proceedings can be initiated or the previous ones can be resumed if a serving head of state waives the immunity. Such waiver must be voluntary and expressed. No court, municipal or international, can coerce him/her to waive immunity.
In the NRO verdict, the Supreme Court cited international law on corruption and some instances involving former heads of states but did not deal with immunity enjoyed by Zardari as a serving head of state. Had the Supreme Court dealt with immunity, today the prime minister would have no legal excuse for not implementing the NRO judgment.
And then there is the prime minister.
Gilani has also failed to get clear direction on the question of presidential immunity immediately after he was ordered to write to the Swiss authorities. If he were sincerely concerned with legal obstacles and had approached the Supreme Court in good time, he would have not ended up standing in the dock.
Both parties still have the opportunity to resolve this. The prime minister should apologise to the Supreme Court for the delay in implementing the NRO judgment and apply for clarity on presidential immunity under municipal and international law. The Supreme Court is constitutionally bound to give either the benefit of law as it stands today to the president or give reasons why he is denied such benefit.
Those who attack the law on immunity, I would say it is a different matter for a different forum for another day. The author is a Senior Lecturer in Law at the University of Hull, United Kingdom.
Published in The Express Tribune, February 5th, 2012.
COMMENTS (18)
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As far as the president’s immunity is concerned, it is not comprehensible why the Supreme Court is asking that he should approach the courts for it when the constitution is quite clear about it. According to Article 248: “(2) No criminal proceedings whatsoever shall be instituted or continued against the president or a governor in any court during his term of office...(3) No process for the arrest or imprisonment of the president or a governor shall issue from any court during his term of office.” The Supreme Court is within its rights to serve contempt of court notices to whoever it deems fit, but whether contempt has been committed by the prime minister, law minister and law secretary is arguable given the immunity clause in the constitution. Even the Swiss authorities are not willing to open the cases as they have indicated time and again. As far as the NAB chairman’s removal is concerned, what has he said or done to attract this option? He has only stated that it is not within NAB’s purview to go after his predecessors. The most interesting option is the last one where the court seems to be directing itself to exercise judicial restraint and allow the people and/or parliament to decide the fate of this government. That seems to be the only wise course. Given option number six, the first five options do not make much sense. All institutions of state should work within their parameters instead of going out of their way to step on each other’s toes.
Political imperatives must prevail over judicial processes.
Supreme Court has unwittingly played into the hands of those who dislike restoration of democracy and certainly popular rule.
The question is Prime Minister is very loyal and does not want to budge an inch, his advisors are too sharpn and all want to do their best by way of not let him use his own discretion,in implementing the judgement Though he is fully aware that he is accounatable??.
Lets see what the Honourable Mr Atizaz does,?? He is planning a very lengthy review application, apparently which may take many hearings, and maybe that may give the PM time he requires??
@Sehr.Siddiqui:
If immunity is against the tenets of islam than the law of contempt of court has also no place in islam, so u should also advocate against it. Immunity is avaialble in modern world to all 198 head of state of existing world, because stae cannot function if you drag its head in courts every other day is wisdom behind this law. It is not absolute but for limited time of tenure. pakies to be patient like others.
@Uza Syed: The Constitution says that there shall be no law which is repugnant to the teachings of the Holy Quran after all Pakistan has been renamed as the Islamic Rebublic of Pakistan.
@Nadeem: Very valid point Nadeem Sahib. The PCO SC and its judges have forgotten to read simple English in the constitution and in their zeal they are playing with the future of Pakistan as well. Now the whole would can bring terrorism charges against Pakistani govt for keeping OBL. Thanks and regards, Mirza
Since the SC has the final say on the constituion, hasn't the SC, by default, already stripped the President off its immunity by demanding the PM to write the letter? Isn't the immunity decision already decided? If there is doubt, shouldn't the honorable SC first justify its demand to write the letter? Until that justification has come, shouldn't PM contempt hearing be set aside?
The highest court of the land is empowered to interpret laws as to their applicability in different situations. If the president's office enjoys immunity in the normal course of business, that is fine i.e. if he is sincerely going about doing the job for which he is elected and somehow effects a criminal offence in doing so . . . then he has protection. However, if the immunity of his office actually benefits him personally in an alleged criminal action by him, the immunity can be brought into question by the supreme court. Here zardari is hiding behind the office's immunity until the Swiss cases close forever under their statute of limitations i.e. he will benefit personally from the immunity clause to the detriment of others. The supreme court has to review the whole picture with the aim of providing justice. They have the power to interpret laws as they might apply to varying circumstances while others have to follow it to the letter. Please respond Mr Shah.
@Nadeem: You raised a good point. How come the judges can't see that??? It's not just about Zardari it's about the sovereignty of Pakistan in the future. Impossible to keep our sanity if we continue to follow all the news.
@Sehr.Siddiqui: The fact is that the Article 248 (2) was and still is part of our Constitution which provide immunity to our President. As well as all the Head of States (including our President Zardari) do have immunity under all the existing norms of International Laws and Tenets and our president had no influence on them. Now, what does Islam or its tenets got to do with the existing laws---you sure don't wish to imply that Islam should be dragged into this power tussle and used to violate or own constitution and insult the International laws.
@Karim: No sensible and democratic person would disagree with you. Aitezaz Ahsan would avoid talking about immunity as it is very weak case. Even if it was a strong case the immunity whch is against Islamic tenets has to be claimed and not assumed. If every body starts making his assumptions for not carrying out court orders, country will have anarchy all over. Is Aitezaz(like Babar Awan) presuming that 17 Judges did not know the applicability of Article 248.Be careful this assumption is not only a contempt but also an insult to the court.
Sitting in the comfort of the picturesque fishing town of Hull it's easy to be academic and you also may be right. When you have to live and feel the harsh reality of shamelessly bad governance and constant media reporting of loot and plunder, academic considerations can get pushed back and reality and result orientated steps become necessary.
If SC did not deal with immunity in its NRO verdict, it was because issue was as clear as it could be. Constitution clearly describes issue of immunity, how other way could have SC dealt with it in its verdict? It is all politics. SC would lock horns on some other excuse, even if everything had gone according to author's script.
The notion that a President can have absolute immunity over any act whatsoever is complete nonsense, and could not possibly have been the intent of the writers of a democratic constitution. if the President of Pakistan were to shoot me point blank on a street in Islamabad, does he enjoy complete immunity? If you're saying he would, then I would be denied my right to equal protection of the law, which is also mentioned in the constitution, making your assertion contradictory.
There are plenty of cases where courts have rejected an absolute immunity for a head of state. This was the argument made by Richard Nixon's lawyers when his lawyer stated in court: "The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.". Needless to say, the US Supreme Court rejected this argument 8-0.
Leave immunity provided in Constitution of Pakistan aside for a moment. Pakistan is a signatory of Vienna Convention. Writing against head of state would violation of that agreement. In future if a Pakistani head of state is tried in foreign court, we wont be able to claim that international immunity. Court is playing with future of Pakistan!
The whole issue summerised very nicely and neutrally. Its quite evident that the root cause lies with the Supreme Court.for the reasons that: - They were aware of the Presidential Immunity clause, which is very clear, in simple english, with no conditions attached. - Even if it is beleived to be contestable, why was it left un-addressed and un-considered? - Was it un-intentional, or for personal dis-liking for the president? - (Present and / or Ex). The situation has reached to a point where its is not seen as SC v/s Government, but Iftekhar v/s Zardari. Clash of Egos. Proceedings of 2nd Feb are a clear evidence. Zardari / Gillani have burnt their boats and prepared for any consequences, except to write the letter. However there is remedy to every problem. Let's hope that better sense prevails at either side, and matter is resolved amicably.
This is simple politics court is playing. Nothing to do with norms of justice or fair play!