Why executive immunity?
The British prime minister and other Queen’s men enjoy absolute immunity or ‘Crown immunity’. In 1610, UK Chief Justice Edward Coke tried to undermine parliament by declaring in the Bonham case that an Act of parliament could be set aside by the Court if it was against the ‘common right or reason’. The doctrine did not work and Coke was transferred and later dismissed as chief justice. After Coke’s fate, it was established in the UK that parliament was above the law.
Despite having an independent judiciary in the US, the Supreme Court granted presidents absolute immunity in criminal law suits but partial/qualified immunity in civil suits. None of the 43 US presidents in 225 years of American history has ever appeared in the Court. Mississippi vs Johnson in 1867, Nixon vs Fitzgerald in 1982 and Clinton vs Jones in 1997 are landmark cases regarding presidential immunity.
The first major reason is that criminal suits would ultimately result in disqualification or discharge of the executive from his/her duties. All constitutions ensure the executive stability of the head of government in his or her tenure in office until removed or impeached as mentioned in the law. In both the presidential system, as in the US, and parliamentary systems such as in the UK, Canada, India, Japan, Italy and Australia, the executive head cannot be removed from office by the courts. The prime minister of Pakistan is also a chief executive having control of the nuclear button in case of threat to the country’s survival. This office must not be left vacant even for a second.
The second reason for executive immunity is to give the executive freedom of action to perform its duties in the public interest. It is the foremost job of any executive to execute and enforce the laws of a nation. Courts have neither the resources nor the power to implement decisions. It is also against the principle of non-interference in the affairs of the executive. They have to make decisions regarding domestic and foreign affairs. Let them do freely what they think is best for their nation.
Thirdly, it seems undemocratic for non-elected judges to oust an elected person. The executives are not ordinary ‘citizens’ as mentioned in the law, particularly when they are in office. Disqualification from office is the highest form of punishment for an elected person. In stable democracies, such as in the US and western European countries, even members of legislatures are not disqualified by the Courts. Generally, the ethics committees of legislatures decide such issues. Take the example of Charles Rangel, a congressman from New York, who was recently censured by the House of Representatives for multiple legal and ethical misdeeds.
The fourth and fifth reasons to give immunity to executives are time and energy. Being an executive requires tremendous energy and exposure. Just as judges are immune from any litigation, the executive also has immunity. They should spend a reasonable amount of time on matters of public, not personal, interest. They must protect the people in both peace and war.
According to Article 248(1) of the 1973 Constitution, the prime minister and his cabinet enjoys executive immunity. The prime minister can be removed from office only by a vote of no-confidence under Article 95(4). The Supreme Court of Pakistan set an extraordinary precedent by stretching the law to the extent that a unanimously elected prime minister had to leave office. Many are of the view that this was an unimaginable jolt to parliamentary democracy in this country.
Published in The Express Tribune, September 8th, 2012.
COMMENTS (21)
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I completely agree with p r sharma . Unbridled power to parliament is antithesis to democracy.Such a situation is more akin to Oligarchy.
Parliament has the right to amend the constitution as long as it represents the General will and greater good of the people,and not petty self gains.All state organs are interdependent and should be mutually accountable.
To suggest that members of parliament,after being elected ,suddenly acquire the divine right to rule and become above the law ,obtaining the license to indulge in all kinds of criminal acts and civil excesses without being reprimanded is ludicrous.
Chief Justice also enjoys executive immunity. You can not lodge a FIR against him, you need to go to Supreme judicial Council, for President it is parliament.
Writer pointed out some interesting senerio's, how ever he forgot 1. There is no democracy in Pakistan; 2. Parliament is filled with corrupt, liars, false degree holders n what not type of members (no need for investigation all of the above, it's written on the wall); 3. majority of the voters, vote upon order not choice; 4. Absolute immunity itself is dangerious n in case of present matter in hand it can't be applied; 5. Judges are public servants or not, fact remains these parliamentarians are servants (they are paid wages/given facilities) by/from public tax's, they are selected to represent people not just to rob them; 6. It's Islamic Republic of Pakistan n it's Rulers are not only answerable to civil laws but Islamic Laws as well n in Islamic Law no one is over the law. Lastly, pointing out Colonial Rulers democracy as a example, itself is an insult to the word democracy.
There is no unqualified immunity for executive in the constitution. The immunity is restricted to acts and omissions only pertaining to official discharge of duties and that too only available for the time a person holds a public office. If a public office bearer commits any criminal act, he can be tried in court during his official tenure e.g., he kills someone. Secondly official acts and omissions can also be tried in court after the expiry of his tenure and its up to court to decide weather these acts and omissions were legal or unlawful considering the circumstantial evidence e.g., Musharaf is being tried in courts for giving orders to "murder" Bughtii,.... Gilani explicitly refuse to obey apex court's judgement which he was required under the constitution to carry out, he had no immunity in this case..... The chief's judgement was according to the constitution in his case. All leading lawyer agree on this point.....
why there should be any executive immunity? There should be multiple ways to check the executives of the country. when a party rules the country with majority in the parliament but forgets that why public sent them to rule. And the question arises why a ruling party persons disldge their party executive from country's executive post.???
One thing the writer fails to understand or comprehend is that the Executive immunity he has cited is for actions made whilst in power. If the person commits a crime before he is in power then he should be prosecuted regardless.
@Parvez: r u sure immunity is an issue we can disscuss when talking about islam? r u sure?????? do u hv idea wht law and constitution is all about? why state was created as an institution? how it evolved? wht modern state is all about? wht place religion or in other words islam has in this whole fiasco????? i wud like to hear more to know....
The context Mr. khan is refering is irrelavent. He is giving the examples of the U.K. and the U.S. whom we never follow as far as rule of law is concerned. Second, what the writer wish to say that we should give immunity to the prime minister not to the president. Well imunity should not be with any body if we really believe in democracy and rule of law. If the author read carefully to article 248-1 of the constitution says, "....Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federations or a Province." It shows clearly that any person rather he is president, governor or any minister not suppose to restrict any person's fundamental right to bring the executive in court for depriving the people of Pakistan from any right. Therefore, the writer should restrict himself from flattering the executive.
In your discourse you have avoided to mention that Pakistan is called the Islamic Republic of Pakistan where the Constitution and laws have to be in conformity with the principles of Islam and in Islam there is no immunity what-so-ever for even the ruler. Suggest see Benazir Bhutto's views on this in her book Reconciliation page 72-73. What we have today is a law that is there because it shelters the wrong doings of the same people who are entrusted to make laws.
Mirza, What I understand from p r sharma is that every good constitution ensures basic human rights of life, freeedom of speech and freedom of faith etc. irrespective of cast creed or race.And further sub laws and clauses must not coincide with the basics of the constitution.However there is a possibility that some mad parliamentarians as in the case of Pakistan, can for some political motives make laws which coincide with basic fundamentals of constitution.In that situation supreme court must take action to protect basic human rights of ctizens and nulify any such amendment. Regards
The line between judicial activism and judicial over-reach is shifting and fluid. Every nation has to go through the power struggle between the two till a reasonable fixture is set up. The important thing to remember is that the adventures in domains of the other can have serious repercussions, so step should be taken with utmost care and due diligence.
Question: Can the prime minister shoot down the chief justice and claim immunity?
It would appear so from the above article. It will ensure executive stability, freedom of action and supremacy of democracy.
Chief Justice considers himself an elected and popular leader not a judge; he himself is law and constitution and decides according to his righteous approach. Only person who got immunity is Arsalan Ifthkhar; none else!
You are trying to compare Pakistan's hodgepodge democracy with the US and UK, there is no comparison at all. This government came in through a shady deal arranged by a foreign country with a military dictator. Tell me, how many of these so called parliamentarians has violated the Constitution and the laws of the land by falsifying their degrees and some having dual citizenship. and how about the mega corruption by the cabinet members with the blessing of the President and PM, and you want to give them immunity from prosecution. Look around you, when the government deliberately ignore the court's decisions then the citizens take the law in their own hands. The Supreme Court is the only institution which is safeguarding the public's interests and the rest of the gang in Islamabad is helping themselves by crooked means.
Why executive immunity?
If it includes Pakistan's most powerful executives - the generals - only than it can be called equal Justice.
Do compare with the US or India in this regard please: there generals frequently face civil court benches.
@p r sharma: If the constitution is supreme not the parliament then who actually wrote the constitution and amended it? How could a book be superior to the author especially if the author has the right to amend it? No constitution in the world has been perfect to start with and require amendments by the parliament of elected legislature (hence the term legislature) every now and then. If the constitution were supreme then the slavery would still be legal, women would not have a right to vote and blacks would be treated as 3/5 of a human being in the USA. Similarly are you saying that no parliament can change the unjust blasphemy or anti-Ahmedi laws from the Pakistani constitution and if they try it would be shot down by the paid govt servants? Sorry to say but your logic is just like a religious extremist or fundamentalist.
Very well written, this judicial fascism must be resisted. Previously it was military dictatorship, now it's judicial dictatorship, both are recipes for disaster!
In democracy the constitution of the country is supreme and the parliament can not make a law which is against the fundamental rights of the people and the apex court has the right to nullify it. Executives have the immunity for the commission / omission of their official acts and not for the activities of criminal or civil wrong in their personal capacity. Yes, removal of any executive from hiss/her post does not fall under the power of judiciary.
A balanced, factual and fair Op Ed written by a scholar and it shows! Let us hope that the out of control judiciary read these opinions backed by references and facts. Like the generals why do these judges forget that they are paid govt servants and not elected political leaders who have a divine right to do things their own way? In Pakistan it used to be the generals backed by the SC judges now the sequence is changed, judges supported by generals and the rightwing losers of elections. Let us hope some of the judges read your five reasons/points and learn to do the right thing and stick to their primary job function which is to cut down the case backlog they have been sitting for decades.