ARTICLE (February 02 2010): On January 31, a
leading English news daily carried a report
on its front-page based on its
reporter's interaction with some legal
'experts', who advocate that the remedy to
the controversy over the immunity of the
president "lies with the people of Pakistan
through [his] impeachment by [the]
parliament."
According to former Justice Tariq Mahmood,
"even if corruption cases against President
Zardari are re-opened, no process
could commence to summon him to courts. This
also applies even if money laundering cases
are re-opened by the Swiss courts
because then the question of sovereign
immunity would come." His interpretation of
the Constitution speaks volumes about the
law-upholding character of the
constitutional provisions.
Not only that, it also reflects on the
wisdom of the honourable Gentlemen like
former Justice Tariq Mahmood engaged in the
business of applying the law, hopefully, in
their struggle to build a truly law-abiding
and accountable society. How else
could such a profile of the society be
assured unless total immunity was guaranteed
to the president even if his/her conduct
was questionable? What a self-deceptive hope
it is!
How much respect for the Constitution will
such interpretations thereof build among the
masses isn't hard to imagine. In my
view (and I hope I am dead wrong) such
interpretations of the Constitution will
create serious doubts about its sanctity
because these interpretations make the
Constitution visibly partisan in the
treatment of the president and the citizens.
Hopefully, such discrimination was not
intended by the constitution makers.
According to the said press report, advocate
Athar Minallah advises us to "refrain from
dragging issues having political
fallout [into] the courts because a
situation like this tended to make the
judiciary controversial." Defending the
Constitution, he says "being an organic
document, [it] must not be interpreted to
suit certain interests;" what exactly does
his reference to "certain interests" depends
on your perception thereof.
If you take his view to imply that asking
for accountability of the president in the
ongoing debate suits "certain
interests", and not national interests and
national dignity, it's your problem; you
should have your head examined.
Seemingly, the message being conveyed by
advocate Athar Minallah is that, even in a
democracy, the president of the country
is like the traditional king who is above
the law that applies to his/her subjects.
Advocate Athar Minallah is forcefully
seconded by former Justice Tariq Mehmood
when, citing Article 248(2) of the
Constitution, he is convinced that "no
process of any criminal nature could be
initiated against the president as long he
was
sitting in the presidency." If such immunity
gives the president an imperial status, and
in your perception the difference
between monarchy and democracy begins to
fade, again it is your problem.
Regarding the 'exalted' status of the
president, citing Article 47(1) of the
Constitution he explains that office holders
subject to impeachment, are protected from
legal accountability ie are immune from
being dragged into courts even in criminal
cases. By implication, crimes committed by
them should be proved and punished by the
parliament. If it elevates the
parliament above the Supreme Court in
interpreting the law, be it so.
According to the news report cited above,
even advocate Salman Akram Raja, who
recently pleaded against the NRO before the
Supreme Court, said that the president
enjoyed complete immunity from all kinds of
criminal cases and that the July 20
judgement did not affect this protection.
For the reporter, who filed this report,
advocate Raja's view is particularly
important because, impliedly, it concludes
the debate.
For very strange reasons, the subject news
report quoted only those legal experts that
hold identical views. On January 30, I
attended a seminar wherein former Justice
Whajihuddin Ahmed said that Article 248 of
the Constitution afforded the president
immunity only against administrative acts
committed by him during his tenure of
office, and that such acts could only be
politically controversial, not criminal in
character.
Also, that while immunity is available to
acts that could only be politically
controversial and not criminal in character,
the president has no immunity against acts
allegedly committed by him/her prior to
assuming the office of the president.
Based on his interpretation of Article 248,
Barrister Kahlid Anwar has expressed the
view that while the president has
immunity in criminal cases, he cannot enjoy
this privilege in civil cases.
During the hearing of the civil cases
against him/her, while the president may not
be summoned to the courts of law in
connection with the hearing of those cases,
the president may at his/her discretion
decide to participate in those hearings
because the president has every right to
defend himself/herself, and by treating
him/her at par with every other citizen, the
law gives the president this choice.
Former Justice Wajihuddin Ahmed's view of
Article 248 is diagonally opposite to those
offered by former Justice Tariq Mehmood
and advocates Minallah and Raja. Besides,
former Justice Ahmed's view also clarifies
the limits of the immunity available to
the president, and that commission of
criminal acts is not protected by the
constitution. Those who believe him will
have a
bit of their confidence restored in
democracy and the Pakistan's Constitution.
Without doubting the sincerity of former
Justice Tariq Mehmood and Advocates Minallah
and Raja, it must be pointed out that
their interpretation of the Constitutional
provisions conveys the impression that they
are favouring "certain interests" -
something they advise the lobbyists for
presidential accountability and the
judiciary to avoid; sadly, none of these
respected legal experts realises that he is
committing the same error.
The more dangerous aspect of their reasoning
is that by advocating immunity for the
president that is not provided for by the
Constitution, they are projecting the
Constitution as a mechanism to perpetuate
monarchy in the guise of democracy. Worse
still, the immunity they advocate defies the
tenets of Islam and their practice as
manifested in the conduct of the Holy
Prophet (PBUH) and the first four caliphs.
By doing so without meaning to do so, they
are undermining the sanctity of the
Constitution and the cause of democracy.
Interpreting the law according to the needs
of a client is one thing, but interpreting
it without an assessment of its
consequences for the nation as a whole are
two entirely different propositions. Jurists
and lawyers bestowed the reputation
of being experts, must exercise care; they
can build or destroy democracy.
Democracy always became the mechanism for
perpetuating misrule and thus a target for
the opportunists in khaki uniforms. To
again give democracy the guise of a
dispensation that protects the wrongdoers,
and advance legal arguments in favour
thereof
would be a greater disservice to democracy
than the many done to it by self-styled
'democrats'. Immunity is an outdated
concept; the era of un-restricted
accountability has begun.
Copyright Business Recorder, 2010
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