A legal view of immunity to Raymond Davis

Mirza Shahzad Akbar
Friday, February 04, 2011

ISLAMABAD: Does Raymond Davis have diplomatic immunity? A simple answer is no, because he is not a diplomat. Diplomatic immunity in layman’s terms is a form of legal immunity held between governments through treaties, which guarantee that diplomats are given safe passage and considered immune from civil suits or criminal prosecution.

The governing instrument of International Law for diplomatic immunity is called Vienna Convention on Diplomatic Relations 1961, and a lot has been said about this already in press and on TV. However no one has paid attention to a similar treaty of just two years later, called Vienna Convention on Consular Relations 1963 which was adopted by Pakistan through Diplomatic and Consular Privileges Act 1972.

This Convention governs immunities and privileges accorded to Consulate members and its staff. The word “consular post” is defined in Article 1 of 1963 Convention as any consulate general, consulate, vice consulate or consular agency, and consular officer is defined as any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions.

After understanding these two definitions given in Vienna Convention of 1963, one needs to read Article 41 (1) which says: “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority”.

Now having read the law, there should be no doubt in anyone’s mind that if a member of US Consulate in Lahore kills someone, he is answerable to a court of law in that jurisdiction, as there is no other crime more heinous or more grave than murder. The next important fact to establish here would be: who is Raymond Davis? This has to be looked further into from two angles: one concerning his legal status and second regarding his factual status. For determining his legal status, the US Embassy Islamabad’s press release of January 28, 2011 is quite helpful which says:

‘A staff member of the US Consulate General in Lahore was involved in an incident yesterday that regrettably resulted in the loss of life. The US Embassy is working with Pakistani authorities to determine the facts and work toward a resolution’.

This statement can be read on US Embassy’s website at http://islamabad.usembassy.gov/pr-11012801.html.

In light of this we can say that Raymond Davis who was a US Consulate Lahore employee shot two citizens of Pakistan, and his accomplices (still at large) ran over another passerby and as he is not a diplomat as per Vienna Convention of 1961 but a consular officer as per Vienna Convention of 1963. Therefore he has no diplomatic or consular immunity as the crime concerned is of grave nature, and his fate is to be determined by the court of competent jurisdiction, which in this case is District and Sessions Court in Lahore.

Now the second angle about Raymond Davis is the factual aspect as to who is Raymond Davis? According to American press, Davis runs a Florida based security company named M/s Hyperion Protective Consultants. Similarly, according to American analysts and security experts this Florida based company sounds like a typical CIA operative. According to Jeff Stein’s report in Washington Post, and the security expert Burton, Davis “had outstanding situational awareness to recognize the attack unfolding and shoot the other men. It shows a high degree of firearms discipline and training.”

And finally the post mortem report of victims establishes the professional style of execution. Another interesting fact is that it took US Embassy days to determine the exact status of Raymond Davis. And to further insult our intelligence the US Embassy press release on the issue on January 29 declares him employee of US Embassy Islamabad (this not so innocent assertion is to claim diplomatic immunity under 1961 Convention). And the story of self-defence does not fit in quite well in the presence of several bullet shots at the back of motor-cyclists. In any event, for a successful plea of self-defence Davis would have to establish grave and immediate danger to his life and the use of reasonable force to avert such danger.

In the end, the uproar of Pakistanis in the aftermath of this incident and the prevailing anger among masses should not be construed as anti-American. Pakistanis do not hate America, for many it is the hope of success and better life. The idea of liberty and freedom flows from US in modern history. But majority of Pakistanis do hate American state’s hegemony, self-righteousness and their policies in the region. American State was much hated in the Arab world for their policies towards Palestine and Israel and now we see uprising in Egypt and Jordan against their dictators who had been toeing American line for too long. This growing hatred in Pakistan for America is rather new for American post 9/11 policies. Let’s hope it does not lead Pakistan to utter chaos.

The writer is a practising lawyer in Islamabad. email: mirzashahzadakbar@gmail.com

Why Obama should be happy that the CIA is being sued

Mirza Shahzad Akbar

To give you an idea: drone attacks are happening almost twice a week now on Pakistani soil. Karim Khan, a tribal man by origin and a journalist by profession, who is suing for his loss of blood in this attack had only two options when his innocent son and brother were killed in one of such drone attacks on December 31, 2009: to join Taliban’s war against US and take his revenge in a customary tribal way, or to call on due process, rule of law and judicial system of his state to get justice for the wrong done to him. The first option would have continued the cycle of terror, which we witness in the Land of the Pure in the shape of suicide attacks after every drone attack. Karim Khan chose the latter and following him, 15 more families have come forth to seek justice through proper legal means. It is time now for the US to respond to these grievances through legal means.

Under the authorization of the American President, drone attacks on Pakistani territory have been carried out by the CIA since 2004. This is an unprecedented move: a foreign government’s civilian organ has thus been allowed to carry out large-scale assaults on an independent and sovereign state without declaring war or acknowledging a conflict between two countries. There is a long list of breaches of international and domestic law that this involves, but this is not the impetus of this article.

In November 2010, Karim Khan initiated legal notices against the CIA and the US Secretary Defence for the wrongful death of his son and brother in drone attacks carried out in the North Waziristan Agency. Many expressed surprise at this move. However, rather than asking why someone is taking this step, the question should be why it did not happen before.

Further surprise came in the shape of an email received by a dear friend, which also highlight the faulty Western apprehension of terrorism and militancy in our region. This western friend, current McCloy Scholar at Harvard University with considerable international experience, displayed a mixture of condescension and ignorance as he wrote “I’m crossing my fingers that the process (legal action) will help address what I believe to be the really underlying question: Progress in the region cannot be made if Taliban and Al Qaeda are allowed safe havens in Pakistan, and drone attacks are the only way to attack these safe havens….’

What astounded me was the belief expressed by some Western scholars and politicians that drones are the only viable option of combating terrorism or militancy in tribal areas of Pakistan –experience and statistics tell a different story. The first drone attack was carried out in 2004 and had a specific target. This was true for all nine drone attacks that took place until 2007. However, identifying targets became shaky as the number of strikes increased. After President Obama’s oath of office, the drone attacks saw a sudden surge. In 2009, there were 53 attacks killing 709 people without State Department or CIA distinguishing between civilians and militants, as we have long forsaken the due process for such a declaration. 2010 saw over 113 attacks with death count of over 2000 human beings, again with no distinction between civilians and militants. As a result of this large-scale human cleansing, the US have only been able to achieve 31 high value targets, according to estimates by Steve Coll’s New American Foundation. We have seen that with every assassination of militant leaders, they have reemerged and been replaced with a more ferocious and extremist leader. Hakimullah is a prime example here.

Coinciding with the surge of drone missions, Pakistan has also been experiencing a spike in suicide attacks since 2006. This was not the first time, we had our first suicide attack in 1995 by a Egyptian national on the Egyptian Embassy in Islamabad. There were a few more until 2006, but most of these attacks were sectarian or for some other specific motive always making a specific target. However, since 2006, the suicide attacks in Pakistan have been indiscriminate. Over 2100 were killed in 2010, without distinction between women, children civilians, law enforcement or military. In total, 6302 individuals have been reported as killed since 2008. The actual number is likely to be much higher.

The epic centre of all this chaos in our amidst, the US have given only over $11 billion in aid to Pakistan for its War on Terror since 2001 whereas in contrast the estimated damage to Pakistan due to terrorism crosses over $36 billion. A large portion of this damage is attributed to suicide attacks. The US’s own losses in Afghanistan – financial, human, and tactical – are unquantifiable. Over $6 billion have been spent since 2002 on establishing a viable Afghan National Police force, which the late Richard Holbrooke called ‘an inadequate force riddled with corruption’. Over $10 billions of American tax payers’ money have been spent on building Afghan National Army, which was termed by Wall Street Journal on July 28, 2010 largely illiterate, often corrupt, poorly led and addicted to opium, marijuana and heroin. The latest joint NATO and Afghan Operation Moshtrak in Afghanistan’s Helmand province in February 2010 failed miserably in achieving its aimed objectives of evicting Taliban and establishing a government in the district, despite the enormous budget and zeal of American strength behind it: a ground strength of 15,000 backed with helicopters and jets. Senator John Kerry concluded that the Moshtrak operation did not culminate into the turning point in Afghan operation as anticipated by the US and occupying forces.

 

This cycle of terror will continue until both sides start seeing sense and being adhering to the principles of due process, fair play, and rule of law. Through his legal action, Karim Khan has shown a new path to his kinsmen which ends violence, which is largely attributed to mistakes committed by the state in 1980’s along with the very same partner who is asking us to commit yet another folly. And I do not blame this ally when their scholars consider drone attacks their best strategy to win this war then God help them and those who blindly follow this strategy.

 

Mirza Shahzad Akbar is a practicing lawyer in Islamabad and also represents drone attack victims in their legal action against the USA. He can be contacted at mirzashahzadakbar@gmail.com

 

President and three stooges

Mirza Shahzad Akbar

On the eve of 13^th February, when the citizens of the Land of the pure were planning their Valentine’s Day celebrations, and as the hardliners were contemplating how to disrupt couples displaying their affection in public, the unthinkable folly of all times occurred. Once again the Presidency committed itself to an idiocy which took our minds to the not-that-far past of 3^rd November, 2007. The President of Pakistan issued a notification appointing the Chief Justice of Lahore High Court, Justice Khawaja Sharif, as puisne judge of the Supreme Court of Pakistan and the second senior most judge, Justice Saqib Nisar, as Chief Justice of Lahore High Court. A three members’ bench of the Supreme Court of Pakistan immediately took suo moto notice of the matter, suspended the executive order of the president and ordered the judges to continue working in their previous capacities. Further to the humiliation of the presidential camp, Justice Saqib Nisar also showed his allegiance to the Constitution of Pakistan. He conveyed to Chief Justice Chaudry Muhammad Iftikhar that he would not accept any such appointment that does not have the blessing of the chief justice as required by the Constitution and the established case law of the superior judiciary on this issue.

 

After the executive order of the president, I went back to the grund law i.e. the Constitution and read the relevant provisions time and again to understand the logic of this executive order, which by no means is a constitutional act of president. Article 177 (1) clearly states that ‘…and each of the other judges (of the Supreme Court) shall be appointed by the President after consultation with the Chief Justice’. And the effect of the word consultation and the role of the Chief Justice of Pakistan in appointment of judges were exhaustively deliberated upon in the case of the Supreme Court Bar Association through its President Hamid Khan v. The Federation of Pakistan (PLD 2002 SC 939) and in the landmark cases of Malik Asad Ali vs The Federation of Pakistan (PLD 1998 SC 161), the Al-jihad trust case (PLD 1996 SC 324) and the case of Ghulam Hyder Lakho (PLD 2000 SC 179). There is not an iota of doubt in any sane legal mind in this country that the President cannot ignore the recommendations of the Chief Justice of Pakistan in appointment of judges and especially in the Supreme Court. Any deviation from the ‘consultation’ of the Chief Justice is only on the character, conduct or antecedent of a recommended candidate.

 

Having said all this, the executive order of 13^th February 2010 did not make any sense as the Presidential camp very well know that their case, like the case of NRO, has no merits and will fall in disarray before the legal scrutiny of the Supreme Court. Then why go through the hassle of ruining government’s reputation and being a villain in the public eye? Then I thought of the three so-called legal stooges who are the President’s top advisors and were allegedly present at the time of this order, and the aim of this folly became clear to me. The repute, background and education of these three stooges is better known to all. They drive their lessons of politics from Machiavelli in comparison to Plato or Aristotle. And not to lose the pun here, Machiavelli wrote his famous work, ‘The Prince’ while being in prison and some of his disciples here share some similarities with him in that sense as well. Drawing on the Machiavellian reference, it also became clear that the fundamental principle here is based upon the notion that if you have nothing more to lose, then entangle your opponent in a filthy brawl. You might not win but your opponent might lose his strength.

 

It is undoubtedly clear that the President is not at his zenith. He stands more maligned today than he was while in prison for corruption, as then he at least had the defence of the government’s bias against him. Recently, the shameless NRO was struck down by the Supreme Court, declaring it unconstitutional and un-Islamic. His Swiss cases were ordered to be reopened and looted money to be brought back to Pakistan. Further petitions have been filed challenging the presidential immunity and eligibility of his office. Stories of his government’s uninhibited corruption are being narrated at every corner of the country. The popularity of this government popularity can be judged by the fact that the interior minister is threatening to arrest citizens for any sms exchange about the President or prime minister. Government has failed to command respect and has reverted to gaining it by imposing ridiculous laws, the true narrative of their approval. Needless to say that it remind me of Habib Jalib’s famous poem, Larkanay chalo ya thanay chalo. In all this, the recent onslaught on the judiciary and the Chief Justice is a two prong strategy adopted by the presidency. First to malign the judiciary by entangling them into a time-wasting fight and secondly to divide the bar by politicizing the appointment issue by gaining the left of the bar on ideological grounds. This clash of institutions orchestrated by the presidential camp is another effort to take people’s mind off the real problems of food, water and power shortage, lack of law and order, growing and uncontrollable menace of terrorism and relentless corruption of higher government officials/ministers and all this accumulating into lack of good governance.

 

New judges’ case in the making?

Mirza Shahzad Akbar and Moeen H Cheema
Tuesday, February 02, 2010

The threat of an imminent “clash” of the institutions of the state is the latest rhetorical device employed by the government in its efforts to pressure the Supreme Court. The implication is that the Supreme Court has exceeded its constitutional mandate in the NRO case by laying the groundwork for violating the president’s immunity. In this effort President Zardari and Governor Salmaan Taseer of Punjab are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court.

The president has refused Chief Justice Iftikhar Chaudhry’s recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, commonly known as the Judges’ Case, is being distorted and misquoted in order to justify the executive’s refusal to appoint the judges.

In 1994, President Farooq Leghari acting, on the advice of Prime Minister Benzair Bhutto, appointed 20 judges in the LHC as well as acting chief justices at the LHC and the High Court of Sindh. This appointment of “jiyala” judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this background that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges’ Case in 1996, which was reinforced and explained in Asad Ali’s Case in 1998 and Ghulam Hyder Lakho’s case in 2000.

Article 177 of the Constitution states that: “The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice.” In the Judges’ Case the Supreme Court interpreted this provision to mean that the while the president nominally has the power to appoint the chief justice of the Supreme Court he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the president.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts “after consultation” with the chief justice of Pakistan, the governor of the province concerned and the chief justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the governor. Again, it was held that the consultation with the chief justices is binding upon the president. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

However, the issue currently is very different from that taken up by the Supreme Court in the Judges’ Case. Here the president’s men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges’ Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice. But it did not deal with the appointment of new judges to the Supreme Court and did not require the chief justices of the High Courts be elevated as and when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench was constituted to examine the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments.

Explaining the spirit of the Judges’ Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority “is misconceived and travels beyond the parameters indicated in the Judges’ Case and Asad Ali’s Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court.”

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words “the most senior of the other Judges” are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court’s own words, “…the absence of the words ‘most senior’ in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court.”

Another argument which undermines the government’s argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents in terms of the appointments to the Supreme Court, for instance, of Justice G Safdar Shah, Justice Zia Mehmood Mirza, Justice Muhammad Ilyas and Justice Chaudhry Fazal Karim.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issue of seniority, suitability and knowledge of law is an area which is to be judged by the chief justice.

In fairness, this is not the most suitable method in the world of making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Congress if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges’ Case. The latter is clearly preferable.

If the president and the governor are under the impression that they can stall the appointments of judges indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is “a question of public importance with reference to the enforcement of any of the Fundamental Rights.” Article 199(1)(c) empowers a High Court to “make an order giving such directions to any person or authority, including any government…as may be appropriate for the enforcement of any of the Fundamental Rights.” Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court’s direction.

Mirza Shahzad Akbar is an advocate at the Lahore High Court. Moeen H Cheema is an associate lecturer at the Australian National University

Presidential immunity is very limited in reality

Moeen H Cheema & Mirza Shahzad Akbar
Monday, January 18, 2010

The question of interpreting Presidential Immunity is now quite imminent as the constitutional petition of Khalid Khawaja on the subject is pending adjudication. When interpreting Article 248, the Supreme Court may hold that the president does not have immunity from criminal prosecution since both Islamic law and the original intent of the framers was to subject the head of the executive to accountability except only for official acts done in good faith.

What is more likely, however, is that the court will grant immunity under Clause 2 but will give it as restrictive an interpretation as possible in light of the principles of accountability under Islamic law and a determination of the underlying rationales of immunity. Furthermore, the courts have an obligation to ensure that such a protection is temporary only, for if a president manages to escape accountability even after the expiry of his term then the principles of accountability enshrined in the Constitution shall be violated.

It must be noted that the temporary immunity provided by Clause 2 is also rather limited in reality. Firstly, if there is an allegation of misconduct, charges may be filed against the president and he may be investigated by the police or the National Accountability Bureau (NAB) if the charges pertain to corruption. Trial proceedings may not be instituted or continued before the court; however, upon the completion of the investigation.

Nonetheless, since the protection from prosecution is meant to be temporary only, the prosecution or NAB or a court may take administrative action to ensure complete and impartial prosecution upon the expiry of the president’s term. This may include putting the president’s name on the infamous Exit Control List (ECL) towards the end of his term to ensure that the president does not flee the jurisdiction of the trial courts.

Likewise, other administrative actions may also be taken, such as the freezing of the president’s assets by the NAB chairman under Section 12 of the National Accountability Bureau Ordinance, 2000, “if there appear reasonable grounds for believing that the accused has committed such an offence.” This power is of an administrative nature and hence not covered by Clause 2 of Article 248. If the NAB chairman fails to perform his duties to ensure the eventual prosecution of the president upon the expiry of his term, a high court or the Supreme Court may direct him to freeze the president’s assets. Such a direction pursuant to a writ petition shall be a proceeding before a court but not of a criminal nature and hence would not violate the bar on “any criminal proceedings whatsoever” in Clause 2.

Lastly, and perhaps most significantly, Clause 2 of Article 248 does not cover the president’s co-accused. What may end up happening in all the cases in which the president is an accused is that he himself is never called by a court to answer the charges until the end of his term, but the cases of corruption against his co-accused proceed to their outcome.

In these cases the co-accused are essentially charged with abetting the corruption allegedly committed by the president; therefore, the prosecution shall be seeking to prove essentially two elements: first, that the president committed corruption, and second, that the co-accused abetted in that corruption by facilitating the negotiation of kickbacks or handling the proceeds for example. As such, the substance of the charges against the president shall be litigated in Pakistan’s courts whether he formally appears before the courts or fights a proxy battle while standing uncomfortably, both legally and politically, behind the veil of immunity.

As regards the notorious “Swiss case” on money-laundering, the Supreme Court has directed NAB to pursue the recovery of the funds. Pakistan is entitled to seek the recovery of the proceeds as a civil party whether it is the president or a co-accused who is guilty of corruption. Even if the president enjoys immunity from prosecution both at home and in Switzerland, the money-laundering case can and should proceed so long as the cases against his co-accused are being prosecuted in Pakistan.

Moeen H Cheema is Associate Lecturer at the Australian National University, Australia & Mirza Shahzad Akbar is a Barrister-at-law and a practising advocate in the Lahore High Court.

‘Liberal’ Fundamentalism in Pakistan: Objecting to Islamic Arguments in NRO

Moeen H Cheema and Barrister Shahzad Akbar

January 20, 2010

The Pakistan Supreme Court’s judgment in the NRO case has ruffled quite a few feathers. The governing PPP, in particular the President’s men, are up in arms given not only the political embarrassment caused by the apex court’s verdict and the revelation of damaging information in the course of hearings on NRO, but also the direct threat of prosecution and disqualification posed to the President’s inner circle, if not the President himself.

However, some of the criticism has come somewhat unexpectedly from a particular quarter of the lawyers’ fraternity that had actively pushed for the restoration of the judiciary: liberal rights advocates who have been historically supportive of the superior courts’ public interest and fundamental rights jurisprudence. The grievance appears to be the inclusion of reference to arguments based in Islamic law by the court in its short order amongst the grounds for declaring the NRO to be unconstitutional. Such a reaction reeks of a fundamentalist (i.e. uncompromising and simplistic) aversion to the entirety of Islamic legal discourse, and while it comes from a segment of society professing a liberal rights oriented ideology, it is inherently, fundamentally, and irreconcilably illiberal in that its starting point is a denial of the possible validity of another worldview.

There is no denying that Pakistan’s particular experience with the Islamization of laws has been problematic in multiple ways. The enactment of the Hudood and the Qisas & Diyat laws, for example, led to several kinds of miscarriages of justice and created room for the abuse of powers by police as well as misuse by private individuals. Furthermore, the enactment of these laws played havoc with the doctrinal foundations of Pakistan’s laws with the result that it took the courts and the Parliament three decades to bring many of the controversies to an uneasy rest.

What has arguably been an even more sinister aspect of the Islamization of laws is the further legitimation of existing cultural practices and social attitudes that are inherently discriminatory and misogynistic. This resulted in the adoption by the non-Shariat courts, trial as well as appellate, of positions explicitly and implicitly discriminatory towards women and religious minorities. The Lahore High Court’s decision in a case denying a woman the right to marry without her wali’s consent is a notable and by no means singular example.

What is missing from this picture of Islamization, however, is a narrative of the evolution of a jurisprudence of Islamic public rights initially by the Shariat courts and later on by the High Courts and the Supreme Court of Pakistan. Whilst there is no denying that the Shariat courts’ jurisprudence regarding minorities’ rights has been problematic and that these courts have thus far failed to take up the case for womens rights, the Shariat courts managed to develop a robust doctrinal base for the Islamic right to equality, the independence of the judiciary and, most relevant to the NRO controversy: the principle of the accountability of the executive.

A prime example of the development and enforcement of the Islamic right to equality is the Federal Shariat Court’s decision in ‘In Re: Islamization of Laws’ (PLD 1985 FSC 193). The court declared section 4 of the Members of the National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance 1963 to be null and void for repugnance to the injunctions of Islam. This statute exempted members of parliament from preventive detention and personal appearance before a civil court while parliament was in session.

It must be noted that the exemption was meant to be temporary and related primarily to appearance before civil courts. Nonetheless, the Federal Shariat Court (and in 1991, the Shariat Appellate Bench of the Supreme Court) struck down even this limited protection on the basis of an Islamic right to equality noting that as regards the administration of justice, Islam “requires that justice be rendered regardless of the status of the parties.” Considering that the NRO sought permanent (as opposed to temporary) exemption from appearance before the courts in criminal (as compared to civil) cases, it did not stand a chance in the light of the principles laid down by the Federal Shariat Court nearly two and a half decades ago.

As Martin Lau observes in his recent book The Role of Islam in the Legal System of Pakistan, the Islamic right to equality is stronger than the fundamental right to equality provided in Article 25 of the Constitution as it is rooted in a distrust of the executive. It must also be noted that the Federal Shariat Court’s jurisprudence on Islamic rights (even during the rule of General Zia, to whom the court was presumed to owe an allegiance) was stronger than the rights jurisprudence of the High Courts and the Supreme Court: “a most extraordinary result considering that the implementation of Islamic law is normally associated with a loss of fundamental rights.”

The Supreme Court’s decision in a 1992 case (PLD 1994 SC 412) demonstrates further how the High Courts and the Supreme Court took the baton from the Shariat Courts and the extent to which Public Interest Litigation (PIL) jurisprudence is indebted to the Shariat Courts’ rights jurisprudence. The Supreme Court disqualified a member of National Assembly for having used his political position to obtain a loan on favourable terms in disregard of the established rules. The court based its jurisdiction and authority on principles of Islamic law and Article 2-A of the constitution. To quote Martin Lau again: “Accountability of public officials … was one example of the positive impact of Islamic law.”

To the extent that the Supreme Court has incidentally referred to principles rooted in Islamic law in its short order invalidating the NRO, the court’s position is neither novel nor a departure from established law. Those who have suggested otherwise are either ignorant of the particular strand of Islamic legal doctrine or, as is more likely, the anxiety with Islamic public law principles arises on an altogether different count. If the established principles of Islamic public law discussed above are taken to their logical conclusion several members of the President’s coterie face political demise. Worse still, the President himself may find his constitutional protection from criminal prosecution to be less secure than a plain reading of the text of Article 248 suggests.

It is an established principle of constitutional interpretation that when two provisions of the constitution are seemingly in conflict these must be read together and harmoniously interpreted. On the one hand Article 248 promises the President protection from criminal proceedings in any court during the term of his office; on the other Article 2-A brings in principles of Islamic law including the accountability of the head of the executive. Ironically, in their opposition to the entirety of Islamic legal discourse, those who have campaigned long and hard against the victimization of the poor and disenfranchised now stand on the side of the rich and powerful.

Moeen Cheema is an Associate Lecturer at the Australian National University’s College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.

 

 

Did SC overstep its bounds?

Moeen H Cheema and Barrister Shahzad Akbar
Tuesday, January 05, 2010

In the aftermath of the Supreme Court’s judgment, which has been delivered via a short order, concerted efforts have been made by the ruling PPP to politicize the Supreme Court and create the impression that the decision was not impartial and that the court has over-stepped its constitutional bounds. What is notable that some liberal rights advocates and former supporters of the court during the lawyers’ movement have joined in the criticism with an array of legal arguments which appear to us to lack any credibility upon closer scrutiny.

Firstly, it has been argued by the court’s critics, expressly as well as through innuendo, that the Supreme Court has focused undue attention upon the corruption cases, particularly the cases against the president. It has been suggested that the court did not pay as much attention to the criminal charges (mostly against MQM members) covered by the NRO as it did to the corruption cases against PPP politicians. Another criticism, which had an active life of a day, was that the court’s selective accountability drive did not cover PML-N and PML-Q politicians who had misused political influence to have their bank loans written off: the Supreme Court’s subsequent order on the recovery of bank loans caused some embarrassment to its critics.

As regards the assertion of an undue focus on the corruption cases as compared to the criminal cases, anyone who followed the court’s proceedings would know that when the court initially asked for information concerning the cases covered by the NRO, the advocate general of Sindh fully co-operated and provided the relevant information forthwith. In contrast, NAB officials dithered, twiddled their thumbs and ultimately committed perjury by trying to withhold or present misleading information. A lot of the court’s time and effort was utilized in getting this information out of the NAB officials. It is partly for this reason that the court made adverse observations regarding the role played by the chairman of NAB and its senior-most prosecutors.

As regards the criticism that the court appeared to go out of its way to nail President Zardari and over-stepped its bounds by directing NAB officials to re-open the cases in Switzerland, the argument is disingenuous. Contrary to Governor Taseer’s unsound sound bite that the court should have confined itself to a two-liner of an order, the court was obligated to spell out the consequences of its judgment that the NRO was void ab initio. As regards the criminal cases in Pakistan, the situation is rather simple as these cases were restored to their pre-NRO situation. However, as regards the Swiss case the benefit had been availed outside the country and unless that undue benefit is reversed the value of the Supreme Court’s pronouncements in the NRO judgment shall be undermined. Another criticism leveled at the Supreme Court is that the court has transgressed upon the domain of the executive by establishing a mechanism to oversee the prosecution of the cases that were covered by the NRO. This contention is particularly disturbing when advanced by some leading lawyers, notably Ms Asma Jehangir. Such critics are presumably well aware that the supervision of the trial and pre-trial processes is a core judicial function. After all, Ms Asma Jehangir, amongst other human rights lawyers, have filed and argued numerous writ petitions seeking quashment or registration of FIRs and the grant of bails.

Furthermore, high courts are routinely asked by lawyers to direct executive officials to perform their legal obligations and to exercise their discretion in an appropriate manner. Critics of the Supreme Court are well aware that established judicial review practice in Pakistan empowers the High Courts and the Supreme Court to scrutinize how public prosecutors in criminal cases and the NAB prosecutors in corruption cases perform their obligations to aggressively seek a conviction and present all available evidence before the trial courts. Therefore, criticism that the Supreme Court has violated the constitutional balance of powers by establishing mechanisms to oversee criminal prosecutions in cases covered by the NRO reeks of efforts to politicize the judiciary and deter future actions that may end up undermining the political credibility of the PPP government.

Lastly, we seek to clear the smoke and dust thrown up by the indiscriminate usage of high-sounding catchphrases such as ‘judicial activism’ or ‘judicial adventurism’. The critics of the Supreme Court have indulged in fear mongering and have sought to create an impression through the use of such jargon that the court is threatening to destabilize the political system. Judicial activism suggests that the court is going beyond established precedents and practices to develop new juristic concepts. Judicial adventurism suggests that the court is simply playing politics and is aggrandizing its own powers in disregard of the adverse political consequences that might entail.

This Supreme Court cannot be accused of either judicial activism or adventurism. In the NRO judgment the Supreme Court merely confined itself to elaborating on the logical consequences of the unconstitutionality of the NRO, a position that was unanimously adopted by all parties appearing before the court. As far as fancy labels go, the court does deserve to be commended for its judicial ‘proactivism’ in that instead of sitting back and waiting for numerous writ petitions to be filed before the High Courts challenging the manner in which cases previously covered by NRO might be compromised by prosecutors seeking to favour powerful politicians and bureaucrats, the Supreme Court developed a novel administrative mechanism to ensure a degree of transparency.

Perhaps it is the transparency that is the cause of such unease!

Moeen H Cheema is an associate lecturer at the Australian National University (ANU). Mirza Shahzad Akbar is an advocate of the Lahore High Court.

Is presidential immunity for real?

Mirza Shahzad Akbar
Monday, November 09, 2009

The current debate surrounding the National Reconciliation Ordinance, its presentation before the standing committee of the National Assembly, the consequent uproar of major political parties within and outside Parliament, a possible rift between components of the ruling alliance, and, finally, the government’s decision to withdraw it from Parliament have raised serious legal questions.

In particular, it is being asked whether Article 248 of the Constitution grants immunity to the president from any criminal or civil legal proceedings. Is that really possible?

Sub-clause (2) of Article 248 stipulates: “No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office.” Repetition of this on TV news channels by the president’s protectors establishes an impression of absolute presidential immunity. However, logic and common sense cannot accept the notion of a ruler enjoying absolute immunity from prosecution despite any crime “whatsoever,” and getting away scot-free. Say, if a president commits murder, would he not be liable? We need to adopt a more nuanced interpretation of Article 248 of the Constitution and explore more deeply the whole notion of executive immunity.

The concept of immunity is not unique to the Constitution of Pakistan; it is present in most of the democratic constitutions in one form or another. The constitution of the United States furnishes one good example, and there have been some informative deliberations on this topic by the US Courts.

The archaic concept of sovereign immunity provided absolute immunity for the monarch on the basis that “the king can do no wrong.” In a democracy, however, the president is no longer the symbol of sovereignty, which, instead, is deemed to rest in the people. And, in any event, the doctrine of sovereign immunity applies to limit governmental rather than personal liabilities.

This does not mean that in a democracy a president is not eligible to any immunity. In fact, the presidency is a unique office which enjoys the greatest immunity possible in a modern state. The supporters of absolute immunity for the president of Pakistan advance this cause on two grounds, which are nevertheless recognised in most other republics. First, the head of state needs to work without any distraction and fear of being sued in a court of law, which enables him to conduct effective governance. Second, the separation of powers between the organs of state requires the various branches, in particular the judiciary, to stop interfering in the affairs of the other branches.

Interestingly, the subject of presidential immunity in Pakistan has not previously been under serious consideration. However, a good case study in this regard would be the constitutional jurisprudence in the United States, which like us has a written constitution and where presidential immunity has been the subject matter of some notable cases where the US Supreme Court elaborated on this issue.

The earliest decision of the US Supreme Court is Mississippi vs. Johnson in 1867, in which Chief Justice Marshall placed the president “beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial.”

Until 1974, this remained the established principle of absolute immunity and in 1974, in the case of Nixon vs. Fitzgerald, the Supreme Court elaborated further the concept of executive immunity. In this case, the president was sued in a civil suit and the US Supreme Court was asked to consider a claim by former president Richard Nixon that he enjoyed an absolute immunity from a former government employee’s suit for damages for his allegedly unlawful official conduct in office. The Court endorsed a rule of absolute immunity, concluding that such immunity is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.”

After Nixon’s case it was almost a settled principle that any act done by the president of while in office cannot be challenged for its ramifications in any court of law. However, an interesting diversion was made in a rather recent case of Clinton vs. Jones in 1997, concerning President Clinton. In it the Court declined to extend the immunity recognised in Fitzgerald to civil suits challenging the legality of a president’s unofficial conduct. In that case, the plaintiff, Paula Jones, sought to recover compensatory and punitive damages for alleged misconduct by President Clinton occurring before he took federal office. Her claim was of sexual harassment by Mr Clinton while he was governor of Arkansas and Ms Jones was an employee in his office. The president took the plea of absolute immunity and sought to pause the proceedings while he was in office. The district court initially denied the president’s motion to dismiss based on a constitutional claim of temporary immunity and held that the discovery of documents and evidence should go forward, but granted a stay of the trial until after the president left office. However, the Supreme Court rejected the claim of absolute immunity and permitted the civil proceedings to go forward against the president while he still occupied the Oval Office.

In considering the president’s claim of a temporary immunity from suit, the US Supreme Court first distinguished Nixon vs. Fitzgerald, maintaining that “the principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.” The point of immunity for official conduct, the Court explained, is to “enable such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. But this reasoning provides no support for immunity for unofficial conduct.”

As regards Pakistan, on the face of it the immunity granted to the president is absolute in criminal and civil proceedings while his being in office. However, in the light of US precedents and jurisprudence, whether this immunity extends to past acts and omissions is a question to be determined by the Supreme Court of Pakistan. Furthermore, the cases Mr Zardari was facing in the past were criminal, and not civil suits, and were not by any stretch of imagination official acts done by the president. Moreover, these criminal proceedings were for offences of the gravest magnitude.

It is also important to mention here that while looking at dicta rendered in superior court cases in Pakistan — in Zahoor Elahi vs. Zulfikar Ali Bhutto (PLD 1975 SC 383), Sadiq Hussain Qureshi vs. Federation of Pakistan (PLD 1979 Lahore 1) and Muhammad Anwar Durrani vs. Province of Balochistan (PLD 1989 Quetta 25) — it seems that in any event the protection granted to the functionaries of the state or the president under Article 248 does not cover illegal and mala-fide acts, because such acts cannot be deemed to be in pursuance of the law or in discharge of official functions.

The nature of the immunity granted under Article 248, whether absolute or not, temporary or permanent, is a debatable matter and cannot be declared resolved at the outset. The Supreme Court might have to carry another cross while adjudicating upon the validity of the NRO, and that will be the burden of resolving the issues surrounding presidential immunity from criminal actions committed in an unofficial capacity.

The writer is a barrister-at-law practising at the Lahore High Court

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