Presidential immunity is very limited in reality

17 03 2011

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.

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