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