On presidential immunity
by
Javed Hafiz |
President Asif Ali Zardari is in the eye of storm once again. Supreme Court is asserting itself to get its verdict of December 2009 on the National Reconciliation Ordinance (NRO) implemented. The Ordinance had benefited a large number of people including President Zardari. The Supreme Court had struck down this infamous legislation, ab inito. The ordinance promulgated by General Parvez Musharraf, had not only ‘dry cleaned’ Zardari and Benazir but also paved way for their return to Pakistani political scene.
With NRO gone, the question was whether President Zardari could be proceeded against in courts of law in Pakistan and abroad. An immediate answer was in the negative since he had become the president and enjoyed immunity under article 248 of the Pakistani constitution.
But is immunity an automatic privilege? The answer is again in the negative. To be made effective the immunity has to be invoked. For example the public and private sector employees have a right to annual leave. But they cannot proceed on leave unless they formally apply for it. Even after a formal application for leave has been submitted the right does not become effective unless the application has been formally approved and notified by the competent authority. Therefore, the presidential privilege of immunity cannot be taken for granted.
Pakistanis went through another political drama last week. The government was to tell the Supreme Court whether it had implemented the court decision regarding the NRO. A crucial element of that decision was the withdrawal of a letter written by the former Attorney General to the Swiss authorities to close cases against Zardari and his spouse. When NRO was struck down by the court, this letter also became invalid. The skeletons in Zardari’s Swiss cupboards started rattling once again. For 10 months the government protracted taking the plea of presidential immunity.
Last week PM Gilani tried to politicize the matter saying that only the parliament could revoke presidential immunity. “On one hand we ask the US authorities to send Dr Afia Siddiqi to Pakistan and on the other we are asked to hand over our President to the Swiss authorities,” remarked Gilani. He said time and again that he would sign a summary prepared by the Ministry of Law that any letter to the Swiss authorities regarding Zardari cases could not be written as he enjoyed immunity. This was a red rag for the Supreme Court.
But is presidential immunity absolute? The answer is once again in the negative. It started as an absolute privilege in the Middle Ages but has undergone a sea change since then. “King can do no wrong” was the principle that led to the notion of immunity. Most modern democratic constitutions have retained this concept but only with a view to facilitating the functions of a head of state. When President Emmanual Noreiga of Panama was found smuggling narcotics into the United States, he was indicted. The US authorities argued that smuggling narcotics was not a presidential duty!
Recent prime ministerial statements and heated media discussions created lot of hype. People expected fireworks last Monday. Public mood reflected a strange mix of anticipation and apprehension, depending on which side of the divide you stood. Those who wanted the Gillani government to fall thought that the court would convict him for its contempt. Those who wished political stability in the country feared a period of turmoil and horse trading after Gilani government’s fall. Both sides behaved wisely to avert a show down. The government requested some extra time and the court graciously granted it. Prophets of an impending doom were disappointed, yet again.
The same day, people witnessed a very important but rather peculiar meeting in Islamabad. General Kiyani, the army chief was called to Islamabad to meet the president and the prime minister. After their 90 minute meeting, the presidency issued a statement that the army chief had assured full support for the democratic process. I did not like this meeting one bit. Timing of the meeting was terrible. It was arranged by a rattled political leadership to tell the public at large that all was honky dory as army was behind it. While the army chief seemed composed and relaxed, his “political bosses” could hardly hide their anxiety through contrived grins.
President Zardari’s past will continue to haunt him unless there is full consensus at home and abroad that he was immune, for ever. That is not going to happen. He is more afraid of his cases abroad than at home. When the government writes a letter to the Swiss authorities to withdraw earlier request, he will have to face court cases as soon as he relinquishes office.
Pakistan faces multiple challenges today. The problem is that we have, at this critical moment in our history, a mediocre leadership worried about its survival. Zardari’s past baggage has become a liability for Pakistan. It hurts Pakistan’s external assistance as donors are very cautious. It also hurts Pakistan as Zardari is handicapped with these cases as his Achilles Heel. While the leaders certainly are not up to the challenge, our best bet right now is to continue with what ever democracy we have and a change, if any, should be within the constitutional parameters. If we make this corrupt and inept leadership martyrs through an unconstitutional change, they will get re-elected and haunt us for five more years.
(Javed Hafiz is Pakistan’s former ambassador to the Sultanate) |
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