Question of presidential immunity still undecided

The legal team of the federation has so far failed to get a Supreme Court judgement on whether President Asif Ali Zardari has immunity under Article 248 of the constitution, except verbally claiming that the president enjoys immunity under the constitution. In various cases involving President Zardari, the Supreme Court has repeatedly given clear hints that immunity for President Zardari is still an undecided issue and anyone seeking it would have to come to the Supreme Court for a judgement. The court has also observed on various occasions that the constitution does not give blanket immunity to anyone. However, the federation’s legal team has not yet asked the Supreme Court for immunity.
The issue of immunity was first raised by former National Accountability Bureau (NAB) chairman Nawid Ahsan before the Supreme Court while appearing in a case, wherein a NRO beneficiary Ahmed Riaz Sheikh was restored to his position in violation of the court verdict in the NRO case. Ahsan had told the court that since the president enjoyed immunity, some decisions of the apex court on the NRO could not be implemented so far. He had hinted towards the court orders to reopen Swiss cases against President Zardari.
However, the court had admonished him, asking him why he was pleading the case of the government or the president. “No one has come to us so far to get a verdict on whether anyone enjoys immunity,” the court had observed. The exchange on the immunity issue had unleashed a storm in the media and almost every television channel had judicial and legal experts discussing the pros and cons of the court’s remarks, some speculating whether the Presidency and the chief justice were heading for a collision, which might shake up the entire system.
At that time, most legal and constitutional experts had believed that the president had immunity in the NRO case, however some were of the view that the NRO judgement did not recognise any immunity for any of the NRO beneficiaries, including President Zardari. However, at the same time almost all the noted constitutional experts were of the view that if the president considered himself immune from prosecution, he would have to claim it before the court.
On many occasions, the Supreme Court left no doubt that it was the court that had to decide whether the president should be given immunity. In the past, the Supreme Court had denied constitutional immunity to former president Pervez Musharraf. The NRO judgement had subtly rejected this extraordinary treatment to an individual or a group of persons by referring to the principle of equality as enshrined in the teachings of Islam. A 13-member Supreme Court bench headed by Justice Khalilur Rehman Ramday had refused to allow immunity to Musharraf in the chief justice suspension case decided on July 20, 2007.
According to some legal experts, the Supreme Court in its February 19, 2010 detailed judgement on the NRO had deprived President Zardari of immunity. Thus, now the president will have to persuade the court if he seeks immunity. They said although the detailed judgement did not separately discuss President Zardari, but like other accused all his corruption cases, both within Pakistan and outside, stood reopened.
The court ordered reopening of “all” the cases, both within Pakistan and outside, closed under the NRO besides directing NAB and other authorities concerned to freeze the assets of all concerned, as was the position on October 5, 2007, the promulgation date of NRO.
Now the memo issue has once against spotlighted the question of constitutional immunity to the president. According to renowned lawyer Fakhruddin G Ebrahim: “No malicious and invalid act of any public office holder can be condoned merely because of Article 248 – the constitutional provision dealing with the immunity of public office holders.”
He said there was no dearth of Supreme Court decisions where the constitutional immunity was exempted in cases where the public office holders were found to have acted maliciously and invalidly.
It is interesting to note that Aitzaz Ahsan, Hamid Khan and Fakhruddin G Ebrahim had vigorously fought against the constitutional immunity that Sharifuddin Pirzada and Malik Qayyum had sought from the court in favour of Musharraf during his dictatorial rule.
Both Aitzaz Ahsan and Hamid Khan, citing the example of Hazrat Umar (RA), who was questioned for his Abaya (long shirt), had said if the second Caliph of Islam could be questioned then why not the president of Pakistan? Justice Ramday had observed that the president was not above the law, and the same was pressed by Ahsan.
Citing two cases from the US judicial history, United States versus President Nixon and President Clinton versus Jones, Hamid Khan had recalled that the two presidents of America had also claimed privilege, but the US courts had interpreted the laws in a different way, contrary to what was being asserted. Hamid Khan in his arguments had also referred to Maulana Shibli Nomani’s book Al-Farooq and said Hazrat Umar (RA) had appeared before a qazi 10 times.
Now the onus is on the president’s legal team to argue before the court to prove that Zardari enjoys legal or constitutional immunity or exemption, so he cannot be tried under any criminal offence during his term in office.
The legal status of a commission headed by Justice (r) Javed Iqbal, which is probing the May 2 Abbottabad incident, is still under question as well despite the fact that it is set to finalise its probe by the end of this month.
A nine-member larger bench of the Supreme Court headed by Chief Justice Iftikhar Muhammad Chaudhry in its December 19 order in the memo case had asked Attorney General Maulvi Anwarul Haq to present a copy of the notification in pursuance of which Justice (r) Iqbal was appointed chairman of the commission without consulting the chief justice.