The Supreme Court appears set to interpret Article 248 of the constitution with reference to the non-implementation of the NRO verdict and the president’s immunity.
The money belonging to Benazir Bhutto and Zardari was generated through kickbacks received from SGS and Cotecna, two Swiss companies hired for pre-shipment clearance in Pakistan.
In a judgement delivered in 2003, Swiss judge Daniel Devaud held that this money belonged to the people of Pakistan. After establishing money-laundering offences under Switzerland’s penal code, he ordered suspended prison terms for the defendants and asked them to pay restitution. In 2008, the Pakistani government withdrew from the case and it was dismissed in August 2008 as there was no longer a claimant of laundered money.
The Supreme Court, while declaring the National Reconciliation Ordinance (NRO) ultra vires and void ab initio in Dr Mubashir Hassan & Others vs Federation of Pakistan and Others, PLD 2010 SC 1, asked the government to revive the matter in Switzerland so that the money looted from Pakistani taxpayers and the masses could be reclaimed.
In the concluding part of his judgement, the Swiss magistrate mentioned that in its judgment of April 15, 1999, the Lahore High Court sentenced the defendants to five years’ imprisonment and $8.6 million in fines. But on April 6, 2001, the judgment was annulled by the Supreme Court of Pakistan and the case sent back to the first judges for a new decision. It is strange that from 2001 till the time of issuance of the NRO, no decision was taken by the court despite clear instructions from the apex court. In its judgement in Dr Mubashir Hassan & Others vs Federation of Pakistan & Others, PLD 2010, the Supreme Court did not touch the issue of delays by the lower courts in deciding this important matter even after the lapse of nine years.
The Swiss court, after considering the evidence, held that “precautions taken by Mr Asif Ali Zardari in concert with Mr Jens Schlegelmilch in order to keep the concluded agreement secret clearly demonstrate that he was aware of its illicit character.” He categorically concluded that the accused were “acting in a criminally reprehensible manner” to grab considerable sums in the sole private interest “at the cost of the Islamic Republic of Pakistan.”
In the light of above findings of the Swiss court, the defenders of Asif Ali Zardari must reconsider their stance of unqualified immunity under international law. Under the “doctrine of restrictive sovereign immunity,” no such immunity is available where financial crimes are committed through contracts signed by states or their agencies. In fact, international law prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies, or with regard to property taken by a foreign sovereign in violation of international law.
Apart from purely legal and constitutional questions, there is the question of public sentiment.
A large section of the public views the president as corrupt. It wants his ill-gotten gains to be returned to the national exchequer, justice to be done, and the presumed guilty penalised. This obviously translates to a hope on the part of some that Article 248 is either struck down or at least interpreted in a manner that the current president can be prosecuted.
The two sets of arguments challenging the concept of immunity (as enshrined in Article 248) are rooted in fundamental human rights and principles of equality in Islam, and argue that Article 248 contravenes both by legalising inequality.
The logic of and desire for equality and justice are justifiable and need neither further elaboration nor advocacy. On the other hand, the wisdom of immunity for certain offices needs further exploration so that people might take a more considered view before reaching a judgment on whether or not they would like the president of Pakistan to be immune from criminal proceedings whilst in office.
First, there is the historical context to consider. Victimisation through false criminal cases is a matter of record inPakistan; it is easy to institute such cases based on the relative power of the two parties involved.
Democratic forces in Pakistan have always been weaker than the military establishment, and without the immunity clause political governments will become even more subordinate to the establishment, and be prone to destabilisation via the legal route.
Certain mala fide clauses in Articles 62 and 63 inserted into the constitution by Gen Ziaul Haq also aim to do just that. Apart from being subjective in nature (”, ‘sagacious’ and ‘morality’ etc being subjective terms), and making the judiciary the final arbiter of the moral character of elected representatives, it targets only representatives of the people. The same lofty character requirements do not apply to either the military or the judiciary, or to schoolteachers or mosque for that matter.
However, the security establishment has kept democratic forces so weak and under pressure, and the public so hoodwinked on selectively applied supposed Islamic injunctions, that the people’s representatives have not been able to undo even these outrageous piece of legislation.
Articles 62 and 63 may be used anytime to disqualify any legislator and thus thwart the people’s will. True, Pakistani politicians are not angels, but then neither are those belonging to other institutions of the state.
Yet the superior judiciary could serve as the final arbiter of the moral character of public representatives to disqualify them. Hence, it can be argued that a repeal of Article 248 could serve to tighten the same noose around democracy.
Article 248, especially read with Article 47, is a democracy-strengthening law that serves on the one hand to protect the will of the people from undemocratic onslaughts, and on the other encourages them to exercise their democratic duties with responsibility.
First, the immunity implies a warning to public representatives to consider seriously before voting a candidate into office, for once he is voted in he must remain unencumbered by criminal charges (potentially spurious and/or politically motivated) to carry out his duties for the duration of his office.
It prods them to take their democratic responsibility seriously, or bear the consequences – a fundamental aspect of genuine democracy.
Second, the provision to impeach (Article 47) provides the people with a means to rectify any lapse of judgment, or address any new circumstances, and remove the president. Clearly, if the president is impeached for suspicion of criminal culpability, he can immediately be taken to court after removal from office.
The five-year term of the president can be abrogated only through the will of the people. This is a precious preserve of the people that must not be given up.
To argue to excise Article 248 from the constitution is to argue for people to abdicate this right of theirs to the courts. It is a fact of Pakistani history that courts have endorsed the military’s attacks on the constitution and on democratic governments, thus on the political will of the people.
When the military brought criminal cases against ZA Bhutto, and Nawaz Sharif, the judiciary complied with alacrity (even today, memogate comprises treasonous allegations against both, the elected government and the ISI, but the courts are investigating only the role of the democratic government).
It’s a lazy, irresponsible and unwise polity that asks courts to decide on the eligibility of its representatives, instead of reserving and exercising this right and responsibility.
Thus, a polity too politically naïve to see through sophisticated manoeuvring to usurp its democratic rights under the garb of justice or religion would be doomed to autocratic rule with weaker accountability. The people can hold their representatives accountable through their vote. But they cannot vote out any military or judiciary that strays from democratic ideals.
The wisdom in Article 248, then, is that apart from protecting the will of the people by making them the arbiters of whether their president is to be ousted, it forces the public to become an active participant in the democratic process and discharge its democratic duty to effect change (via Article 47) – thereby nudging the democratic mechanism towards a more mature process, and away from being a façade mired in litigative intrigue.
Article 248 is one of those provisions of the constitution that seek to balance power between the people and a judiciary that might be manipulated by undemocratic forces. It needs to be recognised that certain clauses of Articles 62 and 63 are the ones that are discriminatory, unjust, and undemocratic in nature and in need of repeal, not Article 248.
The questions of Immunity to President Zardari and interpretation of Article 248 is now likely to be focused in the contempt proceedings against the PM Gilani, as after the judgment of NRO, there is indeed an ambiguity concerning immunity of President Zardari under Article 248 and SC is the right and proper forum for interpretation of Article 248, as to what extend the President enjoyed immunity
Whereas the President, Prime Minister and Law Minister are openly saying that President Zardari under Article 248 has a free license to do any thing he likes and no Court can summon him and opening of Swiss cases as directed by SC in NRO cases is against the spirits and meanings of Article 248.
The troika of President, PM and Law Minister are assumingPakistanas a monarchy state which is not true. Neither President Zardari nor his co-accused has any immunity under Article 248 for corruption cases against him either with accountability courts here inPakistanor inSwiss Court in Switzerland.
The critics are of the opinion that Article 248 does not give a free license to President to do anything he likes. Various SC judgments have interpreted Article 248 to restrict its boundaries and conditions.
They argue that if the president kills a human being” or is involved in a criminal cases of a heinous crimes” or involved in a criminal case of moral turpitude or involved in massive corruption cases or if he openly commit an act of High Treason under Article 6 and abrogates or subverts the Constitution, then he should not be protected under Article 248.
If it is accepted that President has a free license to do anything he likes than the whole Constitution of Pakistan becomes nugatory and redundant and this is against the basic spirit of the Constitution of Pakistan.
In China, for instance, which is a secular and non-religious state, neither its President nor Prime Minister has the immunity not to appear in any Court of law.
In China, vide its Article 41, the citizens of the People’s Republic of China have the right to criticize and make complaint to any state organ or functionary and courts are bound to summon and redress their complaints.
Under Islam, Holy Quran and Sunnah, not even caliphs or any rulers or persons have the right of immunity and protection as now allowed to certain extent in Article 248 of the Constitution, which, otherwise is a Muslim country known as the Islamic Republic of Pakistan.
In recent times, international law has continued to move towards a restrictive doctrine of sovereign immunity. Until the 20th century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states. After World War I, the traditional rules of sovereignty placed the private companies of free enterprise nations at a competitive disadvantage compared to state-owned companies from socialist and communist countries, which would plead immunity from lawsuits. European and US businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies. This situation led courts to reconsider the broad immunity and adopt, instead, a doctrine of restrictive immunity that excluded commercial activity and property.
Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties. In 1952 the US Department of State decided that in considering future requests for immunity it would follow the shift from absolute immunity to restrictive immunity. In 1976 the US Congress passed the Foreign Sovereign Immunities Act (28 USCA § 1601, et seq.) to provide foreign nations with immunity from the jurisdiction of US federal and state courts in certain circumstances. This act, which strives to conform to international law, prohibits sovereign immunity with regard to commercial activities of foreign states or their agencies, or with regard to property taken by a foreign sovereign in violation of international law. Customary international law has continued to move towards a restrictive doctrine.
In the Swiss case, the issue was retrieval of ill-gotten money from contracts signed by the government of Pakistan with the Swiss companies. It has nothing to do with Article 248(2) of the Constitution. In its NRO judgement, the Supreme Court did not ask the government to write for the president’s criminal prosecution in Switzerland. It only directed that the unlawful letter written by the-then attorney general be revoked. The questions that arise following the unlawful letter are: Who took away the unfrozen money? Is Article 248(2) meant for protection of plunderers of national wealth lying outside Pakistan?
The UK, from where we inherited our legal system, drastically altered its position on sovereign immunity through the Crown Proceedings Act, 1947, that made the government generally liable, with limited exceptions, in tort and contract. Even before, it was possible to claim against the Crown with the attorney-general’s fiat (i.e., permission). This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown, as a matter of course, paid up). Further, mandamus and prohibition were always available against ministers because they were derived from the prerogative.
Article 248 cannot be interpreted the way it is being done by official quarters. If the president enjoys unqualified immunity from criminal acts, then he can escape punishment under Article 6 even after subverting the supreme law of the land. The ouster provisions of the Constitution, like Article 248, cannot be interpreted to condone any action that is violative of the supreme law of the land or constitutes a crime under international law. Money-laundering is a heinous crime under the international convention of the United Nations, of whichPakistan is a signatory. No head of state can claim immunity under any international law or convention if guilty of money laundering.
Immunity provided in Article 248 should not extend to illegal or un-constitutional acts. President is bound to obey the Constitution and law under Article 5(2) of the Constitution which is basic obligation of every citizen.
Filed under: Asif Ali Zardari, Politics of Pakistan | Tagged: Asif Ali Zardari, Pakistan, Pakistan Constitution Article 248, Pakistani Politics | Leave a Comment »
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President Asif Ali Zardari is already one of the richest persons in Pakistan but his hunger for more wealth is insatiable. The new Bilawal House in Bahria Town Lahore worth more than Rs 5 billion, a bullet proof bungalow built on over 200 kanal of land, is yet another proof.
A bunker and basement constructions are also there for security purposes.
