In the wake of what is being hailed as a landmark verdict that has the potential to redefine Pakistan's political parameters forever, one cannot help but wonder what the future holds in store for us. On Wednesday, the Supreme Court of Pakistan in an attempt to safeguard the Constitution of Pakistan declared the National Reconciliation Order (NRO) null, void and unconstitutional, reverting the status of all cases annulled under the NRO back to the pre-October 2007 position.
The 17-member bench of the Supreme Court, headed by Chief Justice Iftikhar Chaudhry, further pronounced that all cases pending in foreign countries including Switzerland be revived immediately.
The implications of this 18-page long, 'short verdict' seem to spread far and wide, but it seems inevitable that the debate to be reignited in the near future is, whether the President of Pakistan has blanket immunity from all criminal and civil liability under the Constitution? Surprisingly, the Supreme Court in their verdict did not directly touch upon the issue of immunity; perhaps this issue will be clarified in the detailed judgement that is still to be unveiled.
Legal experts seem to be divided in their opinions on the question of immunity. On the one side of the fence stand the likes of Barrister Aitzaz Ahsan and former Justice Fakharuddin G. Ibrahim stating that President Asif Zardari enjoyed immunity under Article 248 of the Constitution of Pakistan for the cases pending against him and he could not be summoned in court while he held the office of the President. On the other hand, former Justice Tariq Mehmood stated that the President could and would have to appear before the court.
It seems only appropriate then to analyse what Article 248 of the Constitution of Pakistan states. Article 248(1) states that, "The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions"
It is clear that this provision provides very little protection to President Asif Zardari, given the fact that most of the cases now pending against him were initiated against him prior to his being elected to the office of President. The offences and acts allegedly committed by President Zardari were not conducted during his term of office and therefore, cannot fall under the ambit of 'exercise of powers and performance of functions of office'.
Article 248(2), however, does provide blanket immunity stating that, "No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office". This places a restriction on the courts to initiate proceedings against President Zardari whilst he holds the office of the President and it seems then that the cases pending against President Zardari shall continue to do so until he is either disqualified, resigns, or completes his term in office.
Such a predicament provides little incentive for the President to resign. This inevitably sparks a new debate of whether President Zardari and other beneficiaries of the NRO should be disqualified from public office by virtue of this landmark decision of the Supreme Court under Article 62 and 63 of the Constitution of Pakistan.
However, it should be noted the Constitution of Pakistan remains applicable only within the geographical limitations of the borders within which it was promulgated. It places no restriction on foreign courts, such as that of Switzerland, from initiating or continuing criminal or civil proceedings against President Zardari. Clearly, the Constitution cannot protect the President from all international laws and the jurisdiction of International courts as well.
Article 248(4) outlines that, with reference to civil proceedings, relief can be claimed against the President during his term of office in respect of anything done by him in his personal capacity, whether before or after he enters upon his office if, sixty days before the proceedings are instituted, notice in writing is delivered to him in the manner prescribed in law.
The Article goes on to describe the procedural details of what must be included in the above-mentioned 'notice'. It is evident then that Article 248(4) categorically provides the mechanism of initiating civil proceedings against the President for acts that he committed in his personal capacity before being elected to office. Upon literal interpretation of this constitutional law some clarity prevails, at least with reference to civil cases to be initiated or pending against President Zardari.
To sum up, it is re-emphasised that the Constitution of Pakistan must be upheld in letter and in spirit. It provides the framework for the rule of law, democracy, separation of powers, distribution of sovereignty and accountability. In Chinese superstition the worst curse that can be placed upon a person is to curse them by saying, 'may you live in interesting times'. I shall let the readers determine whether the Chinese curse has been inflicted upon our nation or not.
(The writer is a senior lawyer)
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