On January 31, a leading English news daily carried a report on its front-page based on its reporter's interaction with some legal 'experts', who advocate that the remedy to the controversy over the immunity of the president "lies with the people of Pakistan through [his] impeachment by [the] parliament."
According to former Justice Tariq Mahmood, "even if corruption cases against President Zardari are re-opened, no process could commence to summon him to courts. This also applies even if money laundering cases are re-opened by the Swiss courts because then the question of sovereign immunity would come." His interpretation of the Constitution speaks volumes about the law-upholding character of the constitutional provisions.
Not only that, it also reflects on the wisdom of the honourable Gentlemen like former Justice Tariq Mahmood engaged in the business of applying the law, hopefully, in their struggle to build a truly law-abiding and accountable society. How else could such a profile of the society be assured unless total immunity was guaranteed to the president even if his/her conduct was questionable? What a self-deceptive hope it is!
How much respect for the Constitution will such interpretations thereof build among the masses isn't hard to imagine. In my view (and I hope I am dead wrong) such interpretations of the Constitution will create serious doubts about its sanctity because these interpretations make the Constitution visibly partisan in the treatment of the president and the citizens. Hopefully, such discrimination was not intended by the constitution makers.
According to the said press report, advocate Athar Minallah advises us to "refrain from dragging issues having political fallout [into] the courts because a situation like this tended to make the judiciary controversial." Defending the Constitution, he says "being an organic document, [it] must not be interpreted to suit certain interests;" what exactly does his reference to "certain interests" depends on your perception thereof.
If you take his view to imply that asking for accountability of the president in the ongoing debate suits "certain interests", and not national interests and national dignity, it's your problem; you should have your head examined. Seemingly, the message being conveyed by advocate Athar Minallah is that, even in a democracy, the president of the country is like the traditional king who is above the law that applies to his/her subjects.
Advocate Athar Minallah is forcefully seconded by former Justice Tariq Mehmood when, citing Article 248(2) of the Constitution, he is convinced that "no process of any criminal nature could be initiated against the president as long he was sitting in the presidency." If such immunity gives the president an imperial status, and in your perception the difference between monarchy and democracy begins to fade, again it is your problem.
Regarding the 'exalted' status of the president, citing Article 47(1) of the Constitution he explains that office holders subject to impeachment, are protected from legal accountability ie are immune from being dragged into courts even in criminal cases. By implication, crimes committed by them should be proved and punished by the parliament. If it elevates the parliament above the Supreme Court in interpreting the law, be it so.
According to the news report cited above, even advocate Salman Akram Raja, who recently pleaded against the NRO before the Supreme Court, said that the president enjoyed complete immunity from all kinds of criminal cases and that the July 20 judgement did not affect this protection. For the reporter, who filed this report, advocate Raja's view is particularly important because, impliedly, it concludes the debate.
For very strange reasons, the subject news report quoted only those legal experts that hold identical views. On January 30, I attended a seminar wherein former Justice Whajihuddin Ahmed said that Article 248 of the Constitution afforded the president immunity only against administrative acts committed by him during his tenure of office, and that such acts could only be politically controversial, not criminal in character.
Also, that while immunity is available to acts that could only be politically controversial and not criminal in character, the president has no immunity against acts allegedly committed by him/her prior to assuming the office of the president. Based on his interpretation of Article 248, Barrister Kahlid Anwar has expressed the view that while the president has immunity in criminal cases, he cannot enjoy this privilege in civil cases.
During the hearing of the civil cases against him/her, while the president may not be summoned to the courts of law in connection with the hearing of those cases, the president may at his/her discretion decide to participate in those hearings because the president has every right to defend himself/herself, and by treating him/her at par with every other citizen, the law gives the president this choice.
Former Justice Wajihuddin Ahmed's view of Article 248 is diagonally opposite to those offered by former Justice Tariq Mehmood and advocates Minallah and Raja. Besides, former Justice Ahmed's view also clarifies the limits of the immunity available to the president, and that commission of criminal acts is not protected by the constitution. Those who believe him will have a bit of their confidence restored in democracy and the Pakistan's Constitution.
Without doubting the sincerity of former Justice Tariq Mehmood and Advocates Minallah and Raja, it must be pointed out that their interpretation of the Constitutional provisions conveys the impression that they are favouring "certain interests" - something they advise the lobbyists for presidential accountability and the judiciary to avoid; sadly, none of these respected legal experts realises that he is committing the same error.
The more dangerous aspect of their reasoning is that by advocating immunity for the president that is not provided for by the Constitution, they are projecting the Constitution as a mechanism to perpetuate monarchy in the guise of democracy. Worse still, the immunity they advocate defies the tenets of Islam and their practice as manifested in the conduct of the Holy Prophet (PBUH) and the first four caliphs.
By doing so without meaning to do so, they are undermining the sanctity of the Constitution and the cause of democracy. Interpreting the law according to the needs of a client is one thing, but interpreting it without an assessment of its consequences for the nation as a whole are two entirely different propositions. Jurists and lawyers bestowed the reputation of being experts, must exercise care; they can build or destroy democracy.
Democracy always became the mechanism for perpetuating misrule and thus a target for the opportunists in khaki uniforms. To again give democracy the guise of a dispensation that protects the wrongdoers, and advance legal arguments in favour thereof would be a greater disservice to democracy than the many done to it by self-styled 'democrats'. Immunity is an outdated concept; the era of un-restricted accountability has begun.