The Hon’ble Supreme Court’s verdict on the NRO case in December 2009 and its rejection of the government’s review petition, thereby upholding its original decision has restarted a debate whether the president of Pakistan enjoys immunity in cases involving foreign and Pakistani courts jurisdictions? The debate has been often confusing as leading legal eagles are equally divided on this issue, with eminent jurist Aitzaz Ahsan holding the view that the president enjoys blanket immunity for criminal proceedings under Article 248 of Pakistan constitution as well as under the principle of Head-of-State Immunity under the international law. Leading lawyer Mr. Akram Sheikh and others disagree arguing that the president’s immunity under the constitution is conditional at best and may be waived off both at home and abroad. Furthermore, the fact that no settled legal interpretation or precedence on Article 248 exists in Pakistan and other common wealth countries especially India, from whom we borrow so much in the legal field, further confuses the issue in the minds of concerned Pakistanis. In short, there is dearth of jurisprudence on the issue of Head-of-State immunity.
The scope of this article is to explore what is the principle of Head-of-State Immunity both under the Pakistani constitution and international law regimes. Most importantly, why such a principle or privilege exists both in Pakistan and abroad, and whether such a principle can be waived off or revoked. This article also discusses in brief the prevailing legal thought in Switzerland. However, what this article does not purport to do is to predict the fallout on our political system in case this immunity is surrendered by Parliament or struck down by the Supreme Court. Prediction is often a risky business.
What is the principle of Head-of-State Immunity?
The principle of Head-of-State Immunity stems from the idea of state sovereign immunity. Historically, international law recognized a principle of absolute immunity for foreign states, under which no state could be put on trial without its consent. This was based on the premise that all states are independent and equal under international law, and the idea that subjecting a state to a foreign court’s jurisdiction would negate this idea of sovereign equality. Since the head of the state was one of the guises of the state, therefore, he too, was immune. Or in other words, the state and its ruler were one and the same. Historically a monarch was absolute in exercising his powers over his realm. He could do no wrong and was the source of all the laws in his kingdom. All laws were posited in his name. The principle of Head-of-State Immunity flows from this accepted political and social norm as well.
Why does it exist?
The principle of Head-of-State Immunity exists simply to preserve the prestige of the thrown in case of monarchies and presidency in case of a republic. Moreover, it is intended to provide a stable and smooth platform both for the king and the president, as the case may be, to exercise their executive powers, without any hindrance. Simply put, the immunity exists since it is important for the exercise of his executive powers, evident from the Arrest Warrants case at the International Court of Justice.
Why does it exist in Pakistan?
While the founding fathers of Pakistan intended the new born state to be a republic and not a monarchy, the intention in the minds of the framers of the 1973 Constitution while enacting Art. 248 was to preserve the prestige of the office of the president as well as smooth functioning of the executive powers of the president. It should be understood that the provisions contained in Art. 248 and its sub-clauses are not unique in the sense that every constitution to some degree protects its head of state from court proceedings at least while the head of state is still in power. For example, the president of India under Art. 361 of Indian constitution enjoys immunity in criminal proceedings. Even today, in constitutional monarchies like Britain, all the laws are posited in the name of Queen, the head of the state of United Kingdom of Great Britain and Northern Ireland. Although, she is legally obliged to work in tandem with her cabinet and does not enjoy unbridled powers over her kingdom, she nevertheless enjoys full immunity from both civil and criminal proceedings at home. The president is not the source of law in Pakistan but being the head of the state he stands up and above petty party politics and represents the federating units. He represents the state of Pakistan as one of the guises of the state, hence the immunity, albeit in criminal proceedings only.
Can this principle be waived off or revoked?
Such a question always arises because this principle stands directly opposite to the fundamental principle of “all citizens are equal before law and are entitled to equal protection of law” as enshrined in Article 25 of our Constitution. In theory, the Parliament can amend Article 248, stripping the president of immunity in criminal proceedings. But given the present political composition of Parliament, it is hardly likely. However, the Supreme Court can strike down this immunity as enshrined in Article 248, inter alia being repugnant to the spirit of the 1973 Constitution and/or in direct contrast with principles of Islam, equality before law being one, enshrined in various examples from the Islamic history, for example when Caliph Omer (R.A.) was called before the judge as a respondent. While the principle of immunity may stand on thin ice at home, it is a different story abroad.
Immunity is a powerful concept in international law. In the US, a district court in the state of New York in the Tachiona case (Tachiona v Mugabe) dealt with torture and civil action against the Mugabe regime for having tortured Tachiona’s family in Zimbabwe. The court held that a sitting head of state has immunity from criminal and civil proceedings abroad. Here it is only prudent to take cognizance of the prevailing legal environment in Switzerland regarding the issue of Head-of-State Immunity. The Swiss recognize that the immunity of a head of state is a principle embodied in customary international law. In a decision given by Swiss Federal Supreme Court, the highest court in Switzerland, in a case involving the former dictator of Philippines, Ferdinand Marcos, the Court was of the opinion that such principle of customary international law may be weakened when either the state itself expressly waives the immunity of its head of state, or when the head of state leaves office. In Pakistan, both of these conditions do not apply to President Asif Ali Zardari. It can be safely assumed that he will be immune from any prosecution, especially regarding criminal cases at the least till 8th September, 2013 (he took oath of office on 9th September 2008). However, the case of former Chilean dictator Gen. Augusto Pinochet is often cited as an exception to the universal principle of Head-of-State Immunity. But it must be remembered that facts of Pinochet case and of President Asif Ali Zardari are entirely different. The former was charged for crimes against humanity, war crimes, torture and genocide, etc. Such crimes are listed in Art. 7 of the Rome Statute of the International Criminal Court (ICC). Further Art. 27 of the Rome Statute holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the ICC from exercising its jurisdiction. The statutes of the International Court of Justice and the International Criminal Tribunals for former Yugoslavia and Rwanda makes provisions for a head of state not to have immunity in the case of war crimes. The Rome Statute therefore stands opposite to customary international law. Meanwhile, the later is accused of money laundering, not a crime against humanity under the ICC Statute and other international law regimes. Comparing the two cases will be equivalent to comparing apples and oranges. Money laundering has lately been identified as an international offence, but it is not considered serious enough of an offence to prosecute a head of state in a foreign court, especially while he is still in power.
While the president of Pakistan may stand on thin ice vis-à-vis immunity in criminal proceedings at home since it has been challenged in the Supreme Court, nevertheless he enjoys protection due to customary international law under the principle of Head-of-State immunity abroad at least while he occupies the presidency.
