The Pakistan Supreme Court, under Chief Justice Iftikhar Muhammad Chaudhry's feisty leadership, is setting new precedents in challenging presidential immunity granted under the Pakistan Constitution and laws. The case involving presidential immunity has dramatic consequences for Pakistan's seedy political culture that thrives on family legacies, arbitrary pardons, unresolved corruption cases, and lack of accountability. The case is also instructive for the larger Muslim world where rulers are brutal, have the Messiah complex, and assert willful powers to seek immunity from crimes they commit to perpetuate their hold on power.
As a general principle, modern states grant immunity so that the president can discharge state duties without threats of civil litigation and criminal prosecution. However, presidential immunity is far from absolute. Absolute immunity is no longer the law in most legal systems, including international law. No president ordering genocide, for example, can claim immunity. President Asif Ali Zardari is not accused of committing grave crimes. Yet, in light of his personal history and reputation for money laundering, Zardari makes a poor case to deserve immunity in what is known as the Swiss case.
The Swiss case is a money laundering case pending in Swiss courts against President Zardari and his wife, slain Benazir Bhutto. The case involves two Swiss companies that paid kickbacks and commissions to Zardari for procuring government contracts while Bhutto was the Prime Minister of Pakistan. In 1997, Pakistan requested the Swiss authorities that Pakistan be made a party in the civil suit against the Bhutto-Zardari couple since Pakistan is a lawful claimant to receive the laundered money. The request was granted. The Swiss court ruled against the Bhutto-Zardari couple and ordered them to return the laundered money to Pakistan. The couple appealed against the verdict.
While the appeal was pending, General Musharraf, under pressure from the United States, entered into an agreement with Bhutto to pave the way for general elections in Pakistan. Under the agreement, known as the National Reconciliation Ordinance (NRO), the Swiss case against the Bhutto-Zardari couple was withdrawn. After the general elections, Zardari replaced Musharraf as the President of Pakistan.
In 2009, the Pakistan Supreme Court, in an en banc decision of 17 Justices, declared the NRO unconstitutional. Consequently, the Swiss case halted under the NRO was revived. The Court ordered the Prime Minister, as head of the government, to send a letter to the Swiss authorities to reopen the case for final resolution. The Prime Minister, a staunch Zardari supporter, refused to write the so-called "Swiss letter", arguing that the President enjoys immunity under the Constitution.
The Supreme Court convicted the Prime Minster for refusing to obey the Court order and detained him for less than a minute while the Prime Minister was present in the Court. The Court later ruled that the Prime Minster, after conviction, was no longer qualified under the Constitution to remain a member of the Parliament and to hold the office of the Prime Minister. Zardari's political party that holds a coalition majority in the parliament elected a new Prime Minister. The new Prime Minister, another Zardari protégé, is unlikely to comply with the Court order, thus extending the immunity controversy.
Two distinct questions are related to presidential immunity. First, whether the president is entitled to immunity in the Swiss case. Second, whether presidential immunity bars the Prime Minister from writing the Swiss letter. The Supreme Court has not ruled on the first question because the government decided not to litigate presidential immunity. Therefore, the second question has become the eye of the storm.
In order to understand the second question, however, an understanding of the first question is illuminating. Article 248 of the Constitution spells out presidential immunity. Under the Article, the president is not answerable to any court for any act performed in the exercise of presidential powers. The president is immune from criminal proceedings, arrest warrants, and imprisonment. The president also enjoys limited immunity in civil lawsuits. A civil lawsuit, however, may be instituted against the president 60 days after a notice in writing, containing the particulars of the case, has been delivered to the president. Since the Swiss case is "civil proceedings in which relief is claimed against the president," presidential immunity is constitutionally unavailable six months after serving the required notice.
Legal experts may have told Zardari that he is not entitled to constitutional immunity in the Swiss case. Therefore, the Zardari government has constructed the national debate in terms of who decides the question of immunity. The government claims that the Executive and the Parliament, the institutions of elected representatives of the people, decide the question of presidential immunity. The Supreme Court, however, has ruled that the government must write the Swiss letter, assuming without deciding that Zardari is not entitled to immunity in the Swiss case. This institutional battle deepens the immunity controversy.
The Zardari government argues a losing case. Surely, all state institutions are guardians of the Constitution. No other institution but the Court, however, has the power of judicial review to strike down executive orders and statutes that the parliament passes. Under constitutional systems, neither parliament and nor government is above the law. The political slogan that "parliament is sovereign" is an artifact of the historical battle between the Crown and Parliament in England. The slogan has no value in modern states committed to constitutionalism and fundamental human rights.
Since the Pakistan Supreme Court is the final authority in interpreting the Constitution, its decisions are binding on the government. (In the United States, even a federal distinct judge, let alone the Supreme Court, may strike down a statute that Congress has passed.) If the president or his ruling political party were to exercise the final authority to determine presidential immunity, the executive abuse of power would be unchecked.
Though the Zardari government is relying on frivolous constitutional arguments to make its case, the Pakistan Supreme Court must nonetheless exercise judicial restraint. High courts armed with the power to challenge the government conduct themselves with utmost judicial restraint. They weigh every aspect of the case including its legal, social, economic, and political implications. For high courts, whether in the United States or Pakistan, law cannot be separated from morality, politics, economics, and other social conditions. High courts commission unified awareness in deciding cases. Their decisions are not simply legally sound, but also intelligent and wise.
The Pakistan Supreme Court has established a legal precedent that the Court may summon the Prime Minister to appear in person. To his great credit, the Prime Minister quietly left the office after receiving the notice of disqualification. This executive submission to the rule of law is exceptional in the Muslim world where rulers (Syria, Libya, Egypt) use tanks and guns to protect their regimes. The Pakistan Supreme Court has done well. However, it needs to pause before disqualifying another Prime Minister. The general elections are only months away. The people may vote against the ruling party and bring down President Zardari. That will be the end of his immunity. Wise courts develop a sharp sense of temporality. They can wait in patience to settle potentially anarchic controversies.
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“The past three years in the history of Pakistan have been momentous and can be accorded the same historical significance as the events of 1947… and those of 1971 … It is in this backdrop that these petitions have been heard and decided.” — Justice Jawwad S. Khawaja (NRO judgment)
THE Supreme Court judgment dated Dec 16, 2009 and Nov 25, 2011 in the Dr Mubashir Hasan & Others vs Federation of Pakistan & Others (NRO judgment) case has captured not only the public imagination but is also at the heart of the judicial conflict between the executive/presidency and the Supreme Court.
But why has this single case pertaining to alleged high-level corruption become so important? Is it simply because of the central presence of President Zardari in the judgment, and the consequences for his presidency and the PPP government if the NRO judgment is fully implemented?
In fact, this 'apparent answer' is misleading because the implementation of the NRO judgment will not lead to the removal of Zardari or his PPP government as the NRO judgment doesn't contemplate such a removal. Also, can't it simply be about the alleged millions of dollars? Because Zardari, like Thaksin, the former Thai prime minister, is willing to bet, and lose, millions of dollars in his quest for absolute political power? The mystery of the enduring centrality of the NRO judgment remains unexplained.
The importance of the National Reconciliation Ordinance (NRO), the NRO case and the NRO judgment lies in the fact that it is not simply about the law but also about the unfolding of history and competing visions of democratic constitutionalism which have emerged in the Pakistani political sphere since 2007.
The year, 2007, was like neither 1999 nor 2002. The dynamics of Pakistani politics demanded that some kind of a democratic transition took place that broke the absolute hold of the army-dominated political system. Musharraf knew this and the Americans wanted it.
Before the removal of the chief justice on March 9, 2007, Musharraf was in the driving seat to structure such a democratic transition and proposed the 'force model of democratic transition'. This 'force model' proposed the sharing of power between the army and the PPP but with Musharraf dominating. Before March 9, 2007, the PML-N was an irritant and the Supreme Court was not relevant because it posed no real threat.
After March 9, 2007, the judicial defiance of the chief justice and the superior court judges changed everything politically. The superior judiciary emerged as a judico-politico player in Pakistani politics and proposed the alternative 'law model of democratic transition'.
This 'law model' proposed the dismantling of the Musharraf regime through the courts and a democratic transition dominated by law and not political compromise. The PML-N was reborn and jumped onto the judicial band wagon. Benazir Bhutto was happy at the prospect of a weakened Musharraf but worried about the emergence of judico-politico power. Musharraf, of course, saw his political death.
It is in these circumstances that the NRO was negotiated between Musharraf and the PPP. The NRO proposed a third model i.e. the 'consent model of democratic transition'. This was 'individuals' reconciliation' as rightly recognised in the NRO judgment but the purpose of this consent model was threefold: a politically negotiated transfer of power to the PPP; keeping Musharraf politically alive; and restraining the growth of judico-politico power. This 'consent model' had the obvious effect: it offended the judiciary that saw it as an obstacle, and a betrayal of its own 'law model of democratic transition'.
Nov 3, 2007's emergency was a last failed attempt to reintroduce the 'force model of democratic transition' by Musharraf. And by not restoring the judges immediately after the resignation of Musharraf, the PPP government tried to dismantle the 'law model of democratic transition' and reinforced the 'consent model' minus Musharraf.
The purpose was obvious: dismantle judico-political power as an alternative and make politics and compromise, not the law, central to the democratic future of Pakistan. Justice Dogar guaranteed the judicial-executive illegal reconciliation; Chief Justice Iftikhar Chaudhry, and his fellow judges, sought to dismantle this illegal reconciliation.
This context of the battle between competing political visions of the 'law model' and the 'consent model', and the emergence of judico-politico power is the key to understanding the Supreme Court's condemnation of the NRO, and of the alleged corruption of the PPP in the NRO judgment.
With the PPP government in power and the presidency secured, the PPP government decided not to defend the NRO with the hope that the judiciary would simply forget about its 'law model of democratic transition'. But the NRO judgment provided an opportunity to the Supreme Court to reinforce the juridical-political reality that the 'consent model' would need to compete with the 'law model' in the democratic transition taking place in Pakistan.
It is precisely in this context of the battle of competing political visions that the Supreme Court is so rigorously pursuing the implementation of the NRO judgment.
Like the NRO deal and the non-restoration of judges, non-implementation of the NRO judgment is seen by the judiciary as a threat to it's judico-politico power and a threat to its desire to shape Pakistani democratic constitutionalism through its 'law model'.
Which model politically suits Pakistan? The above three models of consent, law and force, proposed by the politicians, the judiciary and the army, provide solutions to the three major problems facing Pakistan i.e. lack of compromise, lawlessness and violent anarchy. But for this to happen the political, judicial and military elites must understand that their respective visions can only build a strong democratic constitutional Pakistan if all three models shape the country.
The problem arises when any one of these models seeks to dominate, and dismantle, the others.
The writer is a lawyer.