The immunity mystery
“ALL things are subject to interpretation; whichever interpretation prevails at a given time is a function of power and not truth.”
— Friedrich Nietzsche
Whether President Zardari has immunity/exemption from all civil and criminal proceedings in courts within and outside Pakistan is a central political and constitutional question at the heart of the present conflict between the PPP political elite and the superior judiciary.
In the continuing public debate about presidential immunity, there are two schools of thought.
The ‘political school’ argues that it is an undeniable fact that under Article 248 of the constitution and international law the president has immunity both in national and foreign courts. The ‘legalist school’ contends that the extent of presidential immunity is limited and there is no obstacle to the prime minister writing the letter to the Swiss authorities to revive the cases/claims.
However, as explained here, the confusion over presidential immunity is primarily not the result of ‘wrong’ interpretations but because the interpretation of presidential immunity is yet to be ‘interpretationally constructed’. In short, nobody at present knows what presidential immunity conclusively means — the concept exists but its meaning is yet to be fully born.
A cursory look at Article 248 points to this interpretational minefield. It comprises four separate clauses. Clause (1) of Article 248 confers immunity/exemption to the president from Pakistani courts only in relation to his official acts performed in good faith.
Clause (4) of Article 248 actually allows civil proceedings to be initiated against the president for past and present personal actions subject to giving him 60 days’ advance notice.
But what about clauses (2) and (3) of Article 248? Under these clauses, no criminal proceedings, whatsoever, can be instituted or continued, or process for arrest or imprisonment can be issued, against the president in any court during his term of office.
Yes, no pending criminal case against Mr Zardari, instituted prior to his becoming president, can be continued during his presidential term nor can any new criminal case be instituted against him during this time.
Still, this presidential immunity seems limited. Most importantly, this presidential immunity is limited to Pakistani courts because the Pakistani legislature cannot provide for presidential immunity in foreign courts. The power of any national legislature is limited to the courts of its country.
Even otherwise, if the Pakistani legislature were foolish enough to legislate for the Swiss courts, why would a foreign state and its courts regard the provisions of the constitution of Pakistan as binding on them?
But what about international law e.g. Convention on the Privileges & Immunities of the United Nations and the Vienna Convention on Diplomatic Relations etc.?
The question here is not whether the president has immunity under international law but which institution in which country will decide this issue. Again, surely, the Pakistani government, or even the Pakistani Supreme Court (SC), cannot decide whether the Swiss authorities or courts should grant immunity to President Zardari.
Why would the Swiss authorities or courts consider the opinion of the Pakistani government or the judgment of the SC as binding on them? As judgments of the US courts in the Mugabe (President Mugabe of Zimbawe) and Zemin (then president Zemin of China) cases show, it is the foreign courts themselves which decide the issue of immunity of heads of state.
But unlike the political and legalist schools, I don’t believe that there is any obvious meaning of presidential immunity, which is merely to be discovered by the Pakistani Supreme Court.
Knowledge is power because judicial power, by giving constitutional meanings, creates systems of politico-constitutional knowledge, which in turn structures political power. Therefore, the SC’s monopoly over the power to interpret the constitution empowers it to create the meaning of presidential immunity under Article 248 and under international law.
The issue isn’t whether or not the SC’s interpretation of presidential immunity is correct but that it has the monopoly to interpret conclusively, rightly or wrongly, what presidential immunity means. Even when it is wrong in its interpretation, it is the SC itself which decides on its misinterpretation.
What will be the parameters which structure, or guide, the SC’s interpretation of presidential immunity?
Firstly, the language of Article 248 and international law and various court judgments interpreting these legal norms.
Secondly, as lawyer Muneer A. Malik rightly points out “judges realise their real strength comes from moral authority with the people”. So, the SC will take into account the public perception about President Zardari and presidential immunity in its interpretation.
Thirdly, the issue of eradicating corruption is a strategic tool of judicial governance utilised by the SC, which is being used to reform the Pakistani state through the judicial process. The fact that presidential immunity is being used as a shield to protect allegedly corrupt acts by President Zardari will effect the SC’s interpretation.
Fourthly, whether President Zardari is given full or limited presidential immunity will also depend on the political fight-back.
For example, when the prime minister says that he will implement the constitution, and not the SC judgment, what he is really doing is questioning the monopoly of the SC over constitutional interpretation. Therefore, the balance of power between the political and judicial elite will play a critical role.
But this constitutional conflict is not simply about presidential immunity; it is about how Pakistan is to be governed, whether by laws and rules or political consent and compromise. Only political and constitutional battles can resolve these issues as no readymade or instant solutions are provided in the document called the constitution.
The writer is a lawyer.