The Supreme Court of Pakistan has received a considerable amount of criticism based on its fast-track hearings on Memogate, despite the announcement that the Parliament would be taking action on the matter. There are certainly procedural misgivings in the Court’s acts considering Chief Justice Chaudry is ignoring the constitutional limits on the power of the courts. However, the defense of sovereign immunity lodged by Zardari’s administration is just as legally unfounded and ambiguous. Though presidential immunity may be guaranteed under Pakistan’s Constitution, its implementation cannot subvert the other provisions and ideals of the Constitution.

The legal doctrine of sovereign immunity was created to foster a more efficient presidency; a leader freed from the concern of being sued for every official action will act more deliberately. Theoretically, if leaders are not exposed to prosecutions by the judiciary, they will act in the nation’s best interest rather than their own legal benefit. Further, the head of a nation is exempt from revealing internal documents so that he or she can receive a free flow of information from their advisors without interference from the courts.

Unlike many other constitutional democracies, Pakistan and India both grant absolute immunity to their head of state as part of their Constitution. However, in the Memogate case, the Court has substantiated its potential prosecution of President Zardari through the US Supreme Court case of US v. Nixon.  Barrister Zafarullah Khan, who is one of the petitioners in the case, aptly stated that such a legal standard cannot apply in Pakistan because, “in the US constitution, the president does not enjoy immunity as opposed to our Constitution.”

Khan is technically correct as the US Constitution does not explicitly guarantee sovereign immunity in the same way Article 248 does in Pakistan. However, the US Supreme Court has time and time again honored the presidential immunity as a basic foundation of American democracy. In Nixon v. Fitzgerald, the Supreme Court gave the president “absolute immunity from damages liability predicated on his official acts” and allowed the President immunity so long as he acted in “good faith.”

In US v. Nixon, though the Court rejected an unconditional immunity for the president, they stated:“Certain powers and privileges flow from the nature of enumerated powers, the  protection of the confidentiality of Presidential communications has similar constitutional underpinnings… The President's need for complete candor and objectivity from advisers calls for great deference from the courts.”

US v. Nixon concerned a subpoena served to the then sitting-president Nixon, where the Court required him to disclose recorded conversations between himself and his advisors. The case was not a prosecution of President Nixon himself, but was part of a criminal prosecution of other individuals suspected of breaking into the Watergate.Amongst many defenses, Nixon raised a Zardari-esque claim of unconditional sovereign immunity from prosecution or disclosure of confidential files before the Court. However, the Supreme Court rejected a claim of absolute immunity stating that the judges must “weigh the importance of the general privilege of confidentiality of presidential communications in performance of the president's responsibilities against the inroads of such a privilege on the fair administration of criminal justice.”

Indeed, it is this balancing act that must be examined in Pakistan, where the executive has faced a barrage of allegations of corruption. An imbalance of immunity disfavoring the president will lead to the executive branch being controlled by the will of the unelected courts rather than the people who voted for them. On the other hand, an excess of immunity granted to the president where he or she is not subject to the rule of law, challenges “the very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts.”

For the justices in Nixon v. US, they weighed the president’s generalised claim of immunity against a direct need for evidence to be produced in a criminal case under the Constitutional rights guaranteeing fair trial. The Court found that the president’s immunity could be breached if it would sacrifice the right to fair trial.

Interestingly enough, while there is a constitutional provision allowing for sovereign immunity in Pakistan, Article 8 of the Constitution nullifies any law that violates fundamental rights enumerated in the Constitution. Article 10, which is a fundamental right, states that, “a person shall be entitled to a fair trial and due process.” Therefore, the Pakistani Supreme Court could argue that by not offering evidence in the NRO decision and the current Memogate controversy, the usage of Article 248 immunity by Zardari is invalid as it violates Articles 8 and 10 of the Constitution.

However, there is a very grave caveat that the Supreme Court should heed as it escalates its adversarial relationship with the president. Unlike the Parliament and the president, the Courts must act with great skill to assert themselves in the legal manner while avoiding politicised attacks on individuals. Under the Separation of Powers Doctrine, the Court should give deference to the president and Parliament in making political decisions unless there is an obvious and direct violation of the Constitution.

This is because, unlike the judges who are appointed, the Parliament and president are selected by the will of the people, and they are entrusted with greater responsibilities. Though Pakistan’s lawyers and judges helped bring down Musharaff’s dictatorial regime, they cannot become political creatures. Such a move would not only establish a dangerous precedent for future Supreme Courts, but could also alienate the elected branches to the point of revolt.

Despite the attempt to demonize either the president or the Court over the recent spate, one should consider the legal ramifications of this power-wrangling. Though the Constitution allows for immunity of a sitting head of state, the Court may want to reexamine this practice by looking to how this immunity violates other constitutional protections. However, the Court should defer to the elected branches and temper its activism to instances where the most fundamental constitutional rights are at risk.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.