THE Supreme Court’s order disqualifying Yousuf Raza Gilani as prime minister has polarised opinions inside and outside Pakistan.

One foreign commentator, Justice Markandey Katju, a retired Indian Supreme Court judge, has — in a widely published article — accused the Pakistani Supreme Court of having “gone overboard” and “berserk” and having “flouted all canons of constitutional jurisprudence”.

Domestic critics of the SC have strongly relied upon his article painting it as an authoritative statement of law by an unbiased foreign jurist. While Katju’s credentials are not in doubt, his reputation and neutrality are insufficient to save an article premised on fundamentally erroneous presumptions.

Justice Katju cites, with admiration, the English-law principle that ‘the king can do no wrong’. He states it was evolved by the English who — being “experienced and able administrators” — realised the system could not function if the king was made to “stand in the witness box or [be] sent to jail”.

According to Katju, the English concluded from their “long, historical experience” that although the law should be the same for everyone yet the person at the apex of the constitutional system (i.e. the king) must be given total immunity even if he commits murder, dacoity or theft. Katju considers this “the only practical view” and would apply the principle to all heads of state.

Contrary to what Justice Katju writes, however, the principle that ‘the king can do no wrong’ was not evolved by “able administrators” after mature reflection upon their “long, historical experience”. Rather, the principle originates from the religious belief in the ‘divine rights of kings’.

Like many other peoples in bygone days, the English believed their sovereign reflected God’s will on earth. All the laws of the land owed their existence to the will of the king. All judicial power was vested in judges by the king and was exercised in his name. Naturally, the king could not be subject to his own laws or to his own courts. He was answerable only to God Himself.

Nevertheless, this belief in the ‘divine rights of kings’ came into conflict with more modern beliefs in ‘democracy’ and ‘the rule of law’. As a result, the last English king to strongly assert the ‘divine right of kings’, namely King Charles I, was beheaded after a public uprising in the year 1661 and his head displayed on a pole outside West-minster Abbey.

To resurrect a discredited religious doctrine rooted in English history and apply it in Pakistan to someone as far removed from ‘divinity’ as Asif Ali Zardari seems absurd. If we must follow a religious doctrine, surely it should be drawn from Islamic jurisprudence where the righteous caliphs eschewed any special privilege before the qazi.

The only other justification for presidential immunity is that the head of state should be able to devote all his attention to affairs of state rather than waste his time defending legal proceedings.

This argument may carry some weight in countries like the US where the president actually heads the executive branch of state (although, even there, the US Supreme Court rejected Nixon’s and Clinton’s claims for immunity for unofficial acts outside the scope of their presidential duties).

In Pakistan, however, the presidential office is essentially ceremonial. Responsibility for state affairs lies not with the president but with the prime minister (who has not been conferred any such sweeping constitutional immunity).

This strengthens the view that the immunity conferred upon the president by Article 248 (2) of the constitution is not due to practical considerations regarding performance of state functions but is only a relic of our English colonial history.

No doubt, our Supreme Court will examine the antecedents of the doctrine of presidential immunity and its reason and purpose whenever it is called upon to interpret Article 248 (2) of the constitution.

Thus far, however, the SC has not considered the scope and extent of presidential immunity conferred by Article 248 (2) because neither Gilani nor Zardari ever raised this issue before the court.

Indeed, during the contempt proceedings against Gilani, the court expressly asked his counsel Aitzaz Ahsan whether Gilani’s refusal to address the letter to the Swiss authorities was on account of the presidential immunity conferred by Article 248 (2) of the constitution. Aitzaz Ahsan replied that he was not relying upon Article 248 (2) and that there was no reason for the court to interpret its scope and effect.

The PPP government deliberately avoided raising the Article 248 (2) argument before the SC as they feared that a restrictive interpretation of the article might land the president in even more trouble. They reserved this argument exclusively for talk shows, press conferences and public rallies.

To criticise the SC for not considering an argument that was never made before it seems unreasonable. Criticism would have been far more justified had it done the converse i.e. decided an issue never raised before it.

Such critics, including Justice Katju, would benefit from a full reading of the original NRO judgment, the NRO review judgment and the Gilani contempt judgment (all available on the Internet) so their ‘legal critiques’ are based on what was actually argued before, and decided by, the SC rather than being based upon talk-show debates and newspaper columns.

In the contempt proceedings, Gilani’s counsel made a quite different submission regarding presidential immunity. He argued that, under international law, a domestic court could not exercise jurisdiction over a foreign head of state.

To this, the SC quite rightly pointed out that the proper forum to raise this point of international law was before the domestic court seeking to exercise jurisdiction over a foreign head of state (i.e. the Swiss court).

As such, if the Swiss authorities resumed proceedings against Zardari, the Pakistani government could point out that Zardari — having now ascended to presidential office — had acquired immunity under international law.

Finally, Justice Katju argues that the court’s decision to disqualify the serving prime minister is unprecedented in any democracy. He need only look to his own country where Indira Gandhi was disqualified as prime minister by an Indian court on account of electoral fraud. It took the imposition of an emergency and several legislative and constitutional amendments by a completely pliant legislature to save her. Thankfully, even the PPP allies in the present parliament appear reluctant to distort the constitutional fabric of the nation in order to save one person’s seat.

The author is a practising barrister.