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Is president of Pakistan accountable to anyone?
Amjad Malik specially writes on post NRO scenario
Nation is confronted with a serious question whether President is accountable to any or not and can he be asked for his actions in the past which has an allegedly criminal substance. The National Accountability Bureau (NAB) presented to the government on Thursday a list of 248 politicians and bureaucrats, who were alleged to have plundered hundreds of billions of rupees but were cleared by the NAB under the NRO. On top of the list is the name of President Asif Ali Zardari while his several close associates, both political and bureaucratic, are also reflected. According to the list, Asif Ali Zardari remained the beneficiary No 1 of the NRO as at least eight of his NAB cases of corruption and misuse of authorities were dropped. These cases included the alleged kickbacks from SGS PSI Company, grant of licence to ARY Gold causing huge loss to government, corruption in purchase of Ursus tractors under the Awami Tractor Scheme, illegal award of contract to Cotecna for pre-shipment, assets beyond means, received kickbacks from Sajjad Ahmad (late) ex-chairman Pakistan Steel Mills, illegal construction of Polo ground at PM House and the money laundering SGS Swiss case. Now question arises, what legal recourse is available to address the concerns of public if he allegedly is that corrupt keeping in mind that he is? innocent until proven guilty? and he is an elected President of Pakistan.
In one example, In April 1999, then Justice Qayyum, found Ms Bhutto?s husband, Asif Ali Zardari, guilty of taking a $4.3m (?3m) commission after awarding a pre-shipment inspection contract to the Swiss firm Societe Generale de Surveillance. Both were fined $8.6m and jailed for five years. While Mr Zardari was already in jail awaiting trial on other cases, they appealed. In 2001 the Supreme Court found a string of complaints against the judge's handling of the case and The judgement was over turned in an explosive 55-page ruling, and retrial was ordered, but not an absolute acquittal.
Let?s see what Article 248 of the 1973 Constitution says:-?248. Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. (3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office. (4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims?.
Its obvious that Art.248 prohibits any such action against the elected President. But President may be impeached for wrong doing. Article 47 of the 1973 Constitution says:-?47(1) Notwithstanding anything contained in the Constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct?. I am afraid the number games may not be conductive to achieve that object.
During the reign of Mr. Dogar, BA qualification and applicability of Article 62,63 of the constitution was held in the favour of would be President in the highest court in Qazi Hussain vs Federation of Pakistan, though hurriedly and in the same tone though convicted and President was appealing in the Swiss court, Govt withdrew its support as a result of NRO at the eleventh hour.
Its ironic when we see British role in seeking pardon for many of Pak stalwarts of politics who act as their stooge comparing to the very treatment his country gives to its own notorious. In his own land, Ministers are brought to justice and accountability before Parliament indiscriminately without fail. A few glimpses will suffice to give full picture. Their General Oliver Cromwell was tried after his death in 1661 for overthrowing Parliament. In autumn 1660 parliament ordered the exhumation and posthumous execution of several regicides and in January 1661 Westminster Abbey was searched for the remains of Oliver Cromwell and others. Three corpses were duly produced and conveyed to Tyburn, where they were hanged and his body was left at the public place for years as an example. Furthermore, In July 2001, a Millionaire novelist and Tory member of House of Lords Lord Archer was jailed for four years after being found guilty of perjury and perverting the course of justice. The jury found him guilty of lying and cheating in his 1987 libel case against the Daily Star. The verdicts were unanimous on each count. Lord Archer, who was ordered to pay ?175,000 costs within 12 months, was told by the judge he would have to serve at least half of his sentence. In January 2001, The career of Peter Mandelson at the highest political level appeared to be over after his resignation from the cabinet for an unprecedented second time. Mr Mandelson admitted that he had made misleading statements over the passport application of controversial Indian billionaire Srichand Hinduja but denied he had done anything wrong. Mr Mandelson was first forced to quit from the cabinet in 1998 after failing to disclose that he had secretly received a ?373,000 loan from his then fellow minister Geoffrey Robinson to buy a house in London. Peter Mandleson resigned in the first and second leg of his Ministerial position for not declaring his loan to the Parliament and for giving misleading statement. In December 2004, David Blunkett quit as home secretary after an e-mail emerged showing a visa application for his partner?s nanny had been fast-tracked. David Blunkett had to resign as the e-mail had said "no favours but slightly quicker". Mr Blunkett said he had not been aware of its contents and insisted he had done nothing wrong. But he said questions about his honesty had damaged the government. Now expenses scandal has opened many worms where each and every member of parliament have not only showed remorse but has offered themselves for accountability, many alleged are not standing for public office in coming election(s).
USA also does not give carte blanch to their presidents. In the earliest decision of the US Supreme court in Misssissippi vs Johnson (1867) , Chief Justice Marshall placed the President ?beyond the reach of judicial direction, either affirmative or restraining in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps what must be a small class of powers that are purely ministerial.? That seems an indemnity for his functions. In 1974 in the case of Nixon vc Fitzgerald, the Supreme Court elaborated further the concept of executive immunity. In this case, the president was sued in a civil suit and the US supreme court was asked to consider a claim by former President Richard Nixon that he enjoyed absolute immunity from a former employee?s suit for damages for his allegedly unlawful official conduct in office. The court endorsed a rule of absolute immunity, concluding that such immunity is ?a functionally mandated incident of the president?s unique office, rooted in the constitutional tradition of the separation of power and supported by our history.? That seems an indemnity for his functions. But in the case of Clinton vs Jones in 1997, the court declined to extend immunity recognised in Fitzgerald to civil suits challenging the legality of a president?s unofficial conduct. SC confirmed that ?the principle rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.
On the face of it Pakistani President enjoys absolute immunity in criminal and civil proceedings whilst he is in office, however, in the light of surrounding developing voices in West, USA and UK whether this immunity extends to the past acts and omissions is a question for the supreme court of Pakistan for worthy interpretation of Art.248. Whilst carrying out that honours task, SC will have to keep before them the Islamic jurisprudence in which the head of state is sub judice to Qazi at all times for his actions and Caliph Omer freely appeared before a Qazi court during his tenure. Brief scrutiny of Case law in Pakistan Zahoor Elahi (PLD 1975 SC 383), Sadiq Qureshi (PLD 1979 Lahore 1) and Muhammad Anwar Durrani (PLD 1989 Quetta 25) all reveal that protection granted to the President may not cover illegal and mala fide acts because such acts cannot be construed as deemed to be in good faith in pursuance of the law or in discharge of official functions, to me, commission and illegal land transfers are not and cannot be official functions. It all bottles down to his election as President. Was it fair to the people of Pakistan at the time of his election to impose on him a person who is qua sai notorious and will carry a bad name to the office to start with.
On 26 August 2008, the writer whilst commenting on Presidential elections in Pakistan titled ?Pakistan deserves better? wrote, ?Mr. Zi should not be penalised for his past illnesses, however if he commits a blunder whilst leading the pioneer atomic Islamic nation of 160 million souls as a head of the state, whilst having constitutional immunity from prosecution, he will also have a lawful defence on the basis of his past psychiatric profile and all liability will rest on security apparatus, election commissionerate and hopeful contenders in his election who failed to challenge his smooth sailing in time, and the loss will be of the state, but surely military rule will survive by default.? Situation 12 months following in Pakistan is not different from what was envisaged at that time. Disquiet and no apparent challenge to his eligibly at the time of election is a clear weakness in the system and security apparatus and pose a serious question of procedural impropriety and justice where it runs with the wind. Lead role could be played by Parliament to clean the dirty linen instead of bringing judiciary in this mess but what can we do, its Pakistan. Now its political fall outs will be considered but the message is clear that ?Nobody is above the law? and when the long arms of law truly move, no one is immune.
Amjad Malik is a solicitor Advocate of the Supreme Court of England and Wales
20 November 2009
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