Daily Times

Even today, in constitutional monarchies like Britain, all the laws are posited in the name of the Queen, the head of state of the UK and Northern Ireland. Although she is legally obliged to work in tandem with her cabinet and does not enjoy unbridled powers over her kingdom, she nevertheless enjoys full immunity from both civil and criminal proceedings at home. The president is not the source of law in Pakistan but, being the head of state, he stands above petty party politics and represents the federating units. He represents the state of Pakistan as one of the guises of the state, hence the immunity, albeit in criminal proceedings only.

Can this principle be waived or revoked?

Such a question always arises because this principle stands directly opposite to the fundamental principle of “all citizens are equal before the law and are entitled to equal protection of the law” as enshrined in article 25 of our constitution. In theory, parliament can amend article 248, stripping the president of immunity in criminal proceedings. But, given the present political composition of parliament, it is hardly likely. However, the Supreme Court (SC) can strike down this immunity as enshrined in article 248, inter alia being repugnant to the spirit of the 1973 constitution and/or in direct contrast with the principles of Islam, ‘equality before the law’ being one, enshrined in various examples from Islamic history, e.g. when Caliph Omer was called before the judge as a respondent. While the principle of immunity may stand on thin ice at home, it is a different story abroad.

Immunity is a powerful concept in international law. In the US, a district court in the state of New York in the Tachiona case (Tachiona vs Mugabe) dealt with torture and civil action against the Mugabe regime for having tortured Tachiona’s family in Zimbabwe. The court held that a sitting head of state has immunity from criminal and civil proceedings abroad. Here, it is only prudent to take cognisance of the prevailing legal environment in Switzerland regarding the issue of head of state immunity. The Swiss recognise that the immunity of a head of state is a principle embodied in customary international law. In a decision given by the Swiss Federal Supreme Court, the highest court in Switzerland, in a case involving the former dictator of the Philippines, Ferdinand Marcos, the court was of the opinion that such a principle of customary international law may be weakened when either the state itself expressly waives the immunity of its head of state, or when the head of state leaves office. In Pakistan, both these conditions do not apply to President Asif Ali Zardari. It can be safely assumed that he will be immune from any prosecution, especially regarding criminal cases, at the least until September 8, 2013 (he took oath of office on September 9, 2008).

However, the case of former Chilean dictator General Augusto Pinochet is often cited as an exception to the universal principle of head of state immunity. But it must be remembered that the facts of Pinochet’s case and of President Asif Ali Zardari are entirely different. The former was charged with crimes against humanity, war crimes, torture and genocide, etc. Such crimes are listed in article 7 of the Rome Statute of the International Criminal Court (ICC). Furthermore, article 27 of the Rome Statute holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the ICC from exercising its jurisdiction. The statutes of the International Court of Justice and the International Criminal Tribunals for former Yugoslavia and Rwanda make provisions for a head of state not to have immunity in the case of war crimes. The Rome Statute therefore stands opposite to customary international law. Meanwhile, the latter is accused of money laundering, not a crime against humanity under the ICC statute and other international law regimes. Comparing the two cases is equivalent to comparing apples and oranges. Money laundering has lately been identified as an international offence, but it is not considered serious enough an offence to prosecute a head of state in a foreign court, especially while he is still in power.

While the president of Pakistan may stand on thin ice vis-à-vis immunity in criminal proceedings at home since it has been challenged in the SC, nevertheless he enjoys protection due to customary international law under the principle of head of state immunity abroad, at least until he occupies the presidency.

(Concluded)

The writer is a freelance columnist