Daily Times

The honourable Supreme Court’s (SC’s) verdict on the NRO case in December 2009 and its rejection of the government’s review petition, thereby upholding its original decision, has restarted a debate about whether the president of Pakistan enjoys immunity in cases involving foreign and Pakistani courts’ jurisdiction. The debate has been often confusing as leading legal eagles are equally divided on this issue, with eminent jurist Aitzaz Ahsan holding the view that the president enjoys blanket immunity for criminal proceedings under article 248 of Pakistan’s constitution as well as under the principle of the head of state’s immunity under international law. Leading lawyer Mr Akram Sheikh and others disagree, arguing that the president’s immunity under the constitution is conditional at best and may be waived both at home and abroad. Furthermore, the fact that no settled legal interpretation or precedent on article 248 exists in Pakistan and other commonwealth countries, especially India from whom we borrow so much in the legal field, further confuses the issue in the minds of concerned Pakistanis. In short, there is a dearth of jurisprudence on the issue of the head of state’s immunity.

The scope of this article is to explore what is the principle of the head of state’s immunity both under the Pakistani constitution and international law regimes. Most importantly, why such a principle or privilege exists both in Pakistan and abroad, and whether such a principle can be waived or revoked. This article also discusses, in brief, the prevailing legal thought in Switzerland. However, what this article does not purport to do is predict the fallout on our political system in case this immunity is surrendered by parliament or struck down by the SC. Prediction is often a risky business.

What is the principle of the head of state’s immunity?

The principle of the head of state’s immunity stems from the idea of state sovereign immunity. Historically, international law recognised a principle of absolute immunity for foreign states, under which no state could be put on trial without its consent. This was based on the premise that all states are independent and equal under international law, and the idea that subjecting a state to a foreign court’s jurisdiction would negate this idea of sovereign equality. Since the head of the state was one of the guises of the state, therefore, he too, was immune. Or, in other words, the state and its ruler were one and the same. Historically a monarch was absolute in exercising his powers over his realm. He could do no wrong and was the source of all the laws in his kingdom. All laws were posited in his name. The principle of the head of state’s immunity flows from this accepted political and social norm as well.

Why does it exist?

The principle of the head of state’s immunity exists simply to preserve the prestige of the throne in the case of monarchies and the presidency in the case of a republic. Moreover, it is intended to provide a stable and smooth platform both for the king and the president, as the case may be, to exercise their executive powers, without any hindrance. Simply put, the immunity exists since it is important for the exercise of his executive powers, evident from the ‘Arrest Warrants’ case in the International Court of Justice.

Why does it exist in Pakistan?

While the founding fathers of Pakistan intended the newborn state to be a republic and not a monarchy, the intention in the minds of the framers of the 1973 constitution, while enacting Article 248, was to preserve the prestige of the office of the president as well as the smooth functioning of the executive powers of the president. It should be understood that the provisions contained in Article 248 and its sub-clauses are not unique in the sense that every constitution, to some degree, protects its head of state from court proceedings at least while the head of state is still in power. For example, the president of India, under Article 361 of the Indian constitution, enjoys immunity in criminal proceedings.

(To be continued)

The writer is a freelance columnist