Does Ruling Elite Enjoy Absolute Immunity?

The democracy and absolute immunity cannot be said in a same breath. If we are a democratic country, not a kingdom or a dictatorship then how can we speak of immunities to the ruling elite of our country and what is the purpose of immunity clause. i.e. article 248 in our constitution. Let us discuss the nature of immunities and the purpose for which they are made part of the constitution.

The immunity clause should not be read in isolation. Before interpreting it, one must understand the intent of these provisions and scheme of the constitution. The President, Governors, Prime Minister, Chief Ministers and Ministers do not enjoy the absolute immunity under our constitution. Under certain condition post of the ruling elite has been protected but their personality and their decision are not made immune from the eye of law.  In fact, they are more answerable to the law and people of Pakistan under the Constitution. We must understand one thing, higher the post, greater the responsibility.

been protected but their personality and their decision are not made immune from the eye of law.  In fact, they are more answerable to the law and people of Pakistan under the Constitution. We must understand one thing, higher the post, greater the responsibility.

The constitution of any country is a social contract between the people of that country wherein they decide the rules and regulations for governing their country. Our constitution guarantees fundamental rights including equality of status, equality of opportunity before law, social, economic and political justice, and freedom of thought, expression, belief, faith worship and association. Another basic feature of our constitution is that it ensures the Independence of judiciary and guarantees rule of law.

Article 4 of our constitution states that to enjoy the protection of law and to be treated in accordance with law is inalienable right of every citizen, read with article 5 and 25 of the constitution which endorses that obedience to the constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.  Article 25 of the constitution also endorses this position and states that all citizens are equal before law and are entitled to equal protection of law.

Now we shall see that becoming a member of the elite ruling class of the country, i.e.to qualify as a member of parliament is to put much more responsibility on a candidate aspiring to become the leader of this country. A 62 of the constitution states that a person shall not be qualified to be elected or chosen as a member of Parliament unless he has a good character and he is not commonly known as one who violates Islamic injunctions; he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins ; he is sagacious, righteous and non-profligate, and honest. He has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan. Article 63 enumerates the clause which disqualifies a person from membership of parliament.

It is very clear from the plain reading of the article 248, that the Prime Minister and Ministers are not immune from the civil liability for the acts done and not done in their private capacity. However the civil proceeding can be brought against the President and the Governors for things done or not done by him in his personal capacity by first giving them sixty days notice in advance before the proceedings are instituted.  The President, Governor, the Prime Minister, a Federal Minister, the Chief Minister and Provincial Minister have been declared under A 248 immune from civil liability for performance of any power or function in their official capacity. However, if necessary the federation or a province, as the case may be, can be sued by the aggrieved person. The reason behind this partial immunity from civil litigation is that when such persons are functioning under official capacity they are functioning on behalf of federation or province. If any person is aggrieved by any of the act done in performance of official capacity, the federation or province is answerable and by law the federation or province can be made party to the civil proceeding through its concerned secretaries. We shall see in following judgments that when elite performing their official functions exceeded their prescribed limits, courts have allowed them to be made party to the proceeding in their private capacity and have not extended them immunity in such case and held them responsible.

We shall discuss the case law on civil immunity. The privilege or immunity is not absolute even in performance of their official functions. Supreme Court held in a case reported in PLD 1990 SC 1092, that where the allegation against the protected person (minister) is one of mala fide of fact, he has to be personally impleaded in the case. It is clear from this when such person acts mala fide than he is not immune, even though he is performing his official functions.

In another case reported in 2004 MLD 1976, health minister relaxed some rules and granted permission to a person to sit in the examination. Case was brought against him. Immunity was claimed by the minister, court held, for application of article 248 of the constitution, it was necessary to prove that the act done by the health minister was in exercise of power conferred by some law and in relaxation to performance of those functions. Minister was found to have no power to allow relaxation and his orders regarding the same were declared illegal.

It is also held by Supreme Court in case reported in PLD 1976 SC 315 that protection contained in article is extended to a person of the President, a Governor, Prime Minister etc. not to any action taken or any order passed by them.

In another case supreme court allowed impleading of  President Prevaz Musharaf as a party to the Supreme Court proceeding and no immunity was extended to the president in a case reported in PLD 2010 Sc 61. In this case the action of the president was under challenge, wherein it was alleged that the president of Pakistan summoned the Chief Justice of Pakistan to the army house/ president camp office; The Chief Justice was detained there for 5 hours and attempts were made to secure the resignation of the chief justice of Pakistan under duress and through coercion. When the petition was brought against the President, and immunity was claimed, the Supreme Court of Pakistan did not extend the protection  and held that impleading of the president as a party to the proceedings.

All the above cases were of civil nature, or in a writ jurisdiction or in a jurisdiction available to the Supreme Court under article 184(3) of the Constitution. We have observed through different judgments that although the office of the President, Prime Minister, Chief Ministers etc., may be immune from the civil liability yet their private actions or their official action done with mala fide intention or without force of law are not immune from the civil liability. We have also seen in the above referred judgments that in certain cases the courts have lifted this veil of protection and allowed the president and ministers to be impleaded as a party to the court proceeding. One prime example is seen recently wherein the present President has been impleaded as a party in a Supreme Court proceeding in ‘memogate’ scandal and he has been asked to file a reply by the Supreme Court of Pakistan.

Now we shall discuss the contempt proceedings which are neither pure civil nor criminal proceedings. Contempt proceedings have been declared as a species of its own nature of proceedings. Supreme Court has held in PLD 1975 SC 383(p.393) with respect to the immunity to the Prime Minister against the contempt proceedings as under, “It is not easy to define the exact scope of Prime Minister’s power and functions, but this is quite certain that his powers and functions are derived from the Constitution.

Hence, since neither the constitution nor any law possibly authorize him to commit a criminal act or to do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts. Even a Prime Minister is under clause (2) of article 5 of the Constitution, bound to obey the Constitution and law as that is basic obligation of every citizen.  The scope of the powers and functions of a Prime Minister cannot possibly extend to the committing of contempt of Court which is punishable under the constitution itself, and therefore, by necessary implication prohibited.’

If every citizen of the country is to obey the constitution than it may be held that even the President of Pakistan may not enjoy the immunity from the contempt proceedings.

We shall now discuss the immunity to the President, Governors, Prime Ministers etc. from the criminal proceedings. The article 248 does not speak of any immunity to the Prime Minister, Chief minister etc. from the criminal proceedings. Thus it is clear that prime minister and the ministers do not enjoy any immunity from the criminal proceedings. Clause (1) of article 248 states that 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:

It is clear from the plain reading that immunity may be partially extended to the prime minister as against the civil proceeding wherein he is performing functions in respect of his office but in no case extended to illegal acts or crimes committed by the Prime Minister, Chief Minister or Ministers. For this very purpose the accountability laws are made for the accountability of the persons holding official positions.

Now we shall discuss the most discussed provisions of the law nowadays. i.e. whether the President or Governor of Pakistan enjoys the complete immunity in criminal proceedings?

To discuss these provisions we shall see the intent of the legislators for incorporating this provision in the constitution and also understand these provisions under the scheme of our constitution. The intent to incorporate these provisions is to protect the post and not the person, that is to protect the President, Prime Minister etc. from any legal consequences while performing their official duty and by no means are such immunity clauses incorporated to foster the illegal orders, or crimes. We should understand that the intent and purpose of incorporating such clauses should be noble.

Constitution places very strict qualification clauses for a person seeking to be elected as a representative to the parliament.  And we also know that no one can become a President of Pakistan unless he qualifies to be a member of the parliament. If a person cannot be elected as a member of the parliament then intent of incorporating immunity provisions are not to protect the crime.  The president being the citizen of the country is as much liable to follow the law as every other citizen of the country.

The only reason for inserting clause 2 and 3 of article 248 in the constitution is that president is the symbol of unity, head of State, commander in chief of the country and his role in the constitution is of such nature that he acts on the advice of the Prime Minister and Ministers. The action taken by the president in official capacity, are taken on the advice of either prime minister or the minister. He being signatory to the officials orders cannot be held liable and called in a criminal proceeding initiated for acting in his official capacity.

Another argument advanced is that, should the president’s position commands that no action whatsoever, whether committed in official capacity or in person be immune from the criminal jurisdiction during his tenure of his office? And President or Governor enjoys absolute immunity from criminal cases for actions when done in official capacity or in personal capacity? This question is yet to be decided by the courts. Wait and see.

Another argument is that although immune from initiation of continuation of a case against them, the president and the governor are not immune from investigation of that crime and the case can be initiated against them after their tenure.

This question is yet to be decided by the courts. And this may be decided in a contempt proceeding against the prime minister by the supreme court of Pakistan. Wait and see.

The up short of the discussion is immunity clause in the constitution are there for a reason and that is to assist the person holding highest post of the country for smooth running of their official function done in good faith and not to protect illegal or unconstitutional or criminal or civil acts.