No Immunity for President, SC Decided in 2007

ISLAMABAD, Pakistan News: The critical issue whether the president enjoys immunity under Article 248 of the Constitution was categorically and specifically decided by the Supreme Court and it was denied to former president Pervez Musharraf in the case of restoration of the then-deposed chief justice Iftikhar Mohammad Chaudhry.

While the short order in the case given on July 20, 2007, by a 13-member bench, headed by Justice Khalilur Rehman Ramday, restored the chief justice, in its detailed judgment of the same case, given just 35 days ago, no room for any ambiguity has been left.

The detailed judgment, which did not receive much legal or media attention, addressed the issue, which Prime Minister Yousuf Raza Gilani has now referred back to the Supreme Court in his speeches in the National Assembly, and gave reasons and past references to deny immunity to a sitting president, even in criminal cases as provided for in Article 248 of the Constitution.

The detailed judgment issued on Dec 24 clearly states: “…allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice, no exception could be taken to implead the president as a respondent…”

Responding to objections raised in 2007 by the then-government (of Gen Musharraf), over impleading the then-president, the detailed judgment also refers to several previous judgments on this specific issue of Article 248 and cites examples where such immunities were not accepted.

The Ramday judgment refers to mala fide actions of Gen Musharraf and ruled in Para 107: “As would appear from the averments made in this petition, some of which have even been noticed in the earlier part of this judgment, the mainstay of the case of the petitioner, the chief justice of Pakistan, is that the entire exercise in question had been commenced for collateral purposes and suffered from mala fides which was sought to be established, inter alia, through the chief justice of Pakistan being summoned by the president to the Army House/President’s Camp Office; detention of the chief justice at the said office for about five hours; attempts made to secure the resignation of the chief justice under duress and through coercion; the alleged illegal detention of the wife and the children of the chief justice in their house and the alleged unconstitutional removal of the chief justice from his office and appointment of acting chief justice of Pakistan. Since such serious allegations of mala fide had been levelled against the person of the president by no less a person than the chief justice of Pakistan, no exception could be taken to implead the president as a respondent in this petition, which was in fact imperative in view of the above-mentioned precedent cases.”

Interestingly, this judgment says the president can be impleaded for his actions of illegal detention of the chief justice, his wife and children, etc. All these actions are of criminal nature, which a sitting president ordered, but the Supreme Court did not give him immunity under Article 248(2), which says no criminal proceedings can be initiated or continued against a sitting president. The Constitution does not give immunity to president or any other public office holder in civil matters.

Referring to the objection raised that Gen Pervez Musharraf, the president of Pakistan, had been impleaded in the said petition as one of the respondents, which was seen by the then government as against the provisions of Article 248(1) of the Constitution, the judgment reproduced the said Article, which reads as: “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: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a province.”

Many past judgments were also quoted by the Ramday judgment of Dec 24, 2009. It said that such an immunity clause had been examined by the Privy Council in HB Gills case (AIR 1948 Privy Council 148) and the reaction of the Privy Council to such-like protective provisions was as under: “Their Lordships, while admitting the cogency of the argument that in the circumstances prevailing in India a large measure of protection from harassing proceedings may be necessary for public officials cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.

Thus, a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer acts or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”

The judgment added, “In our jurisdiction the pleaded Article 248 came up for interpretation in Chaudhry Zahur Elahi’s case (PLD 1975 SC 383). The scope and the operational area of the said provision was so stated by this court: “…the immunity provisions must, in accordance with the accepted principles of interpretation, be construed strictly and unless persons claiming the immunity come strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in the nature of an exception to the general rule that no one is above the law.”

The matter was further explained in these words: “Hence, since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or un-constitutional acts.”

This court, the judgment said, when confronted again with the protection provisions of Article 248 in Amanullah Khan’s Case (PLD 1990 SC 1092) reiterated that the said provisions were required to be strictly construed and added in para 56 that: “If mala fide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the minister has to be impleaded in spite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all objections to such impleadment dealt with in the proceedings. In the absence of the party, no finding with regard to mala fide of fact (as distinguished from mala fide of law) can be recorded, should be recorded and should have been recorded. Recourse to the principles of natural justice to overcome the prohibition contained in Article 248 of the Constitution is not permissible.”

“It was further declared: “Protection under Article 248 of the Constitution is not available to the designated functionaries if their actions suffer from mala fide of fact where the allegation against the protected functionaries is one of mala fide of fact, they have to be personally impleaded as a party to the proceedings;”

“The views of Nasim Hassan Shah J in the same case are also enlightening for the resolution of the issue in question. His views were: “Now the immunity to a minister extends only to the exercise of powers and performance of functions of his office or for any act done or purported to be done in the exercise of those powers and performance of those functions. A minister can be said to be acting in exercise of the powers and functions of his office, if his acts are such which not only lie within the scope of the powers and functions conferred on him by law but are performed bona fide and for carrying into effect the intention and purposes of the statute under which, he is acting. If on the other hand his acts are performed with mala fide intent or for a colourable purpose, such acts will not be deemed to have been performed in the lawful exercise of the powers and functions vested in him and will not, therefore, be covered by the immunity. Accordingly, where it transpires that a minister has acted illegally and abused his discretion and the illegality committed was not in the bona fide exercise of his powers and functions but on account of mala fides the immunity contained in Article 248(1) would not extend to protect such an act.”

Similar views were expressed by this court in Nawabzada Muhammad Umar Khan’s Case (1992 SCMR 2450) which were as under: “Secondly, where allegations of mala fide of fact are involved or alleged, it is necessary that the parties against whom such mala fide of fact is alleged must be impleaded as a party so that it has occasion to meet the allegation. This is notwithstanding the constitutional protection enjoyed by such functionaries under Article 248 of the Constitution vide Amanullah Khan and others Vs the Federal Government of Pakistan through secretary, Ministry of Finance, Islamabad, and others (PLD 1990 SC 1092).”

While there are such specific rulings and judgments given by the Supreme Court itself, the latest being on December 24, 2009, a new case filed by Khalid Khwaja is again before the Supreme Court to give another judgment on the subject.

The prime minister has promised in Parliament that he would act if the SC clarified the ambiguity, although after reading the Dec 24, 2009, judgment of Justice Ramday, there is no ambiguity left, an expert said, lamenting that perhaps no one in the government had bothered to go through this detailed judgment that has squarely discussed the issue of President’s immunity.

Immunity to President: Going Court if I’m Wrong, Says PM Gilani

ISLAMABAD, Pakistan News: Prime Minister Syed Yousuf Raza Gilani has said that those who have difference of opinion about immunity of President under Article 248 of the Constitution could go to the court for interpretation.

Responding to leader of the opposition Chaudhry Nisar Ali Khan speech in the National Assembly on Thursday, Gilani posed a question to the House about interpretation of article 248 by the Supreme Court.He said that some points in the Supreme Court decision on the National Reconciliation Ordinance (NRO) required interpretation. Gilani said that this was the opinion of legal experts and not his own that President enjoys immunity under Article 248 of the Constitution and if anyone has another opinion he can go to the court to get it interpreted.

The Prime Minister reiterated that his government has highest regard for the judiciary and would implement the Supreme Court decision on NRO. He also complained that only President was being targeted in the Parliament and by the media while there are 8,034 NRO-related cases. The President, he said was given immunity by the Parliament and how could he take any action unless otherwise interpretation is given.

About accountability, he said that army and judiciary have their own accountability systems and even parliament was not allowed to interfere in their system. While against this the Public Accounts Committee and NAB hold accountability of the holders of the public offices. “We cannot interfere in their domains and want that they should not interfere in our domain,” he said adding that he enjoys good relations with all State institutions and he does not want any confrontation with them.

He said the constitution envisages trichotomy of powers and all institutions should work while remaining within their domains. The Prime Minister pointed out that he has already declared that the NAB Chairman would be appointed in consultation with the leader of the opposition. He however, added that it was a tenure post and a new chairman can be appointed only if the incumbent one resigns from his post. About taking action against former Attorney General, he said that he has gone to the court for a review and judgement would be implemented after the verdict of court on his review petition.

Gilani said that in the NRO judgement the Supreme Court ordered re-opening of all cases and said even incumbent ministers are appearing before the courts which is a clear manifestation on the part of the government that it was implementing the verdict. Moreover, he said that as desired by the Supreme Court the number of judges of Ehtesab Courts would be increased so as to expedite disposal of cases.

Gilani also welcomed today’s remarks of the Chief Justice of Pakistan that the judiciary will protect democracy and sovereignty of the parliament. On the proposal of the leader of the Opposition, Prime Minister said that services of about 35 contract employees of the National Assembly should be regularised and added that services of 132 contract doctors is also being taken care of by the concerned committee headed by Federal Minister Syed Khurshid Shah.

Immunity to President: Appeal Filed in SC

ISLAMABAD, Pakistan News: An appeal has been filed in Supreme Court on Friday regarding the immunity to the President.

According to the channel, an appeal has been filed by Khalid Khuwaja in the Supreme Court regarding the immunity to the President Asif Ali Zardari.

The petitioner has requested the court to hold the hearing on 3 February 2010.

President Zardari Summons Allies’ Meeting Today

ISLAMABAD, Pakistan News: President Zardari would hold consultations with his political allies on NRO at Islamabad today.

The President has invited all the political allies: MQM and ANP at luncheon at the President House. According to sources, the President and other political leaders would deliberate upon the situation ensuing the Supreme Court ruling on NRO.

NRO Names of Beneficiaries, Except the President Included in ECL

ISLAMABAD, Pakistan news Updates: The names of beneficiaries of National Reconciliation Ordinance (NRO) expect President Asif Zardari have been included in Exit Control List (ECL) in accordance with Supreme Court’s decision on NRO.

According to sources, the names of Federal Interior Minister Rehman Malik, Senator Jahangir Badar, leader of Muttahida Qaumi Movement (MQM) Wasim Akhter, Salman Farooqi and Usman Farooqi have been put in ECL.

President Pratibha Patil in Good Condition After the Incident Infrared

NEW DELHI, India News : Indian President Pratibha Patil is safe after the blade of a helicopter carrying her brushed against a wall in Bhubaneshwar on Wednesday.

Patil, her husband Devisingh Shekhawat and Orissa Governor were disembarked from the chopper after the incident.

President, CMS COAS Visit to Investigate the Health of the Explosion were Injured

RAWALPINDI, Pakistan news Updates: President Asif Ali Zardari Monday visited the Combined Military Hospital to enquire about the health of those injured in the terrorist attack on a mosque at Parade Lane.

The President accompanied by the Chief of Army Staff General Ashfaq Parvaiz Kiyani and Minister of Defence Ahmed Mukhtar visited the wards where the injured of the Friday’s tragedy are being treated.

The President strongly condemned the gory incident and expressed his deep shock over the heavy loss of life and the injuries to several people who were in the mosque to offer Friday prayers.

He expressed his resolve that the government, the people and the armed forces of the country were determined to cleanse their country of extremists and terrorists and would not shy from rendering any sacrifice.

President Zardari described it a heinous act by those who claim to be Muslims or for waging a jehad.

“All these were pious Muslims who had gone to offer their prayers,” he said and prayed to Allah Almighty to shower His blessings on the departed souls.

The President asked the doctors about the pace of recovery of the injured and directed that best possible treatment be provided to them to ensure early recovery.

President Transferred the Power of the NCA Chief of Prime Minister

ISLAMABAD, Pakistan news Update: President Asif Ali Zardari on Friday night divested himself of the powers of Chairman National Command Authority (NCA) and transferred the powers of Chairman to the elected Prime Minister. The shedding of powers of Chairman NCA was effected through re-promulgation of National Command Authority Ordinance, 2009 and amending it also, Spokesperson to the President Farhatullah Babar said in a statement.

He said that the National Command Authority Ordinance, 2009 is among the Ordinances that were promulgated before November 03, 2007 and which had to be placed before the Parliament within 120 days with effect from 31.7.2009 in accordance with the Supreme Court judgement of that date.

He said that President on Friday night also re-promulgated 27 other Ordinances which were promulgated before November 3, 2007 and which had to be placed before the Parliament within 120 days w.e.f 31.7.2009. The other ordinances re-promulgated included among others the Competition Ordinance, 2009, The Earthquake Reconstruction and Rehabilitation Authority Ordinance 2009, Federal Public Service Commission (Amendment) Ordinance, 2009, Trade Origination’s Ordinance, 2009 and the Defence Housing Authority Islamabad Ordinance, 2009, he said.

National Disaster Management Ordinance 2009, Anti-Money Laundering Ordinance 2009, Pakistan Penal Code Amendment Ordinance 2009, The Pakistan Atomic Energy Commission Amendment Ordinance 2009, Pakistan Institute of Development Economics Ordinance 2009, Code of Criminal Procedure Amendment Ordinance 2009, Intellectual Property Organisation of Pakistan 2009, National Vocational and Technical Education Commission Ordinance 2009, National Commission for Human Development Amendment Ordinance 2009, Police Order Amendment Ordinance 2009, National Disaster Management Ordinance 2009, Islamabad Consumer Protection Amendment Ordinance 2009, were other ordinances issued by the President.

The Ordinances were re-promulgated on the advice of the Prime Minister as the bills could not got passed from both the Houses within the deadline ie November 28, 2009 set by the Supreme Court, he said. He said that according to the re-promulgated Ordinance the Prime Minister would be the Chairman of the NCA instead of the President as before.

Other members of the Authority include Minister for Foreign Affairs, Minister for Defence, Minister for Finance, Minister for Interior, Chairman Joint Chiefs of Staff Committee, Chief of Army Staff, Chief of Naval Staff and Chief of Air Staff, he said.

Transferring of Chairmanship of National Command Authority to the Prime Minister is a giant leap forward to empower the Parliament and the Prime Minister, he said. He said in the original Ordinance, the then President had made himself the Chairman of NCA.

Farhatullah Babar said that the President had already urged the Parliament twice in his address to the joint session to rid the Constitution of all anti democracy clauses with a view to making it truly federal and parliamentary in character.

After his address to the Parliament the President also addressed a letter to the Prime Minister urging him to speed up the process of Constitutional Reforms through the Parliament in accordance with the commitment made by him and the party. A Parliamentary Committee has already been set up under the Chairmanship of PPP Senator Mian Raza Rabbani which is undertaking the task of democratising the constitution in consultation with all political parties, he said.

He said that after the amendment in National Command Authority Ordinance all powers and functions shall rest with the National Command Authority on whose behalf the Prime Minister will exercise these powers and functions. Farhatullah Babar said that President is also keenly awaiting for reforms in the Constitution through the Constitution Committee and the Parliament to make it truly democratic and vesting powers in the Parliament.

U.S Lack the Courage to Attack Israel: Ahmadinejad

BRASILIA News Update: Visiting Iranian President Mahmud Ahmadinejad said that US and Israeli military threats against Iran were a thing of the past, and that, in any case, “they don’t have the courage” to attack Iran.

“The age of military attacks is over, now we’ve reached the time for dialogue and understanding. Weapons and threats are a thing of the past,” the Iranian told a joint press conference with President Luiz Inacio Lula da Silva, closing his one-day visit.

Fielding a question on whether he feared an attack from Israel or the United States, Ahmadinejad said armed confrontation was no longer a possibility.

That’s clear “even for mentally challenged people,” he said with a smile.

Besides, he added, “those you mention (Israel and United States) don’t have the courage to attack Iran. They’re not even thinking about it.”

Ahmadinejad met for three hours with Lula to discuss Iran’s controversial nuclear program, over which Lula urged Teheran to find a “just solution” with Western powers.

President Zardari, PM Gilani Discuss Operation Rah-e-Nijat

Islamabad, Pakistan News Update: Prime Minister Syed Yousuf Raza Gilani called on President Asif Ali Zardari in the Presidency and discussed with him matters related to the operation Rah-e-Nijat in South Waziristan.

During the meeting matters relating to the prevailing political situation, IDPs, the measures taken by the government to address sugar problem and ‘Aghaz-e-Haqooq-e-Balochistan’ Package for Balochistan also came under discussion.

Briefing the media, Spokesman to the President, former Senator Farhatullah Babar said that the Prime Minister discussed with the President matters related to the operation Rah-e-Nijat.

The President and the Prime Minister also discussed the salient features of Balochistan Empowerment Package which will be unveiled in the joint sitting of the Parliament on Tuesday.

They also discussed the constitutional issues that are being thrashed out by the Constitutional Reforms Committee and will be placed soon in the Parliament.

Next Page »