Huzaima Bukhari & Dr. Ikramul Haq
The Supreme Court on February 19, 2010, while hearing Civil Petition No. 1049, 1348 & 1406 of 2009, summoned the Chairman of National Accountability Bureau (NAB) and reprimanded him for not implementing the order of the court in Dr. Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1—commonly known as NRO case. This has again rekindled the debate about “immunity” (sic) available to the President under Article 248 of the Constitution. The apex court gave the deadline of March 13, 2010 to the NAB to submit a report regarding writing of letter to the Swiss authorities for reopening of the case.
In Dr. Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1, the apex court has categorically directed the federal government to undo unlawful withdrawal of its claim of laundered money in Switzerland, generated through kickbacks received from SGS/Cotecna, Swiss companies hired for pre-shipment clearance in Pakistan. Swiss Judge, Daniel Devaud, in 2003 held that money received as kickbacks belonged to the people of Pakistan. After establishing money laundering offences under Switzerland’s penal code, he ordered suspended prison terms for the defendants and asked them to pay restitution. In 2008, the Pakistani government withdrew from the case and it was dismissed in August 2008 as there was no longer a claimant of laundered money. In PLD 2010 SC 1, the Supreme Court has specifically instructed the government to revive the matter in Switzerland for claim of money looted from the Pakistani masses.
The Swiss Judge in his decision quoted that “on 15 April 1999, the High Court of Lahore awarded the defendants 5 years’ of imprisonment and US$ 8.6 million of fines. But on 6 April 2001, the said judgment was annulled by the Supreme Court of Pakistan and the case sent back to the first judges for a new decision”. It is strange that from 2001 till the time of issuance of NRO—now declared void ab initio being ultra vires in Dr. Mobashir Hassan & Others v Federation of Pakistan & Others PLD 2010 SC 1—no decision was taken by the trial court. The Supreme Court in its judgement of 16 December 2009 did not touch the issue of delays by the trial courts in deciding the matter—why Musharraf kept mum from 2001 to 2007 and did not get Zardari et al convicted by the trial court. Supreme Court did not recommend action against Pervez Musharraf as well for issuing NRO and not prosecuting the looter and launderer—it is a tragedy of our history that men in khaki have always been managing to get away with their unconstitutional actions.
The Swiss Court in its judgement categorically ruled that “Asif Ali Zardari, in concert with Mr. Jens Schlegelmilch, kept the concluded agreement with SCG and Cotecna secret that clearly demonstrated that he was aware of its illicit character”. It was further concluded that “defendants knew that they were acting in a criminally reprehensible manner in obtaining considerable sums in the sole private interest at the cost of the Islamic Republic of Pakistan”.
The above-quoted findings of the Swiss Court and concurrent findings of trial court in Pakistan and High Court, Lahore, proved that colossal money belonging to Pakistan was plundered and laundered. In this background, the defenders of Asif Ali Zardari are oblivious of established position of law that immunity is not available under Article 248 as well as international law under the so-called doctrine of “sovereign immunity”. The experts (sic) speaking on behalf of Zardari are not citing the specific law regarding sovereign immunity under which the President of Pakistan cannot be sued in Switzerland or in Pakistan vis-à-vis charges of alleged financial corruption. They are not aware of the fact that international law prohibits sovereign immunity with regard to commercial activities of foreign States or their agencies or with regard to property taken by a foreign sovereign in violation of international law. In recent times, the customary international law has continued to move towards a restrictive doctrine of sovereign immunity.
The scope of immunity under Article 248 came up for discussion in Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry v President of Pakistan PLD 2010 SC 61 and the honourable apex court made the following observations:
“Another objection raised to the maintainability of this petition was that General Pervez Musharraf, the President of Pakistan, had been impleaded in the said petition as one of the respondents which was offensive of the provisions of Article 248(1) of the Constitution. The said provision reads as under:–
“248. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State 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”.
Such an immunity had been examined by the Privy Council in H.B. 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 purports 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 issue of immunity under Article 248 also came up for interpretation in Ch. Zahur Elahi’s case (PLD 1975 SC 383) and it was held by the Apex Court that “…… 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.”
On the strength of a number of cases, the Supreme Court in its latest judgement[PLD 2010 SC 61] has held that if action is unlawful “no exception could be taken to the impleadment of the President as a respondent in the petition”. In the presence of this judgement, Asif Ali Zardari cannot claim immunity under Article 248 vis-à-vis charges of financial corruption in Pakistan, Switzerland or elsewhere.
Article 248 gives protection to acts done in good faith and cannot be construed to extend blanket cover for unlawful acts. If this argument is accepted then after subverting the Constitution, an office-holder mentioned in Article 248 can escape punishment under Article 6. Certainly in such a case he cannot rely on this ouster provision. The ouster provisions of the Constitution—like Article 248—cannot be interpreted to condone any action that is violative of the law. Money laundering is a crime under the international convention of the United Nations—Pakistan is signatory to it. No Head of State can claim immunity under any international law/convention if guilty of money laundering.
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The writers, legal historians and authors of many books, are members of Visiting Faculty of Lahore University of Management Sciences (LUMS).