Published in the 22 December 2009 issue of the Daily Times newspaper in Pakistan
http://www.dailytimes.com.pk/default.asp?page=2009\12\22\story_22-12-2009_pg3_5
Sovereign immunity: the final refuge —Taimur Malik
Another form of immunity is available to President Zardari and it emanates not from local legal protections but from international legal norms. This international legal doctrine of ‘sovereign immunity’ arguably grants immunity to the president as the ‘Head of State’ with respect to the cases in the Swiss courts and elsewhere
The king can do no wrong or in our case the president and the governors can do no wrong! The comparison between sovereign kings in medieval times and the present day rulers of this country is the corollary of Article 248(2) of the Constitution of Pakistan, which states that “no criminal proceedings whatsoever shall be instituted or continued against the president or a governor in any court during his term of office.” In the present circumstances, one can be forgiven for showing disdain at the existence of such a provision in the country’s much lauded original version of the 1973 Constitution. However, we need to remember that most countries provide such immunities, to varying degrees, to their heads of state even in this day and age.
Many political commentators and legal analysts have stated that if the question arises before the Supreme Court, the apex court may declare Article 248 contrary to the spirit of the Constitution and indeed at least one constitutional petition has already been filed in this respect. There are others who believe that this protection has been available to all and sundry and striking down this provision now will aggravate the grievances of a particular province. The young consider such an immunity to be inconsistent with the notion of equal rights, democracy and accountability. Indeed, the concept does have a ‘with more power comes more protection’ notion about it.
Discussions with people from all cross-sections of society suggest that people were expecting the Supreme Court to deal with this question in the NRO judgment along with ruling on President Asif Ali Zardari’s eligibility (or otherwise) for the post of the president. Although the detailed judgment is still awaited, the public needs to understand that the superior judiciary should be commended for showing restraint in this respect and allowing space for other pillars of the state to do their part.
In any event, much is being written about this constitutional immunity available to the president in the post-NRO judgment scenario and the presidential spokesman did not waste much time in bringing it to the nation’s attention immediately after the announcement of the apex court’s short order. It is likely that this question will probably be answered one way or the other in the near future. It may be time to move on from this concept of ‘absolute’ immunity to a more restricted immunity only for acts done in the performance of the president’s lawful duties.
However, another form of immunity is available to President Zardari and it emanates not from local legal protections but from international legal norms. This international legal doctrine of ‘sovereign immunity’ arguably grants immunity to the president as the ‘Head of State’ with respect to the cases in the Swiss courts and elsewhere.
An example of the broad immunity provided to a foreign ‘sovereign’ before domestic courts is the 19th century case of Mighell versus Sultan of Jahore. In this case, the ruler of a tiny principality successfully claimed immunity from a suit with respect to an action against him for breach of promise of marriage. The English lady who was made a promise of marriage under a false name by the Sultan was left without a remedy because the British court held that the Sultan had immunity even though he was there on a private visit. More recently, sovereign immunity was successfully claimed by Saudi princes in a high profile 9/11-related case before the US courts.
The Pinochet cases in the UK courts a decade ago presented the first opportunity of seriously assessing the customary international law practise of absolute immunity accorded to foreign sovereigns from domestic legal processes.
Lord Browne-Wilkinson observed in the Pinochet case: “It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate in the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of the head of state persists to present day: the head of state is entitled to the same immunity as the state itself.”
Amongst the various issues considered by the courts in these cases, one of the significant observations was that any loss of immunity of General Augusto Pinochet — former president of Chile — only related to crimes against humanity, war crimes, torture and genocide, etc. Crimes against humanity are listed in Article 7 of the Rome Statute of the International Criminal Court (ICC). In the context of the ICC’s Statute, corruption, money laundering and tax evasion cannot be treated as crimes against humanity.
Indeed at one time states enjoyed absolute immunity and proceedings against foreign states were inadmissible without their consent. However, these days a more restrictive approach to the concept of immunity is adopted by courts around the world. Under this restrictive approach, courts recognise immunity for acts carried out by a state in the exercise of its sovereign authority but are likely to deny immunity for acts of a commercial or private nature. Nevertheless, legal academics are of the opinion that this restrictive approach does not affect the sovereign immunity enjoyed by heads of state.
Moreover, the doctrine of sovereign immunity has recently been codified by the UN Convention on Jurisdictional Immunities of States and their Property (2004). Even this modern day embodiment of the norms of customary international law preserves the concept of sovereign immunity for heads of state and Article 3 (2) of the Convention states that “the present Convention is without prejudice to privileges and immunities accorded under international law to heads of state ratione personae (absolute immunity of the person).”
Accordingly, while it is possible for the Supreme Court to adjudicate on Article 248 of the Constitution of Pakistan and remove the president’s immunity, it will be difficult if not impossible, in the absence of an express waiver of immunity by the government of Pakistan, to lift the sovereign immunity that will most likely be available to President Zardari in respect of cases in foreign jurisdictions. Some people have all the luck!