Scope of Article 248 of the Constitution: The Immunity Clause

POWERS UNDER ORDER VII, RULE 11, C SCOPE OF ARTICLE 248 OF THE CONSTITUTION : THE IMMUNITY CLAUSE By Muqtedir Akhtar Shabir Advocate, Supreme Court of Pakistan Today we have made an effort to discuss the immunity clause provided in the Constitution. i.e. Article 248 of the Constitution. The question is whether the ruling class of the country enjoy the absolute immunity from the rigor ,of law, are they above the law itself? I am proud to say that no one is above the law in this country. We must first understand that Pakistan is an Islamic Republic and when we are interpreting the provisions of the Constitution we must keep these very basic principles in our mind. Then only, we will be able to properly interpret and understand the Constitution. We are a democratic country and not the kingdom or the dictatorship. The democracy and absolute immunity cannot be said in a same breath under democratic system. If this is so than why is it 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. Article 248 is reproduced below; we shall discuss the nature of immunities and the purpose for which they are made part of the constitution. Now we shall see the most talked about immunity clause in our Constitution i.e. Art. 248. Which reads as under:‑ 248. Protection to President, Governor, Minister, etc. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he 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 (2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. (3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office. (4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of anything done by or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner-prescribed by law, stating the nature of the proceedings, the cause of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims." It is important to mention here that similar kind of protection and immunity clause is provided in an Indian Constitution. Similar kinds of immunities are also given in various countries. Is such kind of provisions are incorporated to protect the ruling elite or there is some other purpose for such immunity clauses? We shall now try to understand the immunity clause in light of Constitution provisions and the courts judgments. The immunity clause shall not be read in isolation we shall before interpreting the immunity clause must understand the intent of these provisions and scheme of our Constitution before we shall draw any conclusion. The President, Governors, Prime Minister and Chief Ministers, 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. We shall now see why there is no absolute immunity to any one in our Constitution. The Constitution of any country is a social contract between the people of that country wherein they decide the rules and regulation for governing their country. If we see preamble of our Constitution we shall see that we the people of Pakistan have sworn our allegiance to Almighty Allah and have declared in our Constitution that sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised with the limits prescribed. by HIM is a sacred trust. Our Constitution also guarantees fundamental rights including equality of status, equality of opportunity before law, social, economic and political justice, and freedom of taught, 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. Preamble of our Constitution is made part of the Constitution by incorporating Article 2-A in our Constitution We have already briefly discussed Article 2-A of the Constitution, which declares the Almighty Allah is sovereign and the authority which He has delegated to the State of Pakistan, is being exercised through its people within the limits prescribed by Him. Having said that we_ must recollect the era of Caliphs, how they being the head of the Muslim.Ummah were always answerable to the people of Ummah and the courts. Khalifa Umer was made accountable in a public meeting by an ordinary person, who inquired from him about his clothing i.e. He was a large person and his clothing took more cloth than an ordinary heighted person. He was inquired by an ordinary person in an open public meeting. How he has managed to stitch a suit from a cloth, whereas the cloth given to him was equal to the cloth given to other people of Ummah and it was not possible to stitch a suit of a person of such large physique? The Khalifa held himself responsible before the Ummah and asked his son to answer the question. His son said that I have gifted my share of cloth to my father and it is only then that he has managed to stitch his suit. We must understand that accountability of the responsible is the basic essence of the Islamic State. Higher the post, more the responsibility Another basic thing we must understand that we have democracy in our country, we are not a kingdom or dictatorship, being a democracy itself require the accountability of the responsible. And no one can claim to be above the 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 Articles 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 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 much more responsibility is put on a candidate aspiring to become the leader of this country. Article 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, honest and amen; 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. Having discussed the scheme of our Constitution, now we address the question of immunity to the President, Prime Minister, Governors, Ministers. One cannot be elected and nominated as President, Governor, Prime Minister, Minister unless they cross this basic qualification clause given in Article 62 of the Constitution and they cannot remain on the seat if they are disqualified by the provisions mention in clause 63. When the criteria of choosing the representative is so high than it is clear that no provision in the Constitution will be of such a nature which gives absolute immunity to any person in the country. If this is the position in our Constitution than, what is the purpose of incorporating Article 248 in our Constitution and how far the immunity provided in this clause protect a person? First of all 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 Article 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 then he is not immune, even though he is performing his official functions. In another case reported in 2004 MLD 976, 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, Supreme Court held in another judgment reported in PLD 1975 SC 383, the immunity provisions must, in accordance with accepted principle of interpretation to be construed strictly and unless persons claiming the immunity comes strictly within the terms of the provisions granting the immunity, the immunity cannot be extended. The immunity is in nature of an exception to the general rules that no one is above the law. 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 proceeding was in fact imperative. . 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 proceeding which are neither pure civil nor criminal proceeding. Contempt proceeding have been declared as a species of its own nature of proceeding. Supreme Court has held in PLD 1975 SC 383(p.393) with respect to the impunity to the Prime Minister against the contempt proceeding as under, "It is not easy to define the exact scope of Prime Minister power and functions, but this much is certain that his powers and functions are derived from. the Constitution. Hence, since neither the Constitution nor any law possibly authorizes 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 then it may be held that the 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 proceeding. The Article 248 does not speak of any immunity to the Prime Minister, Chief Minister etc. from the criminal proceedings. Thus is clear that Prime Minister and the Minister do not enjoy any immunity from the criminal proceeding. 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 now a days i.e. whether the President or Governor of Pakistan enjoys the complete immunity in criminal proceedings? The relevant provisions are reproduced below: Article 248(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. Article 248(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office. There are different arguments advanced to interpret this provisions, some of them are discussed below. These provisions cannot be interpreted in isolation. 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. Our Constitution is Islamic in character, and it declares that every citizen has to abide by the Constitution and naturally the law of the country. It throws more responsibility on the public representative. Naturally by incorporating the immunity clause, the intent of the legislators cannot be to protect the crime but these provisions are incorporated for a purpose 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. We shall see it from other angle. Constitution places very strict qualification clauses for a person seeking to be elected as a representative to the parliament. Which require a citizen of the country to be amen, pious, and a person who follows the injunctions of Islam? 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. If this is so then what is the purpose of inserting clauses (2) and (3) of Article.248 in the Constitution? The only reason for this is that President is the symbol of unity, head of State, commander in chief of the country and his in 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. Whereas, no such immunity is extended to the Prime Minister or Minister under clauses (2) and (3) of Article 248 We shall discuss a situation wherein president acting on the advice of Prime Minister or Minister Order an armed operation against the mutiny or for restoring law and order in the country or declares a war against any country enemy. And during such operations or action some innocent persons are killed. Now any of relative of innocent killed person wants to bring the criminal case against the State or officials or the President or a Governor for ordering such action. Is the President held liable in criminal jurisdiction for such acts because he actually authorized such operation? The law requires everyone to abide by the law and every citizen is bound to show obedience to the Constitution and follow the injunctions of Islam, the argument is made that the protection given under these clauses is only limited to the action taken in official capacity and not for the private acts or crime committed by person holding such privilege and prestigious position. The intents and the scheme of the law and Constitution are not to give licence to commit crimes but by holding the highest positions of the country such persons are expected to be amen, sagacious and law abiding etc. Holding such position as President, Governors, and the person has to act more responsible and in legal and in constitutional manner than any other citizen. The law in fact throws more responsibility on elite of the country than an ordinary citizen. Another argument advanced is that, should the President 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 upshot 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 personal civil acts.