Thursday, March 28, 2024
03:44 PM (GMT +5)

Go Back   CSS Forums > General > News & Articles

News & Articles Here you can share News and Articles that you consider important for the exam

Reply Share Thread: Submit Thread to Facebook Facebook     Submit Thread to Twitter Twitter     Submit Thread to Google+ Google+    
 
LinkBack Thread Tools Search this Thread
  #1  
Old Monday, January 18, 2010
Senior Member
Medal of Appreciation: Awarded to appreciate member's contribution on forum. (Academic and professional achievements do not make you eligible for this medal) - Issue reason:
 
Join Date: Jul 2009
Location: Islamabad the beautiful.A dream city indeed
Posts: 828
Thanks: 323
Thanked 332 Times in 223 Posts
niazikhan2 has a spectacular aura aboutniazikhan2 has a spectacular aura about
Post Article 248: what lurks between the lines

Saleem Rizvi

Aside from the far-reaching practical implications of the presidential immunity quandary and its direct consequences for the sitting Pakistani president, there are numerous compelling reasons to explore this issue further. Without understanding its underlying theoretical framework and academic footings, it might forever remain elusive. Needless to say, the nation also needs to move past this political quagmire quickly so that it can focus its energies on other urgent matters relating to security, economy, energy, law and order, education, health care, etc.

Even when steering clear of the tone and motives of the current political bickering, and the legal posturing surrounding the presidential immunity issue, one cannot help wondering why such sweeping immunity, with its conflicting concepts and paradoxical undercurrents, was envisaged and then made part of the 1973 Constitution of Pakistan. One also wonders if such broad immunity can survive rigorous judicial scrutiny, in view of our needs, to build a modern, democratic and egalitarian state to face the challenges of our times. After all, the age of absolute monarchies is long gone, and the dictum, “the king can do no wrong” has been buried.

The commonly known ‘presidential immunity’, as debated in Pakistan, is the creation of Article 248 of the Constitution. The article with the heading, “Protection to president, governor, minister, etc” is structured into four sub-clauses, and it attempts to provide “protection” to certain big guns, belonging to those of the executive branches of the federal and provincial governments, which includes the president, prime minister, all governors, all federal and provincial ministers, all chief ministers, and ministers of state. Before addressing the immunity provided to the biggest of all guns, the president, it may be helpful to understand the legal structure of this article.

Even on a cursory reading of Article 248, it is hard to miss its strikingly faulty linguistic composition. It is not just the grammatical errors; it is in fact the use of shallow ordinary language, devoid of sound legal meanings, which are most baffling. The sub-clause (1) of Article 248, while referring to the president and other aforesaid executive officials, mandates that they “…shall not be answerable to any court for the exercise of powers and performances of functions of their respective offices.” It is hard to imagine any plausible rationality behind the creation of such an unjustifiably broad protection.

Moreover, how should a legal mind, or even a lay person, interpret such language? For instance, what does the word “answerable” mean in this context? In ordinary usage, its meaning might appear clear, but in a legal setting, it fails to provide any legally interpretable concept. Assuming this article is attempting to invoke the doctrine of separation of powers, it does fail to do so here in an unambiguous manner. At best, it seems to be a cheap imitation of Article 361 of the Indian constitution. What does it mean when the article refers to “the exercise of powers and performances of functions of their respective offices”? Does it protect such officials against civil damage liability only, or is it a blank cheque meant to protect all their official acts, no matter how grossly negligent?

If only the offices and not the officials in their personal capacity are protected, then why are the “proceedings” against the federation or province permitted? There are a plethora of questions, the discussion of which lies beyond the scope of this article. Nevertheless, it is critical to note that some fundamental interpretation challenges do exist. What was in the minds of the drafters of this article in terms of its purpose and extent? Even on the surface, signs of flimsy language are visible. Article 248(3) is one such example. Not only does it contain a glaring grammatical error, it does seem to run contrary to the basic spirit and structure of the constitution. It would certainly be a welcome step if the current Special Committee of Parliament on Constitutional Reform can focus on Article 248 as well correct the language therein at the very least.

In the entire article, sub-clause (2) is the most troubling. Does the bare language of this sub-clause make any sense in view of the broader constitutional framework and its fundamental spirit? If one reads this article in its entirety, it tends to raise more questions than it answers. How should one distinguish Article 248(2) from Article 242(4)? Shouldn’t criminal conduct be confronted more seriously than mere civil misconduct? What are the jurisprudential and policy considerations for providing Article 248(2) protection in such seemingly categorical terms?

As per Article 248(2), if the president and governors cannot be brought to justice for criminal conduct while in office, then are there any other legal mechanisms available to hold them accountable if they commit a serious crime while in office? If not, why not? How must one interpret this article if the president, for example, intentionally and unjustifiably kills a person? Should he still be afforded the immunity granted by Article 248? How can the legal system hold him or her accountable in the face of serious crimes? Where should the line be drawn? How should the rights of a victim of a crime be protected if the crime is perpetrated by the president? Are there any conflicts between the language of Article 248(2) and the basic constitutional rights of a victim who wants to hold the perpetrator accountable? It is also interesting to note the article, for some reasons, does not adorn the prime minister’s cap with a feather of such extraordinary protection.

About the purpose and extent of presidential immunity as exercised in the US, the Supreme Court there held that the president has the privilege of immunity from civil liability damage actions for his official conduct, but such absolute immunity is not extended to cover his unofficial conduct. Presidential immunity is not considered a special privilege enjoyed solely by one person by the nature of his office. Instead, it is an area carved out to ensure that the president can perform his public functions without the fear of unnecessary and frivolous damage liability suits. It is worth noting that the US constitution does not explicitly create presidential immunity, rather it is the creation of the US Supreme Court, partly on the basis of the doctrine of separation of powers.

It is also important to note that a US president, even while in office, does not enjoy absolute immunity for his private conduct against civil liability damage actions. There is an overwhelming consensus among jurists that a US president has no such absolute immunity when it comes to criminal prosecution, while in or out of office. Moreover, in this context, the distinction between private and public conduct is meaningless as no one in his right mind can possibly claim immunity for his criminal conduct, calling it his official function. Wouldn’t it be absurd if a president claims protection for his act of murdering someone or of bribe taking as part of his official conduct? Criminal acts can never be protected as official conduct, and private criminal acts are not protected by presidential or even sovereign immunity.

The constitution is a living and organic document and it must be interpreted in the same spirit and fashion. Even when a state constitution is flawlessly drafted, conflicting views are bound to arise, and this is where the courts’ role becomes critical. The courts are responsible for interpreting the constitution. For instance, the number of constitutional cases decided by the US Supreme Court is in the thousands.

Therefore, the fundamental focus of our efforts ought to be the protection of our state institutions’ integrity, not the protection of individuals at the expense of institutions.

Only through robust reasoning, deep analytical analysis, and unbiased judicial interpretation, one can hope to render clear and reasonable meanings to such contentious issues. In this backdrop, one wonders if any guidance is available through the record of constitutional debates, which may have taken place during the drafting of Article 248, or did it just so happen that it was blindly or conveniently “borrowed” from the Indian constitution without any meaningful deliberation. Perhaps a still living drafter of the 1973 constitution may shed some light on this question.

The writer is a lawyer based in New York. Email: saleemsrizvi@ yahoo.com
Reply With Quote
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Constitution of the United States Muhammad Adnan General Knowledge, Quizzes, IQ Tests 3 Saturday, February 01, 2020 02:25 AM
Pakistan's History From 1947-till present Sumairs Pakistan Affairs 13 Sunday, October 27, 2019 02:55 PM
Constitution (Seventeenth Amendment) Act, 2003 moonsalpha News & Articles 0 Monday, March 23, 2009 02:32 AM
CONVENTION of OIC on combating international terrorism MUKHTIAR ALI Current Affairs Notes 1 Wednesday, May 16, 2007 11:10 AM
Amnesty International free thinker General Knowledge, Quizzes, IQ Tests 4 Wednesday, April 26, 2006 12:27 AM


CSS Forum on Facebook Follow CSS Forum on Twitter

Disclaimer: All messages made available as part of this discussion group (including any bulletin boards and chat rooms) and any opinions, advice, statements or other information contained in any messages posted or transmitted by any third party are the responsibility of the author of that message and not of CSSForum.com.pk (unless CSSForum.com.pk is specifically identified as the author of the message). The fact that a particular message is posted on or transmitted using this web site does not mean that CSSForum has endorsed that message in any way or verified the accuracy, completeness or usefulness of any message. We encourage visitors to the forum to report any objectionable message in site feedback. This forum is not monitored 24/7.

Sponsors: ArgusVision   vBulletin, Copyright ©2000 - 2024, Jelsoft Enterprises Ltd.