When the corrupt feel protected within a given law then that law loses it’s moral authority. This forces the public to show complete disregard to the system which is the first step towards anarchy. Raja Mujtaba
By Dr. S. M. Rahman
Irrespective of the fact that any immunity to the President, as per Islamic ethos, is inconceivable, and contrary to the Objectives Resolution, which was the preamble in the 1973 Constitution, the present judiciary has not given any verdict one way or the other with respect to this issue. For the Swiss cases against the President, the apex court simply advised to write a letter to the Swiss authorities that the letter written by the Ex-Attorney General, was malafide as he was not competent to write for the withdrawal of the cases against Mr. Asif Zardari and others on the pretext that NRO had given exemption to them from any accountability. In the first place, the Supreme Court’s order was to write letter to the Swiss authorities informing them of the real situation that the letter for withdrawal was not valid, as NRO has been declared ultra vires of the Constitution. The ex-Attorney General Mr. Qayyum had committed an offence as he was not authorised to issue such a letter to the higher Swiss authorities. It was against the propriety of diplomatic norms. It was only to correct the wrong done and to inform the Swiss authorities that NRO stands nullified, and as such to open the cases or to let them remain dormant was the prerogative of the Swiss Courts. Pakistan can not write that they must initiate the cases which were wrongly withdrawn. Presenting a real situation is the moral imperative for Pakistani government.
Swiss government also knows that the President enjoys immunity or what legal international norms exist in this respect. There was absolutely no harm in writing a letter, as it did not presuppose that the case against Mr. Zardari would be opened. Harping on the immunity issue, to my mind, even though I do not possess any legal background, is absolutely a diversionary technique. The PM’s contention that the Supreme Court cannot change the Constitution is again to repeat the very obvious. No one in his true state of mind can say that Supreme Court has the power to amend the Constitution. The Supreme Court, however, has full authority to interpret the Constitution and also nullify any law which is against the spirit of the Constitution. The Parliament has the power to amend but not to abrogate the Constitution. Changing the basic structure of the Constitution or its very spirit does not lie with the Parliament. As per judicial expert Mr. Conrad of Heidelberg University of Germany, Parliament can not change the structure of the Constitution. India’s apex court has followed this principle in its judgments. Amendments should remain within the norms of “amendment”.
The judiciary is quite ethical and moral in its orders against NRO beneficiaries. They have to be suspended till such time, they are cleared by the Courts. The Secretary General of PPP appeared before the Court and he has been cleared. Other beneficiaries of NRO should emulate it. Government’s indifference and deliberate defiance by not honouring the apex court’s orders for the last over nine months, it is guilty of affront to the highest judiciary. The persons who were declared criminals, instead of taking action against them, they were posted on very prestigious and lucrative jobs like Chairman OGDC and Chief Secretary Sindh. In a way, it is a message that it is the Government which understand laws and the Constitution and that the Supreme Court quite naively was not paying any credence to the ‘immunity’ which the President enjoys. If the President, hypothetically, in a fit of rage kills any opposition member of the Parliament/Senate, will he still enjoy immunity? The immunity is never absolute and is subject to interpretation by the Supreme Court
It is not understood why Government is so reluctant to rectify an error which the former Attorney General had committed. By writing a single letter, the Government would have established its credibility. The fear that the Swiss Courts would open the cases, shows that there is a ‘fly in the ointment’ otherwise the apprehension is unfounded. Why should one fear if he has done no crime, any money laundering or any violation of international law?
The dignity of the apex court, after a long time has been established due to the ‘will’ of the people, which has asserted to lend dignity to otherwise a much degraded institution by General Pervez Musharraf, through uncivilized acts, which have never happened in the legal history of the world. By disgracing judiciary, is a way the dictator had humiliated the people of Pakistan. It is ironical, in fact out-rightly immoral on the part of the so called politicians and constitutional experts, who want General Musharraf to stage a comeback and grab political power, the voters being utterly ignorant and gullible. It could only be for utilitarian interests and not the least for Pakistan that they want him back to further pollute the political culture of Pakistan. These are unfortunately the sycophants who inflate the ego of dictators, who are least sensitive to respect the pluralistic structure of our polity. Such flatterers, in my opinion must not be patronized and pampered by the electronic media. It is in the compliance of the judicial orders that lie the true essence of a democratic culture. Islam’s cardinal principle is justice. Media must remain glued for the preservation of democracy and not glorifying its killers.
So far as immunity to the President is concerned, the public opinion is in favour of rectifying the situation, as it is not congruent to the Islamic ideology. Even USA subjected its Presidents to face the legal proceedings. Nixon had to resign from his job and Clinton faced a great ordeal and embarrassment by the prosecution lawyers. The contention that Mr. Zardari is the commander-in-Chief of the armed forces, but so was Nixon, Clinton and even Indira Gandhi. Were not they enjoying the same status? A serving Chief of Army Staff was removed from service in Sri Lanka on charges of criminal offence. Two Israeli Presidents got sacked for sexual offence and embezzlement charges. Immunity was the brain child of Ayub Khan, the first sinner, who set the tradition of Marital Law and thus created a vicious precedence to follow by his successors. General Pervez Musharraf, who has practically destroyed every institution, and by his ‘blind’ subservience to USA, mainly to continue his own hold, Pakistan has been reduced to a vassal state, having no sovereignty whatsoever. Unfortunately, the civil government has the same style of governance – complete subservient to what the USA dictates. The Prime Minister, supposed to be the Chief of the Government is playing second fiddle to the President. It is a gross violation of parliamentary democracy. The President and the Governor of Punjab believe as if democracy only revolves around them. They are hardly the models for our youth to emulate. Only judiciary is conducting itself gracefully and has become a pride of the nation. It is fully determined to eradicate corruption from the society, which is the major determinant of our humiliating image all over the world.
The confrontational stance of the government against the judiciary thus creating a great crisis has been averted though temporarily, widely believed to be due to the involvement of the Army Chief (though not a laudable step on the part of highest civil authority), but somehow this is a ray of hope that ‘sanity, may prevail and the so called hawkish legal experts would be well advised to refrain from misleading the President/Prime Minister from graceful implementation of the Supreme Court orders. There is no other way out. Adlai Stevenson made a very valid observation: “Man does not live by words alone, despite the fact that, some times he has to eat them.”
Dr S. M. Rahman is Secretary General FRIENDS founded by General Mirza Aslam Beg, the former Chief of Army Staff, Pakistan. He is widely acclaimed for his intellectual and scholastic contributions through various mediums. He is widely travelled and has lectured in many renowned universities of the world and Think Tanks.
He has authored several books in global and regional issues. Now he is a regular contributor to Opinion Maker.