Doctrine of 'sovereign immunity'

Pakistan these days is in the grip of a controversial debate about waiver from criminal proceedings available to the President of Pakistan under Article 248(2) of the 1973 Constitution and sovereign immunity in other countries under international law.
The background of this heated debate is the judgement of the apex court, asking the Federal government to undo unlawful withdrawal of its claim of laundered money in Switzerland, generated through kickbacks received from the SGS and Cotecna, two Swiss companies hired for pre-shipment clearance in Pakistan. According to the judgement delivered by Swiss Judge Daniel Devaud in 2003, this money 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. Now, the Supreme Court has asked the government to revive the matter in Switzerland for claim of money looted from the Pakistani taxpayers and the masses.
In the concluding part of his judgement, the Swiss Magistrate did mention that by judgement of 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 judgement 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 ultra vires of Constitution - no decision was taken by the court despite clear instructions from the apex court. The honourable apex court in its judgement of 16 December 2009 did not touch the issue of delays by the trial courts in deciding the matters. The Swiss court, after considering the law, concluded as follows:
-- "That by taking useful means to enrich herself or enrich her husband by way of a contract concluded for the state of which she assumed the supreme direction, the Prime Minister of Pakistan was guilty, at least, of acts relating to the unfair management of the public interests which she had the mission of defending;
-- That nothing effectively permits the conclusion that the SGS and Cotecna, for themselves, Hans Fischer and Robert MASSEY, had consented to a sacrifice of more than US $5 million for the sole purpose of making a donation, without compensation, to the couple Bhutto-Zardari. These payments were without a doubt made in order to obtain the desired contract, in such a manner that the SGS and Cotecna therein found their benefit.
-- If Benazir Bhutto had acted fairly, it would not be herself or her husband, but rather the State of Pakistan, which should have benefited, by example in the form of a discount on amounts billed by the SGS and Cotecna, from the financial sacrifice that the SGS and Cotecna were prepared to make.
-- That precautions taken by Asif Ali Zardari in concert with Jens Schlegelmilch in order to keep the concluded agreement secret clearly demonstrate that he was aware of its illicit character.
-- That in summary, Benazir Bhutto thus knew that she was acting in a criminally reprehensible manner by abusing her role in order to obtain for herself or her husband, considerable sums in the sole private interest of her family at the cost of the Islamic Republic of Pakistan".
The above findings of the Swiss Court and concurrent findings of trial court in Pakistan and High Court, Lahore, prove that huge money belonging to Pakistan was plundered and laundered. In this background, the defenders of Asif Ali Zardari are oblivious of established position in international law that sovereign immunity is not available in cases where financial crimes are committed through contracts signed by the states or their agencies.
The experts 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 any other country vis-à-vis charges of alleged financial corruption.
They are not aware of the fact that the 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 the international law. In recent times, the customary international law has continued to move towards a restrictive doctrine of sovereign immunity.
Until the twentieth century, mutual respect for the independence, legal equality, and dignity of all nations was thought to entitle each nation to a broad immunity from the judicial process of other states.
This immunity was extended to heads of state, in both their personal and official capacities, and to foreign property. With the emergence of socialist and Communist countries after World War I, the traditional rules of sovereignty placed the private companies of free enterprise nations at a competitive disadvantage as compared to state-owned companies from socialist and Communist countries, which would plead immunity from lawsuits.
European and US businesses that engaged in transactions with such companies began to insist that all contracts waive the sovereign immunity of the state companies. This situation led the courts to reconsider the broad immunity and adopt instead, a doctrine of restrictive immunity that excluded commercial activity and property.
Western European countries began waiving immunity for state commercial enterprises through bilateral or multilateral treaties. In 1952 the US Department of State decided that, in considering future requests for immunity, it would follow the shift from absolute immunity to restrictive immunity. In 1976, Congress passed the Foreign Sovereign Immunities Act (28 USCA § 1601 et seq.) to provide foreign nations with immunity from the jurisdiction of US Federal and state courts in certain circumstances.
This act, which strives to conform to 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. Customary international law has continued to move towards a restrictive doctrine.
There is no automatic Crown immunity in Australia. Article 88 of the Constitution of Belgium states: The King's person is inviolable; his ministers are accountable. Article 13 of the Constitution of Denmark states: The King shall not be answerable for his actions; his person shall be sacrosanct. The Ministers shall be responsible for the conduct of the government; their responsibility shall be determined by Statute.
In Malaysia, an amendment to the constitution in 1993 made it possible to bring proceedings against the king or any ruler of a component state in the Special Court. Prior to 1993, rulers, in their personal capacity, were immune from any proceedings brought against them. Applying this principle, the legitimate demand from Asif Ali Zardari is to surrender ill-gotten wealth from contracts signed by the government of Pakistan with the Swiss company, something which has nothing to do with Article 248(2) of the Pakistan Constitution.
Nobody is interested in criminal prosecution of the President of Pakistan. The prime interest of the nation is to get its unlawfully transferred money back in the Treasury.
The UK, from where we inherited our legal system, also drastically altered its position on sovereign immunity through the Crown Proceedings Act 1947 that made the government generally liable, with limited exceptions, in tort and contract. Even before, it was possible to claim against the Crown with the Attorney-General's fiat (ie, permission).
This was called a petition of right. Alternatively, Crown servants could be sued in place of the Crown (and the Crown as a matter of course paid). Further, mandamus and prohibition were always available against ministers because they were derived from the prerogative. However, even after the Crown Proceedings Act 1947, lawsuits against the Sovereign in his or her personal, private capacity are still inadmissible in British law.
The framers of 1973 Constitution, unfortunately, followed the model of constitutional monarchies by inserting Article 248. In such countries the sovereign is the historical origin of the authority which creates the courts. Thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign for the protection of his or her subjects.
This concept is against the teachings of the holy Quran that unequivocally commands that sovereignty belongs to Allah Almighty and no person - king or elected-person - is above law. The Quranic commands are binding on all. The holy Quran says "You who believe uphold justice and bear witness, even if it goes against yourselves, your parents, or your close relatives" (4:135).
How hypocritical the rulers/law-makers of this Land of the Pure are: preamble of 1973 Constitution starts with the words that "sovereignty over the entire universe belongs to Almighty Allah alone", but they claim immunity for president/governors from criminal proceedings in utter violation of Qur'anic injunctions.
Tragically, we are still following the concept of 'sovereign' king embodied in constitutional monarchies. This is shameful for a state that claims to be an Islamic Republic. History confirms that Khulafa-e-Rashideen (rightly-guided rulers) appeared in person in courts to defend charges levelled against them by the citizens - Muslims or non-Muslims.
The first thing the parliament should do is to scrap Article 248 of the Constitution. All the politicians, judges, generals should be answerable before the people and their accountability should be the starting point of democratisation of society.
The honourable apex court as a starting point must ask all the judges to place their declaration of assets and liabilities on its website as has been done in India recently. Once it is done, all the politicians should be asked to disclose and explain the sources of their assets and incomes - there should be no immunity for anyone, but targeting President alone is equally unjustifiable.
As regards the true import and scope of Article 248, it gives protection to acts done in good faith exercising the high state offices. It cannot be construed to give blanket immunity to unlawful acts committed while holding the office. 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 of the land. Money laundering is crime under the international convention of the United Nations - Pakistan is signatory to this convention. No head of state can claim immunity under any international law/convention if guilty of money laundering.
(The writers, lawyers and authors of many books, are Adjunct Professors at Lahore University of Management Sciences (LUMS)