After the PM appeared before the Supreme Court on January 19 in the contempt proceedings instituted against him, several ministers and Barrister Aitzaz Ahsan were overly appreciative of the fact that the PM presented himself before the court; they gave the impression that he had done the court a favour.
While this attitude isn't odd on the part of government ministers from the PPP in view of their tradition of virtually worshipping the party, it was odd for Aitzaz Ahsan to point out to the TV channels that "Wazir-e-Azam sahib khud chal kar court aaye". Was that a voluntary act, and did the PM have any other option?
Besides, how will Aitzaz Ahsan justify that despite court direction, the PM's refusal to write to the Swiss courts to reopen the closed cases against President Asif Ali Zardari didn't constitute contempt of court because Aitzaz Ahsan was always of the opinion that the subject letter should have been written?
The only defence could be that the PM defied court instructions because he believes the President enjoys immunity from prosecution under the provisions of Article 248 of the constitution. Doesn't this argument imply that the court doesn't know how to interpret this article?
What would be the consequences of adopting this line of argument are hard to predict. The court has thus far conveyed the impression that immunity provided by Article 248 isn't as pervasive as insisted upon by the PPP (and now by Barrister Ahsan). Can the Supreme Court opt to stay confused for a two-year period?
Article 248, as it appears in the constitution reads as follows: Protection to President, Governor, Minister, etc: The President, 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 the functions of their respective offices or for any act done or purported to be done in the exercise of those powers and exercise of those functions, provided that:
(1) 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 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.
The impression you get after reading the first paragraph of Article 248 is that immunity is available to the President, provincial governors, prime minister, federal ministers, ministers of state, chief ministers and provincial ministers for their actions but only if in exercise of powers constitutionally mandated by their offices.
Actions outside the powers and in performance of functions of their respective offices are not immune to legal scrutiny. Sub-clause (1) clearly states that the provisions of this article can't stop any person from filing a petition against the federal or provincial 'governments'.
Sub-clause (2) conveys the impression that while the federal or provincial governments can be sued, punishment for their misconduct could not be awarded to the 'officeholders' named in Article 248. By implication, bureaucrats, not politicians, would bear the brunt for such (often politically induced) misconduct.
Sub-clause (3) therefore protects the officeholders mentioned in this article from arrest or imprisonment. But sub-clause (4) states that, for any alleged actions of these officeholders in their personal capacities, before or after assuming their offices, civil cases can be lodged against them after giving them a 60-day prior notice.
What isn't clear though is, whether in the event an officeholder is adjudged guilty of an offence, will he or she be exempted from serving a prison sentence. But if you read it with sub-clause (3) the convicted officeholder would be exempted from being arrested and serving a prison sentence.
What is also unclear is whether the tried and convicted officeholders named in this article are obliged to leave their offices or will they continue holding their offices despite their conviction. In a TV talk show, Barrister Aitzaz Ahsan categorically stated that the PM could run his office even from a prison cell. Wow!
What ordinary Pakistanis find odd (with due respect to the constitution) is this part that exempts the said officeholders from punishment despite conviction; it exalts these officeholders to a higher pedestal compared to ordinary Pakistanis, which is in conflict with the provisions of Article 5 sub-clause (2).
The issue is to decide once and for all whether the state can be administered by convicted officeholders. If that is to be permitted, what will be the public perception of the state, and will it then be fair to expect the citizens to protect, defend and submit to the state? Let the Supreme Court decide whether this fear is valid.
There is conflict in the provisions of Articles 5 and 248 because, while Article 5 states that no one is above the law, Article 248 makes a distinction between the officeholders mentioned therein and ordinary citizens of Pakistan by exempting the officeholders from legal scrutiny.
If this conflict is a reality, it reflects on the morality of legislation, if not the intentions of the individual lawmakers. Recent politicking in Pakistan conveys the impression that the officeholders mentioned in Article 248 know about this conflict but, compared to ordinary Pakistanis, want to remain beyond accountability.
Perhaps, that's why the present regime insisted that the officeholders mentioned in Article 248 had immunity, and did not consider it fit for so long (initially on Babar Awan's advice) to seek the Supreme Court's interpretation of the immunity provided by this article despite Supreme Court advice to do so.
In this backdrop, it is for the Supreme Court to decide whether the PM's interpretation of Article 248 is valid. The court obviously can't change the constitution (irrespective of any flaws therein since it is a document authored by the legislature) but is the sole authority to interpret the application and limitations of Article 248.
Globally, democracy is in trouble because democracies face the worst-ever economic crisis caused by governance ranging from defective to reckless. It is time democrats accepted the flaws in democratic governance to make amends there for; case for sustaining democracy in its current state has already been lost.