Iftikhar Chaudhry’s Dangerous Game

The question of whether the President – not Asif Ali Zardari, or Pervez Musharraf, or Muhammad Rafiq Tarar, but the current President only – enjoys immunity during his term of service appears to only be in debate here in Pakistan. After all, it is clearly written in Article 248 of the constitution. Actually, this debate is more than simply academic. The tension that is building between the executive and the judiciary is a dangerous game being played by the Chief Justice, and it threatens much more than Zardari only.

The issue of immunity in the constitution is clear enough for the Swiss, who refuse to reopen any cases against the President as he enjoys immunity.

But he said he can’t reopen the case against Zardari, who was elected president in 2008 after years of battling corruption allegations, because he enjoys “absolute immunity” as a head of state.

“We could go further only if the competent authorities in Pakistan decide to lift the immunity of the head of state, which I do not know whether it is possible according to their constitution,” said Zappelli, speaking in English. “If not, we can’t. Absolutely not. Period.”

Analysts in the international media agree, and has been reporting that the President enjoys immunity as it is clearly written in the Constitution.

BBC News:

Mr Zardari, who is accused of having taken millions of dollars in kickbacks during the time his late wife, Benazir Bhutto, was prime minister, still has presidential immunity from prosecution.

But the Supreme Court insists corruption investigations into his financial affairs must continue.

Christian Science Monitor:

As head of state, Zardari enjoys immunity…

But at home, newspapers are taking a different approach, largely because of the way that the Chief Justice has been pressing the issue. Today, Dawn published an editorial that suggests that whether the President enjoys immunity is the decision of the court.

Immunity in the specific cases must be decided in a court of law and not the court of public opinion.

This is a dangerous precedent.

The Dangerous Game

Chief Justice Iftikhar Chaudhry has said that, if the government will claim immunity for the President, they will have to make the argument in court. The government so far has refused, and rightly so. If the government were to argue before the court that the President enjoys immunity, they will be playing into a trap that will result in a constitutional crisis.

Two results only can happen if the government argues before the court that the President enjoys immunity:

One, the SC could properly accept the argument as it is written in Article 248 of the Constitution. The Court is defined and bound by the constitution, therefore neither it nor any Justice can overrule the constitution. By requiring the executive to come and plead before the court, the court would be creating an asymmetric power dynamic in which it was superior to the executive and held forth the possiblity that it could overrule the constitution, making it a branch above the law.

Two, the court could reject the government’s argument and thereby ignore a clearly written Article of the constitution. If the court acted this way, it would delegitimize itself and, as the Supreme Court of the land, render an absence of a legitimate neutral court of justice in Pakistan. Furthermore, the executive would be required by the constitution to resist this judicial power grab, causing a possible civil war.

A Better Solution

Neither of these outcomes is desirable, but more importantly, neither is necessary. The Chief Justice can simply say, “According to Article 248 of the constitution, the President of Pakistan will not be tried during his term. Any outstanding charges against Zardari will wait until his term expires, at which time we will decide whether to bring them before the court.”

This would allow the Chief Justice to maintain his reputation as a respected Justice because he would clearly be judging by the law and not his personal opinion. Also, it would allow the tension between the judiciary and the executive to defuse so that the government can proceed with the people’s business. For Zardari’s opponents, it would not let him off the hook. Zardari’s term will expire and, if there is merit to the cases, he will be brought to judgment.

In his crusade to humiliate Zardari, Iftikhar Chaudhry is threatening the republic. This week parliament will pass historic legislation that will restore democracy. Don’t let some petty rivalry destroy us when there is a better solution.