MZUBAIR
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Well said bro
Court cannot call President: Fauzia Wahab
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Well said bro
MZUBAIR
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Where u think the problem is..........Gov or in religion?
xenia
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Controversy over Zardaris immunity
By Hussain H. Zaidi
Sunday, 31 Jan, 2010 | 12:53 AM PST |
AS the Supreme Courts detailed judgment in the National Reconciliation Ordinance (NRO) case stripped the president of his immunity available to him under the constitution? Or is he still immune from prosecution for his acts of omission and commission?
The presidential immunity is guaranteed by Article 248 of the constitution. Para 2 of Article 248 provides: No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. Para 3 of the same article adds: No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.
However, para 4 of Article 248 provides that 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 by 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.
Thus the Constitution provides blanket immunity to the president, as well as a provincial governor, in respect of criminal proceedings as indicated by the terms No and whatsoever in the relevant clause of Article 248. No distinction has been made between the acts performed by the president in his official capacity and those performed by him in his personal capacity. This means that the immunity covers both types of acts. Speaking, purely hypothetically, even if the president shoots the prime minister on the floor of the National Assembly, he cannot be prosecuted.
This immunity is available with regard to both fresh proceedings and those pending before the president entered his office. Not only that, the president as long as he holds his office cannot be arrested or imprisoned. It is pertinent to mention that Article 248 does not provide that criminal proceedings against the president shall be terminated the moment he takes oath of his office. What it provides is that any previous criminal proceedings will be put on hold. This immunity notwithstanding, the president can be tried by parliament on the charge of gross misconduct or violating the constitution, which is the only constitutional way of removing him.
However, civil proceedings against the president may be initiated, subject to two conditions: One, the civil proceedings can be instituted only against the acts of omission and commission of the president performed in his personal capacity regardless of whether he performed those acts before or after he assumed his office. Two, the president must be informed at least 60 days before the institution of the proceedings.
Here one important question arises: Why is immunity from criminal proceedings available to the president or a governor while the same is not available to the prime minister, a chief minister or a federal or provincial minister? Specifically, why is the immunity available at all when it is in conflict with the right to equality before law and equal protection of law, a fundamental right guaranteed by Article 25 of the constitution? To answer this question, one needs to trace the roots of the immunity of the head of state.
At the very outset, it needs to be mentioned that the immunity of the head of state is almost a universal phenomenon. The concept of immunity of the head of state is derived from the principle of sovereign immunity stating that the sovereign can do no wrong. This is only logical, because the sovereign being the source of laws must be beyond any prosecution at all. This concept is applied in what are called constitutional monarchies, such as the United Kingdom, where in theory the monarch is the fountain of justice and is historically regarded as the source of laws and creator of courts. This immunity is sweeping covering both civil and criminal matters.
Moreover, in constitutional monarchies, the king or queen is merely a titular head, who always acts on the advice of his or her ministers. Hence, the phrase, The King can do no wrong. However, in none of the constitutional monarchies, the immunity is available to the prime minister or the members of his cabinet the real executive.
But what about republican countries having an elected head of state opposed to a hereditary one? Is immunity available to the head of state in the republics? Here we may distinguish between the republics where the head of state is merely a titular head and effective powers are exercised by the cabinet (India, for instance) and those where the president is also the chief executive (such as the USA).
The president in India enjoys immunity against criminal proceedings. Article 361 (2) of Indian constitution provides that No criminal proceedings whatsoever shall be instituted against the President, or the Governor of a State, in any court during his term of office.
However, under para 4 of the same article, civil proceedings may be instituted against the president for any act done by him/her in her personal capacity, whether done before or after he/she assumed her office, subject to at least two months notice. Thus immunity available to the president in both India and Pakistan is similar in its scope and limits. Needless to say, the provisions governing presidential immunity are borrowed by Pakistans constitution from Indias.
In states like India and Pakistan, the president is not sovereign. Nor is he regarded as the source of laws or the creator of courts or the fountain of justice. Then why does he enjoy immunity? The reason is that in those countries the president is the symbol of the federation and all actions of the federation are taken in his name. He is supposed to be above party politics and represents the whole country rather than one party or one region.
His office thus commands a lot of respect. In India, as well as in the 1973 constitution of Pakistan in its original shape, the president is supposed to act only on the advice of the cabinet or the prime minister. On the other hand, the ministers including the prime minister represent a political party, are in no way regarded as a symbol of the federation and exercise effective powers. Therefore logically they do not have the umbrella of constitutional immunity.
One of the anomalies in the 1973 constitution as amended is that whereas the president has been made all powerful, he still retains his immunity from criminal proceedings. However, for better or for worse the immunity still exists and cannot be taken away unless the constitution is amended.
In the USA, the presidential immunity does not spring from written provisions of the constitution but it has been conferred on him by the courts to ensure effective and smooth functioning of the office of the president.
There are thus three reasons in the main for head of state immunity: traditions and customs, effective and smooth functioning of the executive, and the idea of head of state being a non-controversial figurehead representing national unity.
Coming back to the NRO case, the presidential immunity was not questioned before the Supreme Court. Nor does the detailed judgment contain any reference to that. However, the judgment orders the executive to approach the Swiss government for re-opening of the corruption cases in which the president is a co-accused, which were initiated years before he entered his office. Now the question is whether the president enjoys immunity in Swiss courts as well. Obviously Article 248 of Pakistans constitution is not binding on the Swiss courts.
Hence, a case for the presidents immunity in Swiss courts, or for that matter in the courts of any other country, cannot be made on the basis of his immunity from criminal proceedings in Pakistan. The Presidents immunity in foreign courts rests on the principle of sovereign immunity as applied in international law, whereby one head of state cannot be prosecuted in the courts of another state. However, as in case of diplomatic immunity, the presidential immunity can be waived voluntarily.
Hence, a queer situation will arise if the government itself requests the Swiss courts to try the president of Pakistan. It is difficult to recall any other example where the government of a country requested another country for the criminal trial of its own de jure head of state. And whether we like it or not, Mr Zardari is the de jure president of Pakistan. Probably the authors of the NRO did not visualize such a situation.
hussainhzaidi@gmail.com
By Hussain H. Zaidi
Sunday, 31 Jan, 2010 | 12:53 AM PST |
AS the Supreme Courts detailed judgment in the National Reconciliation Ordinance (NRO) case stripped the president of his immunity available to him under the constitution? Or is he still immune from prosecution for his acts of omission and commission?
The presidential immunity is guaranteed by Article 248 of the constitution. Para 2 of Article 248 provides: No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term of office. Para 3 of the same article adds: No process for the arrest or imprisonment of the President or a Governor shall issue from any court during his term of office.
However, para 4 of Article 248 provides that 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 by 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.
Thus the Constitution provides blanket immunity to the president, as well as a provincial governor, in respect of criminal proceedings as indicated by the terms No and whatsoever in the relevant clause of Article 248. No distinction has been made between the acts performed by the president in his official capacity and those performed by him in his personal capacity. This means that the immunity covers both types of acts. Speaking, purely hypothetically, even if the president shoots the prime minister on the floor of the National Assembly, he cannot be prosecuted.
This immunity is available with regard to both fresh proceedings and those pending before the president entered his office. Not only that, the president as long as he holds his office cannot be arrested or imprisoned. It is pertinent to mention that Article 248 does not provide that criminal proceedings against the president shall be terminated the moment he takes oath of his office. What it provides is that any previous criminal proceedings will be put on hold. This immunity notwithstanding, the president can be tried by parliament on the charge of gross misconduct or violating the constitution, which is the only constitutional way of removing him.
However, civil proceedings against the president may be initiated, subject to two conditions: One, the civil proceedings can be instituted only against the acts of omission and commission of the president performed in his personal capacity regardless of whether he performed those acts before or after he assumed his office. Two, the president must be informed at least 60 days before the institution of the proceedings.
Here one important question arises: Why is immunity from criminal proceedings available to the president or a governor while the same is not available to the prime minister, a chief minister or a federal or provincial minister? Specifically, why is the immunity available at all when it is in conflict with the right to equality before law and equal protection of law, a fundamental right guaranteed by Article 25 of the constitution? To answer this question, one needs to trace the roots of the immunity of the head of state.
At the very outset, it needs to be mentioned that the immunity of the head of state is almost a universal phenomenon. The concept of immunity of the head of state is derived from the principle of sovereign immunity stating that the sovereign can do no wrong. This is only logical, because the sovereign being the source of laws must be beyond any prosecution at all. This concept is applied in what are called constitutional monarchies, such as the United Kingdom, where in theory the monarch is the fountain of justice and is historically regarded as the source of laws and creator of courts. This immunity is sweeping covering both civil and criminal matters.
Moreover, in constitutional monarchies, the king or queen is merely a titular head, who always acts on the advice of his or her ministers. Hence, the phrase, The King can do no wrong. However, in none of the constitutional monarchies, the immunity is available to the prime minister or the members of his cabinet the real executive.
But what about republican countries having an elected head of state opposed to a hereditary one? Is immunity available to the head of state in the republics? Here we may distinguish between the republics where the head of state is merely a titular head and effective powers are exercised by the cabinet (India, for instance) and those where the president is also the chief executive (such as the USA).
The president in India enjoys immunity against criminal proceedings. Article 361 (2) of Indian constitution provides that No criminal proceedings whatsoever shall be instituted against the President, or the Governor of a State, in any court during his term of office.
However, under para 4 of the same article, civil proceedings may be instituted against the president for any act done by him/her in her personal capacity, whether done before or after he/she assumed her office, subject to at least two months notice. Thus immunity available to the president in both India and Pakistan is similar in its scope and limits. Needless to say, the provisions governing presidential immunity are borrowed by Pakistans constitution from Indias.
In states like India and Pakistan, the president is not sovereign. Nor is he regarded as the source of laws or the creator of courts or the fountain of justice. Then why does he enjoy immunity? The reason is that in those countries the president is the symbol of the federation and all actions of the federation are taken in his name. He is supposed to be above party politics and represents the whole country rather than one party or one region.
His office thus commands a lot of respect. In India, as well as in the 1973 constitution of Pakistan in its original shape, the president is supposed to act only on the advice of the cabinet or the prime minister. On the other hand, the ministers including the prime minister represent a political party, are in no way regarded as a symbol of the federation and exercise effective powers. Therefore logically they do not have the umbrella of constitutional immunity.
One of the anomalies in the 1973 constitution as amended is that whereas the president has been made all powerful, he still retains his immunity from criminal proceedings. However, for better or for worse the immunity still exists and cannot be taken away unless the constitution is amended.
In the USA, the presidential immunity does not spring from written provisions of the constitution but it has been conferred on him by the courts to ensure effective and smooth functioning of the office of the president.
There are thus three reasons in the main for head of state immunity: traditions and customs, effective and smooth functioning of the executive, and the idea of head of state being a non-controversial figurehead representing national unity.
Coming back to the NRO case, the presidential immunity was not questioned before the Supreme Court. Nor does the detailed judgment contain any reference to that. However, the judgment orders the executive to approach the Swiss government for re-opening of the corruption cases in which the president is a co-accused, which were initiated years before he entered his office. Now the question is whether the president enjoys immunity in Swiss courts as well. Obviously Article 248 of Pakistans constitution is not binding on the Swiss courts.
Hence, a case for the presidents immunity in Swiss courts, or for that matter in the courts of any other country, cannot be made on the basis of his immunity from criminal proceedings in Pakistan. The Presidents immunity in foreign courts rests on the principle of sovereign immunity as applied in international law, whereby one head of state cannot be prosecuted in the courts of another state. However, as in case of diplomatic immunity, the presidential immunity can be waived voluntarily.
Hence, a queer situation will arise if the government itself requests the Swiss courts to try the president of Pakistan. It is difficult to recall any other example where the government of a country requested another country for the criminal trial of its own de jure head of state. And whether we like it or not, Mr Zardari is the de jure president of Pakistan. Probably the authors of the NRO did not visualize such a situation.
hussainhzaidi@gmail.com
alibaz
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xenia
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Sovereign Immunity Under International Law
Under international law, foreign heads of state, whether monarchs or presidents, embody in their persons the sovereignty of their states and when they visit or pass through the territory of another sovereign and independent country, they are wholly exempted from the local jurisdiction, both civil and criminal.
The monarch or president will be covered by this immunity even if he enters into a contract of marriage under a fictitious name.
Hence in Mighell v. Sultan of Johore, the Sultan of Johore in India, whilst visiting England became engaged to a young English woman to whom he disclosed his untrue identity as that of Albert Baker. The Sultan, having failed to fulfill his promise of marriage, the lady attempted to sue him for breach of promise of marriage. It was held by the British Court that a ruler of an independent sovereign state, Johore, having been so regarded for that purpose, the ruler was immune from legal process unless he decided to wave his immunity and to submit to jurisdiction.
Sovereign Immunity And Governor DSP Alamieyesiegha
article 248 n 25 may be considered clashing if the court resorts to judicial review (iftikhar ch is not a simple man!) n if one reads the NRO verdict one can smell rats for sure..the way it emphasized the principle of equality in islam n the recovery of money from swiss courts by marco..these are definitely pointing to SC intentions...
How Philippines recovered Marcos money
DAWN.COM | Pakistan | No law could be made which perpetuated corruption: SC
for now.....fingers crossed!!
Under international law, foreign heads of state, whether monarchs or presidents, embody in their persons the sovereignty of their states and when they visit or pass through the territory of another sovereign and independent country, they are wholly exempted from the local jurisdiction, both civil and criminal.
The monarch or president will be covered by this immunity even if he enters into a contract of marriage under a fictitious name.
Hence in Mighell v. Sultan of Johore, the Sultan of Johore in India, whilst visiting England became engaged to a young English woman to whom he disclosed his untrue identity as that of Albert Baker. The Sultan, having failed to fulfill his promise of marriage, the lady attempted to sue him for breach of promise of marriage. It was held by the British Court that a ruler of an independent sovereign state, Johore, having been so regarded for that purpose, the ruler was immune from legal process unless he decided to wave his immunity and to submit to jurisdiction.
Sovereign Immunity And Governor DSP Alamieyesiegha
article 248 n 25 may be considered clashing if the court resorts to judicial review (iftikhar ch is not a simple man!) n if one reads the NRO verdict one can smell rats for sure..the way it emphasized the principle of equality in islam n the recovery of money from swiss courts by marco..these are definitely pointing to SC intentions...
How Philippines recovered Marcos money
DAWN.COM | Pakistan | No law could be made which perpetuated corruption: SC
for now.....fingers crossed!!
rameez ahmed
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Brother IF you are saying that you will accept Constitution in place of Quran , then you are destroying your after life... Its up to you .. you are answerable to ALLAH for your deeds..
As far as as it is i concern that whose interpretation I prefer ?
Answer to this is, I listen from the Islamic scholars and my teachers and search it my self in the Quran and Books of Hadiths as far as possible... And according to that she has committed a great sin by giving preference to our so called man made constitution, on the Word of Allah.. I respect every Scholar and at least listen to them that what they have to say. And if it is in accordance with Quran I apply it in my life ... If the teaching is contradicting with Quran we have every right to convey it to the Scholar, but in a respectful manner because he is also a man and can commit mistake...
I know very well what the Constitution of Pakistan is and have studied it.. But you know what Its says "No law will be passed that is against the teachings of Islam" .
Then why is that so we are still Having Interest Based Banking that is Declared Haram in Islam and Court is doing NOTHING in this regard....
If the constitution says "no law will be passed according to teaching of Islam then why is that so She gave preference to the constitution over Quran...
I know that our constitution is Islamic .. But there are many amendments that are necessary to be made in it to declare it A PURE ISLAMIC CONSTITUTION..
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Yes surly it is in contradiction to basic teachings of Islam and as per our constitution no law could exist which is against those. Secondly pardoning of crimes is also prohibited, this right only exist with the affected person/ kins.
BUT Why we are making hue and cry now ? where were we since last 37 years? No one declared those un-Islamic even Islamic ideology council had been certifying that no law in constitution is against the teachings of Islam but now everyone is worried. Things should not move with personalities may it be prohibiting or allowing third tenure, graduation requirement for contesting election or immunity or any bla thing.
rameez ahmed
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What does she mean, our constitution of 1973 is better than the system during reign of second Caliph?
She should be ashamed of herself and beg touba from Allah.
Agreed with you .. but I think she will defend herself on her statement (its only my expectation.)... How pity
My Allah give us the True Wisdom that Allah gave to the Companions Of Holy Prophet (SA)... Even If Allah give us 1 or 2 Percent of that Wisdom , we can recognize that she has said very wrong ....
Pak123
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Yes surly it is in contradiction to basic teachings of Islam and as per our constitution no law could exist which is against those. Secondly pardoning of crimes is also prohibited, this right only exist with the affected person/ kins.
BUT Why we are making hue and cry now ? where were we since last 37 years? No one declared those un-Islamic even Islamic ideology council had been certifying that no law in constitution is against the teachings of Islam but now everyone is worried. Things should not move with personalities may it be prohibiting or allowing third tenure, graduation requirement for contesting election or immunity or any bla thing.
You are spot on my brother but she has committed a sin for which she is answerable to Allah and the least she could do is that she should apologize to the muslims who have been hurt so badly !
rameez ahmed
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Yes surly it is in contradiction to basic teachings of Islam and as per our constitution no law could exist which is against those. Secondly pardoning of crimes is also prohibited, this right only exist with the affected person/ kins.
BUT Why we are making hue and cry now ? where were we since last 37 years? No one declared those un-Islamic even Islamic ideology council had been certifying that no law in constitution is against the teachings of Islam but now everyone is worried. Things should not move with personalities may it be prohibiting or allowing third tenure, graduation requirement for contesting election or immunity or any bla thing.
I agree with you that these should have been pointed out very early , at the time the constitution was framed and presented.. But at least now people are waking up ..
If you are saying so then you should also go against why the muslims of South Asia didn't started the struggle for separate Homeland before 1930.. they were only fighting for Independence from Britishers and not from Hindus.. In short they were sleeping in your terms of language you have spoken here, for the people who are commenting about the constituton..
My brother Allah has set time for everything. The idea of independence would have come even before 1930 only if Allah wished so.. But He didn't...
So I think You should support such steps being made today... Allah has made the Statement of Fouzia Wahab a mean through which we can understand the weaknesses of the Constitution which were not recognized in past few decades.
alibaz
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Pak123
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Brothers when Allah has already sent down his laws in the form of Quran and Hadith then who the hell are we to make up or own systems which suits us !
Simple logic is that when you create something, being a creator you give orders and he cant disobey or can't go against your laws, so same is the case with Allah, he is our creator and he wants us to follow him, then who the hell are we ? I think its shirk !
And one more thing, being a creator yourself, you will never want your creation to go against you but hey being a human we can go against Allah, what a double standard eh?
Simple logic is that when you create something, being a creator you give orders and he cant disobey or can't go against your laws, so same is the case with Allah, he is our creator and he wants us to follow him, then who the hell are we ? I think its shirk !
And one more thing, being a creator yourself, you will never want your creation to go against you but hey being a human we can go against Allah, what a double standard eh?
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^^^ SIr You really believe this ??
Last time I checked it was 21st century.
Why not send your parliament and judiciary to packing then??
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Pak123
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very well pointed out !
In urdu we say bas baahana chayye and things turn out be on the straight path !
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