Experts say no immunity to president
Sunday, January 31, 2010
By Usman Manzoor
ISLAMABAD: Opinion of the constitutional experts on constitutional immunity to the president after the detailed judgment on 2007 reference against the chief justice though remains divided, an argument backed by past references of judicial judgments by one of these experts authenticates the view that no such exemption is enjoyed by the office of the president anymore.
Senior legal expert Dr Barrister Farogh Naseem has an appealing interpretation of the constitutional immunity to the president, saying Article 248 of the Constitution is an ouster clause and the superior courts, on dozens of occasions, have ruled that the court can look into the matters being covered by the ouster clauses.
He defines ouster clauses as those clauses which exclude certain actions and decisions from judicial review in the interests of the smooth administration of justice.
Farogh said that while interpreting the constitution regarding the ouster clauses, the courts have always taken cognisance of the matters that came before them instead of leaving them for the ouster clauses.
“Whenever the cases regarding ouster clauses have come before the courts the only things which were checked by the courts were mala fide intention, illegal or unconstitutional act, subversion, against the natural justice and contrary to statutes,” said Farogh Naseem quoting examples. “In Asma Gillani case 1972, Zia-ur-Rehman’s case 1973, Saeed Ahmad’s case 1974, Zahoor Elahi’s case 1975, Benazir Bhutto case 1988, Ghulam Mustafa Khar case 1989, Abbasia Cooperatives 1997 and CJ Reference case 2007, the courts have taken cognisance of matters being covered by the ouster clauses.”
He mentioned that in Amanullah’s case of 1990 the immunity for the president came under discussion but that case was of civil nature.
Farogh said that an article of the constitution is interpreted on the whole and if ever Article 248 came before any court, the president’s immunity to criminal cases would also be questioned and the court can hear criminal proceedings against Zardari as article 248 is an ouster clause. He said that NAB Ordinance’s clauses mention that no bail could be awarded to the accused while the high courts and the Supreme Court do not adhere to what NAB ordinance says because not granting bail to an accused is an ouster clause.
