Presidential immunity vs selective accountability

Appeared as my weekly column BAAGHI in Daily Times on Monday January 23, 2012

The President, the Prime Minister, the Chief Justice of Pakistan and Chief of the Army Staff - Photo by AFP/AP

Umpteen talk shows on 24/7 ‘breaking news’ media in Pakistan tell us almost daily how bad is democracy, how this democracy is worse than the dictatorships we have had, etc. TV presenters and reporters show little care for facts-based evidence to substantiate their claims. The act not only goes largely unchecked but brings more ‘ratings’ as a bonus. Who would like facts to come in the way of a good story?

The recently blown up issue of the president’s immunity clearly granted by the constitution is being debated in a furious media. Last week, Prime Minister Gilani was called to the Supreme Court by a bench hearing the National Reconciliation Ordinance (NRO) case, to explain his inability to send a letter to the Swiss courts for opening the cases against President Zardari, failing which he might be charged with contempt of court. Prime Minister Gilani went and informed the court about the existence of Article 248 in the constitution under which the president has immunity from being tried for criminal cases.

The argument of passionate ‘constitutionalist’ journalists and newfound ‘analysts’ against presidential immunity is whether it is against the spirit of Article 25 of the constitution, which guarantees equality of all citizens before the law. It is quite pleasant to see them quoting Article 25, because the same Article is almost always negated when it comes to the Ahmedis and actually all religious minority communities. If “equality of all citizens”, as per Article 25, is being invoked against the immunity from judicial action, it must also be invoked for the rights of the Ahmedis, Hindus, Christians and Jews (yes, there is a small community of Pakistani Jews still left) to practice their faith and participate in national decision making and governance. It is then an equal right of every citizen of Pakistan, irrespective of caste, religion and gender, to become the prime minister or the president of Pakistan.

There is another argument by a smug and self-righteous ‘editor investigation’ of a big media house, who regularly contributed stories of corruption about the chief justice in February 2007 but later got pangs of conscience and became an obsessive part of the ‘lawyers’ movement’ for the restoration of the deposed judiciary. The pious journalist is seen on almost all the main TV channels where he is religiously being invited as an ‘expert’ (of something hitherto unknown), advocating that the constitutional immunity to the president is against the spirit of justice as well as the constitution itself. This flabbergasting discovery of the virtuous journalist seems slightly economising on honesty, truth and common sense.

The immunity the constitution grants to the president is an internationally accepted norm. What is not known to the world is our practice of granting permanent immunity to the military and judiciary. In 2005, newspapers told us about a big scam of the Defence Housing Authority (DHA) in which DHA lands were being sold to multiple buyers, looting many hundreds of billion of rupees from the people. The head of the DHA, a serving army officer, was transferred (no, he was not sacked if you are wondering) while a few estate agencies were ‘sealed’, only to be reopened a few months later. No one dares to report on what happened afterwards. And this is just one case.

According to a report by Mr Rauf Klasra in 2006, many top military officers had their loans written off. This fortunate lot included five lieutenant-generals, two major-generals and a battalion of other senior uniformed beneficiaries, with some army managed institutions to boot. According to the official list of loan write-off beneficiaries tabled in the National Assembly, those who benefitted from written off loans to the tune of millions of rupees were Lieutenant-General (retd) Ali Kuli Khan and his father Lieutenant-General (retd) Habibullah Khan, Lieutenant-General (retd) K M Azhar, Lieutenant-General (retd) SA Burkey, Lieutenant-General (retd) Safdar Butt, Air Marshal (retd) A Rahim Khan, Air Marshal (retd) Viqar Azeem, Major-General Zahid Ali Akbar, Brig M M Mahmood, Begum Omar Mahmood, Saeed Ahmed, Gohar Ayub Khan, Raza Kuli Khan (brother of General Ali Kuli Khan), Major-General (retd) M Mumtaz, Lieutenant-Colonel (retd) Shaukat, Major (retd) Tajuddin, Major-General (retd) Ghaziuddin, Major-General (retd) G Umar, Lieutenant-General (retd) Safdar Butt, Major-General (retd) Abdullah Malik, Colonel (retd) M Zafar Khan, Mohammad Afzal Khan, and the list goes on.

Similar concessions go to the judiciary also. There have been hundreds of cases of corruption, misappropriation of funds, misuse of powers, misconduct, etc, against the judges from the superior, higher and lower judiciary, well reported in the media pre-2007. The judiciary, according to the surveys conducted by Transparency International in the last many years, has been in the top five most corrupt institutions in Pakistan. No head rolled. Accountability is even difficult when most prominent and senior judges are accused of misusing their authority in getting lucrative jobs for their sons, completely making a mockery of merit and the principles of justice. Since some are more equal before the law, the constitution (and Article 25) may not apply evenly despite winning a ‘free judiciary’, a democratically elected parliament and an army that ‘respects and protects the democratic system’.

When it comes to independence and accountability, some of our powerful institutions always opt for the former for themselves and the latter for the politicians — only politicians. The glorious National Accountability Bureau (NAB) has its exclusive domain that does not include the military and the judiciary. Similar is the case with the splendid Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance that excludes both these institutions. Even the Accountability Bill that is under discussion in the National Assembly does not net the armed forces. In the present milieu created by the media, any bid by parliament to include the judiciary or even the armed forces is going to be painted as creating deliberate friction among the institutions by the government. Sadly, the ‘senior analysts’ do not seem to understand the difference between the government and parliament.

Since the much-hyped independence of the judiciary is a sensitive matter, as is the morale of the armed forces (that could be hurt easily, even by an unsigned piece of paper — at least this is what we are told by the ISPR), we are constantly under pressure to let go of the authority of the law and of the constitution when it comes to these holy cows. What we are missing in this rut of ‘freedom of judiciary’ and the ‘morale of soldiers’ is accountability. For a parliament that has passed around a hundred bills in the last four years, only second to the parliamentary tenure of 1973-77 in legislative performance, and which has passed two constitutional amendments of highly political nature, it is a big challenge to come up with necessary and tight legislation to bring these two holy cows into the accountability net instead of letting them always malign and suppress elected legislatures with the teeth of discretionary accountability. If you let other people do it for you, they will do it to you!

For the holy cows, one could say, if you cannot stand the heat, better get out of the kitchen.

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