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January 19, 2012

Immunity clauses need no interpretation


January 19, 2012

In the NRO case a five member learned bench of the Supreme Court in its interlocutory order of 10.01. 2012 formulated different options for purposes of implementation of the NRO judgment. Option 4 reads:
Option No.4
“Although in the present proceedings nobody has so far raised the issue pertaining to the protections contemplated by Article 248 of the Constitution yet if anybody likely to be affected by exercise of these options by this Court wishes to be heard on that question then an opportunity may be afforded to him in that respect before exercise of any of these options.”
This option directly and obliquely pertains to the office of the president, which is protected under Article 248 of the Constitution.
The question is does Article 248 of the Constitution which provides immunity to the president, calls for any interpretation from the apex court for bestowal of the immunity. My straight forward and respectful answer is in the negative. Because the words of Article 248 of the Constitution are patent and unambiguous allowing complete protection to the Head of the State from being answerable to any court or criminal proceedings. Needless to say that the contempt of court also comes within the ambit of criminal proceedings. A reference to Article 204(2) clarifies the position when it says that: “A court shall have power to punish any person “
It is a well established rule of interpretation of statutes that where the words are unambiguous these are to be construed and applied as they stand. This has been the accepted rule since hundreds of years [Edgwarebury Park (1963) 2 Q.B. 408].
It will become extremely onerous, inconvenient and impracticable for a Head of the State to go on seeking clearance about his immunity in numerous matters which may be filed against him and which of course will be contrary to the spirit of Article 248 of the Constitution.
Article 248(2) and (3) relate to personal immunity “ratione personae”. These

“248. Protection to President, Governor, Minister, etc.
(1) ....
(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) .....”
These clauses only relate to the president and the governor. These restrict the institution or continuation of criminal proceedings “whatsoever” against them and further forbid issuance of any process for their arrest or imprisonment while they hold these offices. The principle of the Head of State immunity was also enshrined in the 1962 Constitution. Its provisions are akin to Article 361 of the Indian Constitution.
Whereas we can locate case law relating to functional immunity (Article 248(1), this is not so in case of Article 248(2) and (3) of the Constitution. In the judgment of the Supreme Court in the case of Iftikhar Muhammad Chaudhry Vs. President [CP No. 21/2007] the discussion focused on Article 248(1). The cases of Sadiq Hussain Qureshi and Zahoor Elahi did not pertain to the office of the president and were confined to the functional immunity of the governor and the prime minister. The Indian cases viz. K. A. Mathialagan Vs. The Governor [AIR 1973 Madras 198] and Gnanamani Vs. Governor of Andhra [AIR 1954 Andhra 9] also relate to functional immunity of the governors.
I may add that the principle of absolute immunity to the Head of the State emerged from International Law and not the Municipal Law. It originally developed from the idea of State sovereign immunity, as the State and its ruler were taken as one and the same thing.
In the case of Robert Mugabe, reported at (2004) 53 ICLQ 789 and in the case of Fidel Castro the UK and Spanish courts declared the law by stating that as both of them were serving as Heads of State they cannot be prosecuted.
In the famous Qaddafi case before the French Cour de Cassation, the French Supreme Court held that International Customary law prohibits exercise of criminal jurisdiction over Heads of State in office.
The International Court of Justice (ICJ) in the case of Congo v Belgium, while dealing with the case concerning the arrest of warrant of a foreign minister (Yerodia) and while comparing his functions to that of a Head of State in his capacity as a representative of the State declared immunity from criminal process for him and thus laid the principle of immunity from criminal process for sitting Heads of State or high-ranking ministers.
The argument in favour of absolute immunity for Heads of States is routed in traditional notion of diplomatic relations between States and this is illustrated in the logic implied by the ICJ in the Congo decision. State actors fear that derogation from norm of immunity for Heads of State will lead to an atmosphere of disarray in domestic fields and diplomacy.
Our system of administration of justice is adversarial therefore it is exceptional and unusual to call upon a party to appear and get clearance as was observed with reference to Article 248 of the Constitution.
Reference to Article 62 and 63 of the Constitution viz-a-viz the office of the president are to be read along with Article 47 of the Constitution. The latter is a special provision pertaining to the removal or impeachment of the president and which being a special provision overwhelms any other provision in this connection [Generalia specialibus non derogant]. Let me emphasize that the president can only be removed under Article 47.
The author has been an International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court, a visiting Professor and Co-Chairman of Unesco Appeal (Judicial) Board - Paris, France.
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