In the following excerpt taken from his most recent op-ed in The News (3 April 2010), Babar Sattar examines some legal implications of Article 248 of Pakistan’s constitution, and advises judges in the Supreme Court to not to cross the red line, i.e. to refrain from violating their constitutional limitations.

Still stuck in the NRO

….The PPP’s blundering approach to the NRO ruling must not influence the apex court’s understanding and interpretation of presidential immunity.

The meaning and import of Article 248 of the Constitution must not be clubbed with implementation of the NRO judgment. This is where the Supreme Court must apply restraint. The concept of rule of law is fundamentally procedural in nature and doesn’t have an unvarying substantive core. It requires that all citizens living in a state be subjected to even-handed application of its laws. But the judiciary cannot employ such a general principle of fairness and equity to undermine or rewrite explicit provisions of the Constitution that allow exceptions to due process.

Article 248 is one such provision that offers at least two types of exceptions to ordinary due process. One is the limited protection embedded in Article 248(1) afforded to certain holders of public office against judicial scrutiny and affixation of personal liability for official acts. And the other is the unqualified protection afforded to the person of the president and a governor against institution or continuation of criminal proceedings during their term in office under Articles 248(2) and (3) of the Constitution. It must therefore be understood that judicial interpretation of Article 248(1) is not relevant to the scope and extent of protection afforded under Article 248(2) and (3), which is more pertinent to Mr Zardari’s case.

Article 248(1) bars the courts from calling into question the official acts of the president, the prime minister and ministers etc. Our apex court has restrictively interpreted this prohibition by holding that if an act is undertaken in bad faith or without jurisdiction, it is not an official act at all and thus devoid of the protection promised under Article 248(1). And this was the position reiterated in Justice Ramday’s ruling in Chief Justice of Pakistan vs President of Pakistan (CP No. 21 of 2007) rejecting the objection of General Musharraf’s counsel that the Supreme Court is barred from adjudicating the issue of the chief justice’s dismissal under Article 248(1) of the Constitution.

Articles 248(2) and (3) on the other hand unequivocally prohibit initiation or continuation of any criminal proceedings against the president during his term in office. The language barring continuation of pending proceedings makes it obvious that the intent here is not just to protect acts of the president while in office, but also his personal acts from before. Further, given that these provisions prohibit the state and its authorities from instituting or continuing proceedings rather than affording the president with a defence in case criminal proceedings are brought against him, the legal argument being made by some analysts that the president needs to proactively claim immunity seems misplaced.

It is only fair that Asif Zardari should be required to face the law like all other citizens of Pakistan. But so long as he is president this is not what our Constitution prescribes. The viewpoint that the Constitution should not afford blanket protection to the president against criminal proceedings is also weighty. But then again, under our scheme of separation of powers, it is for parliament and not the courts to write the wishes of the people into the Constitution. The constitutional reform committee has just finalized its recommendations to introduce substantive amendments to the Constitution. And yet no political party has even proposed that the scope of presidential immunity be revisited.

The Constitution is an unfolding narrative. Like the rest of us, our judges also have a right to disagree with the wisdom of its provisions in their personal capacity. But if they allow such personal preferences to inform judicial interpretation of the Constitution, they would certainly be crossing a red line.

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