Our Zardari problem

By Babar Sattar

The writer is a lawyer based in Islamabad

To say that many Pakistanis do not find the personality, character and actions of Asif Zardari endearing is as politely as one can put it. Zardari and the PPP government have been grievously hurt due to a string of political and policy disasters: the failed attempt to obstruct restitution of independent-minded judges; offering unequivocal support to the controversial and unpopular Kerry-Lugar Bill (KLB); and making a no-holds-barred attempt to promulgate the reprehensible National Reconciliation Ordinance (NRO) as a permanent law. Proponents of the 'minus-Zardari formula' have been extremely vocal since the ISPR release that chastised the PPP government for its fervent endorsement of the KLB. The recent NRO debacle has added fuel to fire with the MQM and other political groups seeking their pound of flesh and making muffled suggestions that Zardari should step down.

Our Zardari problem has legal, constitutional and political dimensions that overlap. The legal issues are two-fold: the fate of benefits already derived by beneficiaries of the NRO and its consequences for Zardari and the scope and extent of the immunity conferred on the president under the constitution. The first issue is already subject to judicial determination in the suits pending before the apex court that challenged the legality of the NRO back in 2007. The outcome of these suits together with clarifications proffered by the court regarding the relevant part of its detailed judgment in the PCO Judges Case (that gave ordinances promulgated by Musharraf an additional lease on life till November 31, 2009) will determine whether or not the benefits garnered under the NRO will stay.

If the court holds that the NRO is ultra vires of the constitution, or clarifies that it has held in the PCO Judges Case that no benefits could be derived under the ordinances after their original four-month expiry period (February 2008) despite the extension granted to them by the Supreme Court (SC), the benefits derived by Zardari will be swept away. Whether or not such outcome will affect Zardari's position as president will partly depend on whether he could have qualified as a candidate for the office of the president under Article 41 of the constitution, read together with Articles 62 and 63, even in the absence of the NRO.

If Zardari qualified as a candidate for the office due to legal benefits derived under the NRO, the courts will need to determine (i) whether the resumption of such ineligibility after the demise of the NRO disqualifies Zardari from continuing to serve as president, or (ii) if Article 41(6) somehow cures inherent disabilities of a successful candidate upon completion of the election process as it states that "the validity of the election of the president shall not be called in question by or before any court or other authority." If, on the contrary, Zardari had no convictions that disqualified him as a candidate under Articles 62 and 63 and was eligible to participate in the presidential election independent of the NRO, we will only need to consider the extent of immunity afforded to the president under Article 248.

Article 248(2) of the constitution states that "no criminal proceedings whatsoever, shall be instituted or continued against the president or governor in any court during term of office", and sub-article (3) further states that, "no process for the arrest and imprisonment of the president or a governor shall issue from any court during his term in office." The language of these provisions is significantly different from that of Article 248(1) that grants limited protection to the prime minister, chief ministers and federal ministers, "for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions."

The clear intent of Article 248 appears to be that (i) criminal proceedings can neither be instituted nor continued against an individual once he is elected president, and (ii) a judicial order for the arrest or imprisonment of an incumbent president cannot be issued or enforced. This read together with Article 48 suggests that the president can only be removed through the impeachment process by two-thirds majority of parliament on grounds of physical or mental incapacity, breach of the constitution or gross misconduct. The obvious question then is what happens if the president engages in patently criminal acts when in office and murders someone, for example? Is he simply above the law?

The answer seems to be a yes and a no. The constitution does protect the person of the president from the normal process of law. Holding the president accountable for a criminal act is thus a two-tier process. At the first stage, the parliament functions as an investigation tribunal against the president, who, if found guilty or incapable during impeachment proceedings, can be removed from office and thereby denuded of his special protection against the ordinary process of law. This would allow for initiation of the second stage where the ordinary process of law would take its course.

The framers of the constitution probably extended such protection to the president as part of the constitutional scheme of separation of powers. But there is no reason in principle why the personal and non-official acts of our head of state should be afforded such extraordinary protection, especially when other public officials including the head of the executive or custodians of the parliament are not endowed with such immunity. But here is something that can labelled a constitutional problem for which the courts have no solution. Under the doctrine of limited powers enunciated by the SC in the PCO Judges Case most recently, as an institution exercising only such powers as delegated by the constitution, the court can only interpret the constitution and not amend it.

We must resist the temptation of seeking a creative interpretation of the constitution from the apex court merely because it could produce desirable political consequences by hastening Zardari's ouster. If Zardari is to be removed from office on the basis of accusations of graft that amount to gross misconduct, it must be done in accordance with the letter and spirit of the constitution. Vying for Zardari's removal through a purposeful interpretation of Article 248 will not only pollute our constitutional jurisprudence but will also drag the SC's independence and integrity. If enough people believe that the personal acts of the president should be subject to the regular process of law like another citizen, let us campaign to alter Article 248 through a constitutional amendment.

Seeking Zardari's ouster through judicial activism or military adventurism, or contriving other extra-constitutional initiatives to implement the 'minus-one formula' will be no panacea to our multi-faceted problem. The need of the hour for PPP is to (i) rely on PML-N for political stability, (ii) undertake constitutional reform that makes the executive more accountable to parliament and strengthens provincial autonomy, (iii) bring within the state's decision-making hierarchy credible PPP leaders, such leaders Aitzaz Ahsan, Raza Rabbani and Sherry Rehman, exclude the likes of Rehman Malik and Salman Taseer, and cultivate the sense that PPP is not just tinkering with the façade but changing the structure and complexion of governance, and (iv) initiate a non-partisan accountability drive to check growing corruption and cronyism.

There is no reason for Nawaz Sharif to seek Zardari's removal at the expense of strengthening the army and further aggravating the civil-military imbalance that will be the bane of any future PML-N government. An enfeebled president also suits the army for now as it enables khakis to exercise power without authority and continue to pull strings from behind the curtain. But growing unpopularity is like an autoimmune disease that could bring Zardari and the PPP down. If Zardari can facilitate the process of reform with a sense of urgency and reconcile with limited constitutional authority and relative anonymity, he could end up saving himself and strengthening his party. But there is no room to falter anymore and time is of the essence.