The immunity mystery

Whether President Zardari has immunity/exemption from all civil and criminal proceedings in courts within and outside Pakistan is a central political and constitutional question at the heart of the present conflict between the PPP political elite and the superior judiciary.

In the continuing public debate about presidential immunity, there are two schools of thought.

The ‘political school’ argues that it is an undeniable fact that under Article 248 of the constitution and international law the president has immunity both in national and foreign courts. The ‘legalist school’ contends that the extent of presidential immunity is limited and there is no obstacle to the prime minister writing the letter to the Swiss authorities to revive the cases/claims.

However, as explained here, the confusion over presidential immunity is primarily not the result of ‘wrong’ interpretations but because the interpretation of presidential immunity is yet to be ‘interpretationally constructed’. In short, nobody at present knows what presidential immunity conclusively means — the concept exists but its meaning is yet to be fully born.

A cursory look at Article 248 points to this interpretational minefield. It comprises four separate clauses. Clause (1) of Article 248 confers immunity/exemption to the president from Pakistani courts only in relation to his official acts performed in good faith.

Clause (4) of Article 248 actually allows civil proceedings to be initiated against the president for past and present personal actions subject to giving him 60 days’ advance notice.

But what about clauses (2) and (3) of Article 248? Under these clauses, no criminal proceedings, whatsoever, can be instituted or continued, or process for arrest or imprisonment can be issued, against the president in any court during his term of office.

Yes, no pending criminal case against Mr Zardari, instituted prior to his becoming president, can be continued during his presidential term nor can any new criminal case be instituted against him during this time.

Still, this presidential immunity seems limited. Most importantly, this presidential immunity is limited to Pakistani courts because the Pakistani legislature cannot provide for presidential immunity in foreign courts. The power of any national legislature is limited to the courts of its country.

Even otherwise, if the Pakistani legislature were foolish enough to legislate for the Swiss courts, why would a foreign state and its courts regard the provisions of the constitution of Pakistan as binding on them?

But what about international law e.g. Convention on the Privileges & Immunities of the United Nations and the Vienna Convention on Diplomatic Relations etc.?

The question here is not whether the president has immunity under international law but which institution in which country will decide this issue. Again, surely, the Pakistani government, or even the Pakistani Supreme Court (SC), cannot decide whether the Swiss authorities or courts should grant immunity to President Zardari.

Why would the Swiss authorities or courts consider the opinion of the Pakistani government or the judgment of the SC as binding on them? As judgments of the US courts in the Mugabe (President Mugabe of Zimbawe) and Zemin (then president Zemin of China) cases show, it is the foreign courts themselves which decide the issue of immunity of heads of state.

But unlike the political and legalist schools, I don’t believe that there is any obvious meaning of presidential immunity, which is merely to be discovered by the Pakistani Supreme Court.

Knowledge is power because judicial power, by giving constitutional meanings, creates systems of politico-constitutional knowledge, which in turn structures political power. Therefore, the SC’s monopoly over the power to interpret the constitution empowers it to create the meaning of presidential immunity under Article 248 and under international law.

The issue isn’t whether or not the SC’s interpretation of presidential immunity is correct but that it has the monopoly to interpret conclusively, rightly or wrongly, what presidential immunity means. Even when it is wrong in its interpretation, it is the SC itself which decides on its misinterpretation.

What will be the parameters which structure, or guide, the SC’s interpretation of presidential immunity?

Firstly, the language of Article 248 and international law and various court judgments interpreting these legal norms.

Secondly, as lawyer Muneer A. Malik rightly points out “judges realise their real strength comes from moral authority with the people”. So, the SC will take into account the public perception about President Zardari and presidential immunity in its interpretation.

Thirdly, the issue of eradicating corruption is a strategic tool of judicial governance utilised by the SC, which is being used to reform the Pakistani state through the judicial process. The fact that presidential immunity is being used as a shield to protect allegedly corrupt acts by President Zardari will effect the SC’s interpretation.

Fourthly, whether President Zardari is given full or limited presidential immunity will also depend on the political fight-back.
For example, when the prime minister says that he will implement the constitution, and not the SC judgment, what he is really doing is questioning the monopoly of the SC over constitutional interpretation. Therefore, the balance of power between the political and judicial elite will play a critical role.

But this constitutional conflict is not simply about presidential immunity; it is about how Pakistan is to be governed, whether by laws and rules or political consent and compromise. Only political and constitutional battles can resolve these issues as no readymade or instant solutions are provided in the document called the constitution.

Sunshine and rain on Talat Hussain

English drizzle welcomed Pakistani journalist, Talat Hussain, to Cambridge this weekend. Hosted by the University’s Pakistan Society, Hussain had come to provide some insight into the media in his country. He was candid and refreshingly self-critical and he gave permission for me to write about the encounter.

Hussain began, rather defensively setting out how media had brought about positive change and how he felt that it genuinely provided a voice to the impoverished, poor, and marginalised – offering them a ray of hope. “Without the media would you ever hear the voice of the Baloch?” he said. He was perhaps right to be defensive – when I shared news on my Twitter and Facebook pages that I would meet Hussain, people urged me to pin him down on why the media couldn’t do more to support Pakistani development, and why the Pakistani media weren’t more vociferous in challenging and exposing the corrupt elite and politicians. As if Hussain needed more evidence of the cynicism some audiences might feel towards the Pakistani media, someone in the crowd pressured him to explain the special handshake between the Pakistani judiciary and the media. His response was to defend the judiciary, but wry smiles spoke a thousand words.

I shared with Hussain one challenge I felt as a writer – motivated by a desire to see Pakistan in a more balanced positive light, I am often accused of being saccharin sweet on the nation and ignoring the ills of Pakistan. My response is that I have a very straightforward mission to shine a spotlight on the better things – to combat the sea of negative reporting on the country. Hussain acknowledged that the negativity of the media had damaged the nation’s self-esteem, and even went as far as to say it had helped to plunge Pakistan in form of “collective grief”. Referencing Arundhati Roy, and her theories of “crisis journalism”, he said the media would find it difficult to turn back. He also attempted to explain how Pakistan had a different view of “balance”, with a slight distaste for a grammar of the media that had been “inherited from the west”.

What struck me was the inherent problem in attempting to get a broadcast journalist to offer a reasonable, balanced view. They will naturally seek the difficulty or flash points in any situation. The tendency is to sensationalise – and despite claiming to be driven and regulated by the demands of the consumer, responsibility should be taken to ensure that creative ways to present less negative stories are explored.

I was disappointed – but not surprised given his flotilla experience – that Hussain made generalisations about Israelis. “Israelis are…” is as offensive to me as “Pakistanis are…” – and although I haven’t lived in Israel for many years, I feel safe in my own assumption that not all Israelis hate all Arabs. It was a view that undermined Hussain’s promotion of the Pakistani view on balance.

His flotilla experience has clearly impacted Hussain – and he offered many words of wisdom on the Arab Spring. He was right to indicate that it was too soon to tell what change, if any, had been made. And he raised an interesting point that Pakistan had already had its own Arab Spring – two in fact – when they ousted military dictators in the 1960s and in 1988 when Zia-ul-Huq was killed in an air crash. Hussein pointed out that these revolutions were bloodless. My tendency (and mission) is to get excited by such a positive take, but thinking about it, in Pakistan’s short history it has seen more than its fair share of military dictators, in periods which I am sure some Pakistanis would agree were far from bloodless. Furthermore, the words “brink” and “military coup” have been used more than once in recent times not just by the media, but by Wikileaks, and the US State Department. The “we are better than them because…” argument never really works for me – and it’s one Pakistan needs to get out of the habit of.

When Hussain pointed out that Pakistan’s very beginning was forged by ordinary barristers and lawyers – not bloodthirsty revolutionaries – I thought of that “handshake” and wondered why Hussain was not acknowledging the tragic messy birth of a nation through the blood soaked soil of partition.

You see, I’m not all saccharin sweet on Pakistan. It’s not about being unrealistically, or unfeasibly positive – it’s about presenting a dramatic viewpoint that is uplifting and inspiring.

Hussain echoed my own thoughts on Pakistan being an over-diagnosed nation. He likened it to going to see a doctor, who repeatedly told you that your system was failing, but never doing anything to help. However, Hussain himself failed to offer any solutions – and given his job as one of the analysts – he is unlikely to. He did suggest that “new media” would help shape the new Pakistan, as opposed to misunderstood “mainstream media”. He suggested that the mass media had much less influence than people thought, using as evidence his experience of media use in Sindh and the Southern Punjab – and there is more than empirical evidence to back this up. Hussain cited the rise in access to mobile phones and the increased use of blogs, social networks like Facebook (now available in Urdu) and Twitter. Hussain’s own activity on Twitter (or lack of it) indicates that he is new to this means of engagement. Engagement it is – a very different media from “broadcasting” – and we should welcome him to it. The fact that traditional media pundits might struggle in this forum was demonstrated by Hussain’s apparent confusion as to how I knew what my readers thought.

Perhaps the most touching and most profound thing Hussain said, was his account of a disaster in Islamabad. Turning up to produce a TV report on a collapsed tower, he explained how he was confronted by trapped women and children and contorted bodies. Hussain’s tone changed and his gaze steadied in front of him, “words cannot describe the tradegy that my eye saw in one glance”.

Desperately frustrated by his inability to help, he handed the camera to his driver and began attempting to drag people out of the rubble. As he told the story, he lowered his gaze and murmured, “it didn’t do much good”. Flood victims, he said, were often angry that TV crews were first on the scene, when what they wanted was help: food; medical help. As a result of these experiences, Talat Hussain, the journalist, has set up a charity. He was humble about it.

So although he may have painted his own industry in grim colours – referencing the new Pakistani “mini Rupert Murdochs” who control mass media in the country, and his own “wannabe” journalist peers who like the sound of their own voice – it was the story of his compassion and efforts to pull fellow countrymen from the rubble which spoke loudest on that rainy afternoon in Cambridge.

When Hussain describes his feelings for Pakistan as schizophrenic – 50 per cent elated and hopeful and 50 per cent doom-ridden – I would ask that at least the media reflect this. Don’t simply cover the story of the collapsed tower, and the deaths and the destruction; cover too, the story of peoples’ attempts to rescue and make good. It is actually more engaging – and more likely to inspire and bring about change.

I look forward to welcoming Talat Hussain again in Cambridge – maybe one day when the sun is shining.

Naveed Qamar for developing renewable energy resources

ISLAMABAD: Federal Minister for Water and Power, Syed Naveed Qamar has said that the government is making all out efforts to generate cheaper electricity by developing indigenous energy resources, especially renewable in the country.

He said this while presiding over 23rd Alternative Energy Development Board (AEDB) meeting held here on Monday, said a press release.

He said that renewable energy would not only help shorten the demand and supply gap but also help in having a sustainable energy resource base in the country.

He said that the federal government would continue to help provinces in development of renewable energy resources related to their areas.

The minister directed AEDB to take up the resource assessment surveys in light of the prime minister’s recent directives all over Pakistan, especially in the far flung areas of the country, where off-grid energy supply system could be established.

This would provide immediate help meet the energy needs of the rural population while also saving expenditure incurred on transmission lines, he added.

The Board approved a project for wind energy assessment in Balochistan.

The Minister said the fast track wind power projects in Sindh would be fully facilitated for their timely completion.

He expressed satisfaction on the allotment of land to some wind power projects and said that the Sindh government would facilitate other fast track wind power projects to get the land at the earliest.

He said that due to new policy investors are lining up, and has requested for allotment of land for wind power projects.

The minister directed AEDB to prepare plans for electrification in the off gird areas through solar and biomass and present the plans in the next board meeting.

The board accepted a suggestion of the Punjab government to develop a national plan for inducting solar energy in the country and the board entrusted AEDB to formulate the plan and submit in the next meeting.

The board also approved implementation documents relating to wind power projects being established in Sharo Keti Bandar wind Corridor, Thatta, Sindh.

Political cell of ISI still active, says Mukhtar

ISLAMABAD: Defence Minister Ahmed Mukhtar on Monday has revealed that the political wing of Inter-Services Intelligence (ISI) is still operative, however, its purpose was not formation or braking up of the parties but to inform ‘top leadership’ about political activities in the country, DawnNews reported.

Speaking exclusively to DawnNews, the defence minister said there has always been a political wing in the Directorate of ISI and Prime Minister Gilani and President Zardari will be informed about the agency’s policies and requirements by newly-appointed ISI Director General Zahirul Islam.

The minister said that he was optimistic about working relations between the new ISI chief and the political government. Supremacy of the civilian institutions of the country over military institutions will be practically applied, he added.

The defence minister also revealed that generous amount of money was distributed among candidates of the Islami Jamhoori Ittehad (IJI) in 1990’s general elections.

“Rs 10 million for the candidates of National Assembly and Rs 5 million for provincial assemblies were given on the directives of then president Ghulam Ishaq Khan during the elections,” he added.

Commenting on Pakistan Tehrik-i-Insaf (PTI), he said Shah Mehmood Qureshi has been sidelined by the chief Imran Khan by appointing Javed Hashmi as president of the party.

"All the new people who have joined the PTI have accepted the party's ideology. PTI respects all its members equally and no one is vilified or insulted,” said PTI Vice President Dr Shireen Mazari. –Photo by Online

ISLAMABAD: Pakistan Tehreek-e-Insaf (PTI) Vice President Dr Shireen Mazari on Monday admitted that differences were emerging between top leaders of the party and said that there was a “debate and dissension” within Party meetings through which a consensus would be evolved.

“Given the highly democratic nature of the PTI, there was a debate and dissension within party meetings through which a consensus would be evolved.

“All the new people who have joined the PTI have accepted the party’s ideology. PTI respects all its members equally and no one is vilified or insulted,” said Mazari while addressing a press conference here at PTI central secretariat flanked by Azhar Tariq, Secretary Finance of the PTI.

Responding to a question about saying a big no to joining the PTI by PML-Q leaders Marvi Memon and Amir Muqam, Shireen Mazari made it clear that both politicians had been rejected by the party itself.

Asked if her claim was correct, as to why Imran Khan had signed an appointment letter for Marvi Memon as the party’s secretary information, Mazari admitted that Mr Khan had indeed signed the letter of Marvi Memon’s appointment but claimed that the Party did not ratify the Chairman’s decision.

“We have a strong democratic tradition in the party and the Chairman respected the party’s decision, this is how democracy works,” she asserted.

Se also contradicted the notion of a downslide wave in her party’s popularity amongst masses and claimed that the PTI Tsunami was deliberately being controlled so as to allow the Party to absorb large groups of people who wanted to join.

She claimed that PTI’s Tsunami was heading towards southern Punjab and that many heavyweights would join in the next few days.

Will not write letter to Swiss authorities, PM tells SC

ISLAMABAD: Prime Minister Syed Yousuf Raza Gilani on Monday submitted his reply to the Supreme Court in the contempt of court case, DawnNews reported.

In the reply, the prime minister formally informed the SC that he would not write the letter to the Swiss authorities to reopen graft cases against President Asif Ali Zardari.

The prime minister’s lawyer Chaudhry Aitzaz Ahsen’s associate Barrister Gauhar submitted the reply, consisting of 24 pages, to the apex court.

The PM claimed in his reply that he completely trusts the SC, but expressed reservations on the bench.

Gilani stated that he was wrongly convicted by courts for eight and ten years earlier too, but that he was as innocent then as he is today.

The prime minister claims that his decision to not write to the Swiss authorities was in good faith, and that the constitution does not allow him to write the letter. The reply further argues that presenting the president before a foreign would be in violation of the Constitution.

Earlier today, Aitzaz had said that it was not necessary that court’s verdict against Gilani would result in the premier’s disqualification.

Aitzaz said that Supreme Court should not take any decision on March 21 without hearing him.

Moreover, he also said that a sentence of less than two years could not disqualify the prime minister. Aitzaz added that following the constitution of Pakistan does not indicate that they are at odds with the judiciary.

He said that certain elements were trying to create a rift between the government and judiciary however they would not be allowed to succeed.

New Details Emerge of a New Details Emerge of a Chinese Leader’s Removal

BEIJING — Communist Party leaders sacked Bo Xilai, the powerful party chief of metropolitan Chongqing, after being told that he had schemed to remove his police chief and impede a corruption investigation involving his family, according to a preliminary report on Mr. Bo’s actions circulated among government officials.
A leaked version of the report provides the first detailed look at events that have unleashed a political earthquake in China’s leadership ranks as officials prepare for a transfer of power to a new generation of party leaders.       
And it states for the first time that the Chongqing police chief who triggered that earthquake — Mr. Bo’s trusted aide, Wang Lijun — had sought political asylum when he fled to at a United States consulate to escape Mr. Bo’s wrath.

The Communist Party Central Committee circulated the findings on Friday, one day after the announcement of Mr. Bo’s dismissal, and a transcript quickly was leaked online. Its contents were confirmed by a researcher at a ministry-level government institute and by a Chongqing official briefed by colleagues who were present when the report was read at a government meeting.

Combined with other actions in recent days, the government’s decision to begin making its case against Mr. Bo suggests a campaign to discredit him. Mr. Bo, a broadly popular but highly controversial politician whose father was one of China’s revolutionary-era leaders, was openly seeking a spot in China’s top leadership when power changes hands late this year.

It also raises the prospect that Mr. Bo could face criminal charges, a rarity for an official of his rank. The party secretaries of Beijing and Shanghai, province-level cities like Chongqing, were dismissed in 1995 and 2006 and later were imprisoned for corruption. Like Mr. Bo, both were also members of the Politburo, the 25-member body that oversees Communist Party affairs.

Both of those firings, like Mr. Bo’s, were principally viewed as the fallout from power struggles within the leadership. But a number of political analysts say they regard Mr. Bo’s dismissal as potentially more serious because it involves more than a struggle for control.

“It’s not about political lines,” said Zheng Yongnian, who directs the East Asia Institute at the National University of Singapore. “It’s about whether to reform or not reform.”

The decision itself to oust Mr. Bo in the midst of a once-in-a-decade change of rulers underscores the gravity with which China’s leaders view both his political influence and the controversy surrounding him.

After decades in which leaders were handpicked by predecessors, this year’s leadership change is the first in China’s Communist history that is following rules — albeit rules known mostly only by China’s leaders. Ensuring a stable transition has become a party obsession.

“If he is dislodged and this purge sticks, then the transition can move forward smoothly,” Andrew J. Nathan, an expert on China’s elite leaders at Columbia University, said of Mr. Bo. Yet “they have paid a huge price by firing him.”

“They have had to do exactly the thing that they hate him for doing,” he added, “which is to shred the facade of party unity. And they would have preferred not to.”

Mr. Bo, 62, has built a national reputation on his charisma — a sharp contrast to the rest of China’s interchangeably bland leadership — and on his stewardship of Chongqing, where he marshaled the government to purge officials and private entrepreneurs accused of organized crime, redistribute wealth and launch a massive drive to urbanize and house rural migrants.

His statist policies and promotion of a retro-Maoist culture in which citizens sang patriotic songs and dressed in red made him a darling of China’s political left and a serious contender for a seat on the Politburo’s Standing Committee, whose nine members enjoy uncontested authority over government policy.

But that same personality and political bent were said to nettle President Hu Jintao and Premier Wen Jiabao, who appeared to resent his mixing of state power over the economy and society with the promotion of his personal and political interests. Some in the elite also frowned on Mr. Bo’s crowd-courting, almost Western, style of politicking.

Mr. Bo’s rise came to an abrupt end on Feb. 6, after his longtime aide and Chongqing’s vice mayor, Wang Lijun, fled the city and sought refuge overnight at the United States consulate in Chengdu, in Sichuan Province. Mr. Wang left the American consulate after about a next day and was taken by Chinese security officials to Beijing for interrogation.       

The version of the party’s six-point report circulated on Friday purports to explain why Mr. Wang fled to the consulate and how the party contained the damage. In essence, it states that Mr. Wang left Chongqing because he feared for his safety after telling Mr. Bo that his family was under criminal investigation.

The party investigation’s “preliminary findings” state that Mr. Wang, whose portfolio included Chongqing’s security apparatus, told Mr. Bo on Jan. 28 about “important cases related to the Bo family.” Mr. Wang told him that some investigators on the cases had felt pressured and sought to resign.

“Comrade Bo was very unhappy about this,” the leaked transcript states. Within days, he arranged for Mr. Wang to be removed as police chief and demoted to a lesser role supervising education and science, without seeking the approval of the Ministry of Public Security, the document adds, “as rules dictated.”

The report does not address why Mr. Wang, a subordinate of Mr. Bo’s, would have sought to pursue his own corruption investigation against his boss. Corruption inquiries against a leader of the rank of Mr. Bo would normally be conducted by investigators under the direct authority of the party elite in Beijing, not by a provincial official.

According to the report, after Chongqing party authorities announced the move to local police on Feb. 2, investigations were initiated of Mr. Wang’s aides and the investigators of the cases against the Bo family, under pressure from Bo Xilai’s family members and people who worked by Mr. Bo’s side.

“Wang Lijun felt that his own personal safety was under threat. He then decided to leave.”

The document states that Mr. Wang filed a formal request for political asylum with American consular officials after discussing “matters related to cooperation and exchange,” but does not elaborate.

Rumors have been rife — and unverified — that Mr. Wang presented American officials with evidence of official corruption, and that he dispatched more evidence outside China for release in the event that someone should seek to harm him.

Both those rumors and the party’s findings underscore the unusual degree to which reports of corruption dog the Chinese elite, and color citizens’ view of their leaders. Few complaints about the government are as widely shared, and few seem as resistant to solution as the issue of graft.

In Mr. Bo’s case, however, corruption may be part of a broader effort by Mr. Bo’s rivals in the party leadership to sully his reputation as a populist Robin Hood who wielded his power to better the lot of Chongqing’s poor multitudes.

On Friday, Mr. Hu’s ally and heir apparent, vice president Xi Jinping, published an essay in a Communist Party journal calling for more discipline in the party’s ranks and criticizes those who “play to the crowd” or use their positions to gain fame or wealth.

Like Mr. Wen’s remarks at a news conference last week warning against radical policies that could trigger another Cultural Revolution, Mr. Xi’s article was largely interpreted as a swipe at Mr. Bo’s flamboyant rule.

Even so, Mr. Bo’s popularity and clout makes disposing of his case an “extremely dangerous” matter for party leaders, said Cheng Li, a scholar of the Chinese leadership at the Brookings Institution in Washington.

“If the charge is too lenient, some senior leaders and all liberal intellectuals will not agree,” he said. “If they only charge him with corruption, that will make him a hero among many people because the general perception is that corruption is a widespread phenomenon — so why are you singling him out?”