Immunity from prosecution is provided to elected leaders, head of states and other officials either for life or during their time in office, in many legal and constitutional systems. This may only be connected to matters directly related to office, or it may be for any prosecution. This immunity drive its origin from English common law based on doctrine that “rex non potest peccare” means the king (or queen) can do no wrong and the King could not be sued in his own courts.
Historically Pope Gelasius (I) established sovereign immunity as a political principle, as a mean to protect the sovereign pontiff and Holy See from trials and persecutions.
The same concept was adopted in many countries as French presidential office carries with it, the immunity from all prosecution while the president remains in office. In the U.K. parliamentary immunity operates so that Members of Parliament cannot be sued for libel for what they say in Parliament. The USA also follows the suit and adopted the same concept in the constitution. The Constitution of Pakistan Article 248 also provides presidential immunity during his term of office.
Due to democratic and human rights activist these immunities are challenged and now theoretically, there are compelling arguments for both proponents and opponents of the presidential, sovereign and head of state’s immunity.
On one hand proponents argue that
• Immunity allows the president, head of state etc to remain focused on serving his office effectively.
• It is cardinal principle of justice that accused would receive a fair and impartial trial and it is very difficult when the accused holds public office. As being head of state he has an active involvement in the executive or legislative branches, will perhaps brought them into conflict with the judicial branch, as immunity would only be for the period while in the office so after serving office, wrong doing would be fully prosecuted.
• The opposition focus to destabilise the government by involving them in legal action even if the accusations are groundless or very unlikely to succeed in court. It is important that the many frivolous suits which would otherwise be brought as political stunts are stopped, at least while the person remains in public office.
• Criminal cases especially where there is morality, could deeply damage the public respect for high office.
• The role of the elected president, head of state is to serve the interests of his state so he should only be accountable to the people.
• The president, head of state is role model and responsible person with a good reputation and people can trust him – otherwise they wouldn’t be voted in.
• Immunity from prosecution will not mean he decide to start committing crimes as media is constantly watching and would be shamed and humiliated by the media if he do something that may have them charged if they weren’t immune from prosecution. Moreover, he wants to be re-elected and people would not vote for him if he has a criminal record.
On the other hand opponents argue that
• In a democracy, no one is above the law.
• Justice can only be truly exercised through a speedy process when there is fresh evidence and easy for witnesses to recall important facts. To immune from prosecution while in the office could prolong the process.
• The power without accompanying responsibility and accountability will actively encourage abuse of power, because the person will know that he is effectively unaccountable for his actions at law.
• The public office carries with it any inherent dignity other than that of its current bearer.
• By taking the refuge behind immunity, the system encourages them not to censor themselves and so air their prejudices.
• Where president, head of state knows that his immunity ends when he leaves office, he has an incentive to hang onto office for as long as possible to avoid prosecution which could damage the democratic process. It also can lead to attempts to change constitutions to allow further terms in office.
• If president, head of state immune from prosecution, he would use it as an excuse to break the law and get what he wants.
Now trends are changing as many states have waived the immunity to allow for civil suits as well as criminal prosecution, as USA President Clinton faced a prolonged court case over accusations of sexual misconduct and an impeachment attempt in Congress.
In United Kingdom, the Crown Proceedings Act 1947 extended the liability of the Crown to areas of tort and contract and allowed, for the first time, that civil actions against the Crown to be brought in the same way as against any other party.
So for as criminal trial is concern it is argued that a civil case like libel is one thing, and criminal trial where the defendant faces the possibility of going to prison is quite another so one of the most famous and controversial case in Stuart England’s history was of Charles I 1649 who was the first monarchs to be put on trial for treason that led to his execution.
In U.S. v. Isaacs, the 7th. Circuit Court of Appeals upheld the conviction of former Gov. Otto Kerner, who was appointed as a Federal Judge and prosecuted for actions taken while he was Governor of Illinois.
He raised the issue that he could not be prosecuted criminally prior to a formal impeachment conviction. The 7th Circuit denied that defense and cites a long list of officials who were prosecuted prior to their impeachment. The weight of the authorities, hold for the proposition that there is no such legal theory as “absolute immunity from criminal prosecution of a public official recognized by the courts in the United States.
In United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261, 27 L.Ed. 171, it was stated that,
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with immunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it”.
In Nixon v. Fitzgerald (1982), the Supreme Court ruled that the President is entitled to absolute immunity from liability for damages based on his official acts.
Justice Lewis Powell noted that the Court had never before ruled on the scope of presidential immunity. Many public officials have a limited, or “qualified,” immunity that applies so long as they have acted in “good faith.” Some other officials, such as judges and prosecutors, have been given an unlimited, or “absolute,” immunity because of the special nature of their duties. Giving the President only qualified immunity; Justice Powell observed, would make his actions subject to review by the judicial branch and might compromise the separation of powers. Law suits could distract the President from his official duties. The scope of the President’s authority and responsibility is so broad that it is not realistic to restrict his immunity. Powell wrote that determining “good faith” would mean that the President’s motivations would have to be examined in each case, which would be highly intrusive.
Justice Byron White’s dissent argued that the majority’s rule was too broad. Under it, a President could “deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured.”
Clinton v. Jones, 520 U.S. 681 (1997), was a landmark United States Supreme Court case establishing that a sitting President of the United States has no immunity against him, for acts done before taking office and unrelated to the office. In a unanimous decision, the Supreme Court affirmed the decision of the Court of Appeals.
In the majority opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil l suits against the President until the end of his term of office.
In his concurring opinion, Breyer argued that presidential immunity would apply only if the President could show that a private civil suit would somehow interfere with the President’s constitutionally assigned duties.
The Supreme Court noted that Nixon v. Fitzgerald gave the president “absolute immunity from damages liability predicated on his official acts,” but did not extend this immunity to actions that were clearly outside the scope of his presidential duties. The major rationale of Fitzgerald was to remove the possibility that the threat of litigation would make the President “unduly cautious in the discharge of his official duties.” Jones’s allegations involved acts that allegedly occurred before Clinton became President, so Fitzgerald’s reasoning did not apply and Jones should be allowed to bring her case.
Finally, the Supreme Court acknowledged that the trial court judge would have the discretion to schedule the various aspects of the case to minimize disruption of the President’s official duties. The Court ruled that it is not appropriate, however, to automatically require the plaintiff to wait until the end of the President’s term in office.
International law recognises functional and personal immunity from prosecution and allows an accused to avoid prosecution for criminal offences.
Any person who in performing an act of state commits a criminal offence is immune from prosecution e.g. President or Head of Government, senior cabinet members, Foreign Minister, and Minister for Defence. Such officers are immune from prosecution for everything they do during their time in office.
In Mugabe, reported at (2004) 53 ICLQ 789 it was held that a warrant could not be issued for the arrest of Robert Mugabe on charges of international crimes on the basis that he was a presently serving President at the time the proceedings were brought. Other examples are the attempts to prosecute Fidel Castro in Spain and Jiang Zemin in the USA.
However, the moment accused leaves office, they are liable to be prosecuted for crimes committed before or after their term in office, or for crimes committed whilst in office in a personal capacity.
In Pinochet case the House of Lords, in an historic decision with international repercussions, divested him of his legal immunity, ruling that even heads of state can be held accountable for crimes against humanity.
In 2004 the Appeals Chamber of the Special Court for Sierra Leone held that indicted Liberian president Charles Taylor could not invoke his President immunity to resist the charges against him, even though he was an incumbent President at the time of his indictment. This decision indicates the changing direction in international law on this issue although November 2007, French prosecutors refused to press charges against former US Secretary of Defence Donald Rumsfeld for torture and other alleged crimes committed during the course of the US invasion of Iraq, on the grounds that heads of state enjoyed official immunity under customary international law, and they further claimed that the immunity exists after the official has left office.
Personal immunity arises from customary international law and confers immunity on people holding a particular office from the civil, criminal, and administrative jurisdiction. This immunity is extended to diplomatic agents and their families while posted abroad so this is nothing to do with sovereign, head of state or presidential immunity.
In Criminal Prosecution of an Incumbent President by John H. Kim, Esq“…… in free countries the law ought to be king; and there ought to be no other. Nothing in the international law, U.S. Constitution, federal statues or court cases provides a blanket immunity for an incumbent President or other federal officials from criminal prosecutions. History and public policy also argue against such immunity.
As the U.S. Supreme Court pointed out long ago, “no man in this country is so high that he is above the law….All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is high time for the American people to uphold and defend this fundamental principle of equal justice for all, which is one of the most important American values now ingrained in the 14th Amendment of the Constitution “equal protection of the laws”.
The constitution of Pakistan is amalgam of USA, UK and Islamic laws we have already seen the changing trend in modern constitutions regarding prosecution immunity.
On the other hand Islam never admits immunity. As Quran says , An-Nisa 4:35 “,O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.”
Hazarat Aysha (R. H) reported that the Quraish had been anxious about the Makhzumi woman who had committed theft, and said: Who will speak to Allah’s Messenger (may peace be upon him) about her? They said: Who dare it, but Usama, the loved one of Allah’s Messenger (may peace be upon him)? So Usama spoke to him. Thereupon Allah’s Messenger (may peace be upon him) said: Do you intercede regarding one of the punishments prescribed by Allah? He then stood up and addressed (people) saying: O people, those who have gone before you were destroyed, because if any one of high rank committed theft amongst them, they spared him; and it anyone of low rank committed theft, they inflicted the prescribed punishment upon him. By Allah, if Fatima, daughter of Muhammad, were to steal, I would have her hand cut off.
There are many examples in Islamic history when a dispute arose between the (King) Khalifah and an ordinary person; both had to appear in court to prove their case. Once Amer Bin Al ‘Aus, governor of Egypt’s son struck a Christian man and told him that he is the son of an honoured family that man went from Egypt to Madinah complaining, Khalifah Hazrat Umar( R.A.) then Khalifah called the governor and his son and ordered the complainant to strike the son of the governor the same way he was struck, and turned to Amer Bin Al ‘Aus the governor and said: “When did you enslave people while their mothers born them free.”
The Objectives Resolution and Preamble states that sovereignty over the entire universe belongs to Allah Almighty alone, Article 227 states that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, and no law shall be enacted which is repugnant to such Injunctions.
On Dec 16, 2009 the Supreme Court, unambiguously states, “In His (Almighty Allah) service and obedience, all humans are equal and stand on the same level without any discrimination to all as one race and one people before Him, no one claiming any special privileges and honours.”
The modern constitutional laws and international law allow the judiciary to pierce the presidential, head of state immunity veil and reject the theory of absolute immunity, while Islamic law never favour head of state / presidential immunity.