Why executive immunity? By Shabbir KhanPublished: September 7, 2012 Share this articlePrint this page Email The writer is a PhD Scholar at West Virginia University in the US It is naive to say that all people are equal before the law. All people are not equal before the law in any country. Some people are more privileged than others through executive immunity, which is granted to officers in the executive branch of government to free them from personal liability for omissions committed while carrying out their duties. There are five major reasons why executive immunity came about in Pakistan and in other systems, including the need for stability, freedom of action, democratic necessity, time and energy. The British prime minister and other Queen’s men enjoy absolute immunity or ‘Crown immunity’. In 1610, UK Chief Justice Edward Coke tried to undermine parliament by declaring in the Bonham case that an Act of parliament could be set aside by the Court if it was against the ‘common right or reason’. The doctrine did not work and Coke was transferred and later dismissed as chief justice. After Coke’s fate, it was established in the UK that parliament was above the law. Despite having an independent judiciary in the US, the Supreme Court granted presidents absolute immunity in criminal law suits but partial/qualified immunity in civil suits. None of the 43 US presidents in 225 years of American history has ever appeared in the Court. Mississippi vs Johnson in 1867, Nixon vs Fitzgerald in 1982 and Clinton vs Jones in 1997 are landmark cases regarding presidential immunity. The first major reason is that criminal suits would ultimately result in disqualification or discharge of the executive from his/her duties. All constitutions ensure the executive stability of the head of government in his or her tenure in office until removed or impeached as mentioned in the law. In both the presidential system, as in the US, and parliamentary systems such as in the UK, Canada, India, Japan, Italy and Australia, the executive head cannot be removed from office by the courts. The prime minister of Pakistan is also a chief executive having control of the nuclear button in case of threat to the country’s survival. This office must not be left vacant even for a second. The second reason for executive immunity is to give the executive freedom of action to perform its duties in the public interest. It is the foremost job of any executive to execute and enforce the laws of a nation. Courts have neither the resources nor the power to implement decisions. It is also against the principle of non-interference in the affairs of the executive. They have to make decisions regarding domestic and foreign affairs. Let them do freely what they think is best for their nation. Thirdly, it seems undemocratic for non-elected judges to oust an elected person. The executives are not ordinary ‘citizens’ as mentioned in the law, particularly when they are in office. Disqualification from office is the highest form of punishment for an elected person. In stable democracies, such as in the US and western European countries, even members of legislatures are not disqualified by the Courts. Generally, the ethics committees of legislatures decide such issues. Take the example of Charles Rangel, a congressman from New York, who was recently censured by the House of Representatives for multiple legal and ethical misdeeds. The fourth and fifth reasons to give immunity to executives are time and energy. Being an executive requires tremendous energy and exposure. Just as judges are immune from any litigation, the executive also has immunity. They should spend a reasonable amount of time on matters of public, not personal, interest. They must protect the people in both peace and war. According to Article 248(1) of the 1973 Constitution, the prime minister and his cabinet enjoys executive immunity. The prime minister can be removed from office only by a vote of no-confidence under Article 95(4). The Supreme Court of Pakistan set an extraordinary precedent by stretching the law to the extent that a unanimously elected prime minister had to leave office. Many are of the view that this was an unimaginable jolt to parliamentary democracy in this country. Published in The Express Tribune, September 8th, 2012.
Posted on: Thu, 28 Aug 2014 03:17:22 +0000