HASSAN NAWAZ SHEIKH The recent decision of the Supreme Court of Pakistan, declaring the NRO as void ab initio, has sparked a fervent legal debate about presidential immunity. On one end of the spectrum, we have the Pakistan Peoples Party's loyalists, including the likes of Barrister Aitzaz Ahsan, stating that President Zardari has constitutional immunity from prosecution and other judicial proceedings, whereas on the other end, voices are being raised against this so-called blanket immunity. It is clear that Article 248 of the Constitution of the Islamic Republic of Pakistan does afford protection to the office bearers as its Sub-article (1) states that the president, governor, chief minister and ministers will not be answerable to any court for acts done in their official capacity. Sub-article (2) of 248 goes on further and states that: "No criminal proceedings whatsoever shall be instituted or continued against the president or governor in any court during term of office." However, civil proceedings against the president can be initiated as long as the requirements in Sub-article (4) of 248 are satisfied. Is it not odd to find a provision, placing a person at a high pedestal beyond the reach of any judicial scrutiny whatsoever, in the Constitution of Pakistan which also states that all the people are equal before the rule of law? Perhaps not It is because such provisions are commonplace in nearly every country of the world. An obvious reason for this protection is to give sanctity to official acts, for as long as the president's office is immune from prosecution, governmental decisions can be taken by the office bearer without the fear of being held personally liable for them. The case of President Zardari's immunity may be termed as a case of first impression in the legal history of Pakistan, as no previous judgment by the domestic courts clarifies this issue. Therefore, it is common prudence that we should seek lessons from other countries where this doctrine has already undergone judicial analysis. In the legal jurisprudence of the United States of America, the issue of presidential immunity was first explored in the early case of Mississippi v. Johnson (1867) where the US Supreme Court held that the president is immune from judicial direction in the exercise of his presidential powers. Also in the case of Nixon v. Fitzgerald (1982) the US Supreme Court, with a majority of 5-4, held that the president is absolutely immune from liability for damages based on his official acts. The common theme in these cases is that the court restrained from judicially directing the president as how he should carry out his executive acts. However, the court's primary motive behind such restraint was to protect the doctrine of separation of powers, rather than any person sitting in the president's office, as this immunity is only extended to official acts. This was also confirmed by the court in the case of United States v. Nixon (1974), also known as the Watergate tapes case, where it was held that "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from the judicial process under all circumstances." This view seems more plausible, especially in view of the infamous Clinton v. Jones (1997) case, where, in a case of first impression, the US Supreme Court was concerned with the 'unofficial conduct' of a president. Ms Paula Jones, a former employee of Mr Clinton, sued him to recover damages of $70,000 for making sexual advances to her, while he was Governor California in 1995. However, President Clinton claimed that the suit be dismissed on the basis of his immunity. The court acknowledged the principle of presidential immunity, but restricted its scope to official acts only. The court refused to extend this immunity to cover those acts that were not part of the presidential duties and ruled that the president did not have immunity from suit for conduct alleged to have happened prior to his election to the presidency. Asif Ali Zardari became President of Pakistan in the year 2008, but faces threat of judicial proceedings for his alleged acts of corruption which occurred in the 1990's. His political allies have no hesitation in stating that Article 248 immunity extends to those suits as well. However, such an interpretation of the constitution would make the president an absolute power in himself, more like a demi-god. This does not seem to be the spirit of our constitution, especially in view of the established principles. It is really a time of concern for those busy relaxing under the shades of the President's House The writer is an advocate of the Lahore High Court. Email: hassannawaz@hotmail.com