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...
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