Ideas & Philosophy — 31 January 2012
The Fallacy of Political Immunity

Shaban Ul Haq

Whilst the winds of the Arab Spring of 2011 continue unabated into the cold spell of 2012 in Syria, Yemen and beyond, the pleas of political immunity from former brutal dictators deposed or in the process of being deposed [Mubarak, Ali Abdullah Saleh etc] is clear for all to hear, as they frantically grasp at any last attempt to salvage themselves from the justice of their people. Ironic that the very dictators who have unleashed decades of ruthless brutality and indiscriminate subjugation of their own people, now grasp at the straws of political leniency to protect their own lives.

Traversing not far afield from the geopolitical plains of the Arab Spring, one finds a similar echo in Asia and the political quagmire unfolding therein. I am talking about Pakistan, and a land to yet taste its much-needed ‘Arab Spring’. Pakistan’s leadership is currently using the same mantra of political immunity to protect its President Asif Zardari from facing charges of corruption and embezzlement of millions from public funds.

Let me hasten to add, the recourse to seeking protection via political immunity is far from being the reserved privilege of brutal dictators of the Middle East or corrupt politicians of Africa or Asia. The ‘lofty principled’ politicians of Western Europe in fact lead their oft-sponsored subordinates of the MEA regions or beyond. In fact, policies are often drafted and executed cognizant of the safe havens political immunity provides the office of leadership during office and beyond.

Take Italy’s former Prime Minister Silvio Berlusconi as an example. Under his leadership, the immunity bill was rushed through parliament to protect him against any prosecution for financial misdeeds [in addition to allegations of mafia collusion, false accounting, tax fraud, corruption and bribery of police officers and judges]. Such trials will almost certainly never be resumed as by the time Berlusconi left office [November 2011], too much time had already elapsed from the date of the alleged offence for the trial to be legally possible. Whilst Jacques Chirac, having managed to stave off prosecution while President [Controversial judicial decision in 1999 granted Chirac immunity while he was President of France], was however only later charged in relation to a party-funding scandal during his term as mayor of Paris. As for the likes of George W Bush and Tony Blair who were responsible for the illegal war against Iraq resulting in the deaths of millions with further unfathomable and unquantifiable losses against the entire civilization of Iraq, today are free to wonder knowing that they stand protected by political immunity.

All the above cases rightly caused uproar amongst society, as do the cases of Abdullah Ali Saleh, Mubarak or Asif Zardari and political immunity. It is sheer preposterous and abhorrent that some people should be deemed over and beyond law and allowed to remain unaccountable for heinous crimes against their people or any people for that sake.

So what makes some people deemed to be over and beyond the common law and justice of any society that purports equality for all and more importantly is it right?

The doctrine of political immunity stems from the ancient English principle that the monarch can do no wrong, which is from its origins not only fundamentally flawed but was politically orchestrated to ensure subjugation of the subjects by the sovereign. Since the sovereign is the historical origin of the authority which creates the courts, thus the courts had no power to compel the sovereign to be bound by the courts, as they were created by the sovereign.

Today government leaders and administration continue to enjoy this flawed outright legal protection home and abroad [to varying degrees country to country] immune from civil suit or criminal prosecution for their actions and policies irrespective of the injustice and criminality.

All the greater is the legacy of this archaic English law and system that has been left by the former empire for their once subjects across the Middle East, Asia and Africa. Today’s application of this law and system allows the Pakistani leadership and President to in effect ransack the funds of a resource rich nation reduced to poverty without account. It allows dictators such as Abdullah Ali Saleh, Mubarak and others to unleash decades of brutality and death on their citizens yet lay claim to being immune from prosecution due to this ‘special privilege’. It allows Bush and Blair responsible for the genocide of a civilization to simply walk free. And it allows Raymond Davis to kill innocent Pakistani citizens in broad daylight in the streets of Lahore without the fear of any prosecution.

Not only is this principle flawed and contrary to the principles of any form of ‘equality’ and justice, but it is fundamentally wrong. Just because a principle is embedded in English law doesn’t make it correct, especially when it so overtly contravenes rudimentary principle of equality for all before the law?

As for Islam, the concept of political immunity as defined by the archaic English principle cited earlier is non-existent. The Qur’an is very clear on the principle of equality and justice as evident by the following verses:

“Oh you who believe, be persistent in standing for justice as witnesses to God; even if it be against yourselves, parents, or other relatives. Whether one is rich or poor, God is more worthy than anyone. So don’t follow personal inclination, lest you be unjust” [Qur’an 4:135]

“Indeed, the most noble of you in the sight of God is the most righteous of you” [Qur’an 49: 13]

The Prophet Muhammad (peace be upon him) said, “God, the Almighty, does not consider how your appearances or how rich you are, rather He looks to your hearts and your deeds”

Away from the sacred texts of Islam, and looking at the application of these principles one finds numerous citings demonstrating the equality and justice for all as enshrined in the above Qur’anic verses and Prophetic traditions irrespective if one is a mere citizen [Muslim or Non Muslim] of the Khilafah State [Caliphate], Governor of a Province, or even the Khalifah [Head of State].

In fact such was the magnanimity and justice of the Prophet of Allah, the highest authority in Islam, that he even put himself at the disposal of his companions, and was prepared to apply the law even against his own household should it be established as is demonstrated in the following Prophetic traditions.

For example, ‘Aisha narrated that: The people of Quraish worried about the lady from Bani Makhzum who had committed theft. They asked, “Who will intercede for her with Allah’s Messenger?” Some said, “No one dare to do so except Usama bin Zaid the beloved one to Allah’s Messenger.” When Usama spoke about that to Allah’s Messenger he said: “Do you try to intercede for somebody in a case connected with Allah’s Prescribed Punishments?” Then he got up and delivered a sermon saying, “What destroyed the nations preceding you, was that if a noble amongst them stole, they would forgive him, and if a poor person amongst them stole, they would inflict Allah’s Legal punishment on him. By Allah, if Fatima, the daughter of Muhammad stole, I would cut off her hand.” [Sahih Bukhari, Volume 4, Book 56, Number 681]

On the occasion of the Battle of Badr, when the Prophet was straightening the rows of the Muslim army he hit the stomach of a soldier in an attempt to push him back in line. The soldier complained “O Prophet, you have hurt me with your stick.” The Prophet immediately bared his stomach and said: “I am very sorry, you can revenge by doing the same to me.” The soldier came forward and kissed the abdomen of the Prophet and said that this was all that he wanted.

The Muslim Caliphs, Governors and Assistants were all subject to the same spirit and example as demanded by the Qur’an and Sunnah. One could cite examples of Ali as caliph and his court case whilst leader of the Muslims, or the examples of Umar while leader or their Governors to further demonstrate this point.

Take the example of Umar and the Governor of Egypt. During the Khilafah of ‘Umar, Muhammad the son of ‘Amr ibn al-‘As the Governor of Egypt, whipped an Egyptian. The Egyptian went to Medina and lodged his complaint with the Khalifah who immediately summoned the Governor and his son to Medina. When they appeared before him in Medina, the Khalifah handed a whip to the Egyptian complainant and asked him to whip the son of the Governor in his presence. After taking his revenge when the Egyptian was about to hand over the whip to ‘Umar, he said to the Egyptian: “Give one stroke of the whip to the Honourable Governor as well. His son would certainly have not beaten you were it not for the false pride that he had in his father’s high office.” The plaintiff submitted: “The person who had beaten me, I have already avenged myself on him.” ‘Umar said: “By God, if you had beaten him (the Governor) I would not have checked you from doing so. You have spared him of your own free will.”

The point of the matter is that Islamic law is in tune with human nature and provides the justice and equality all men deserve, whilst English law both its precedents and roots of legislation are intrinsically prone to fallacies and contradictions, and will always remain so.

As for diplomatic immunity, which Islam recognizes, this is not to be confused with the diplomatic or political immunity as defined in the Western concept [e.g. Raymond Davies]. Diplomatic immunity in Islam gives the political delegate some diplomatic privileges whereby he can do his duties without any constriction, or fear of his life, wealth, assistances, and his residence.

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(1) Reader Comment

  1. Sir,

    Excellent article but a few comments.

    1. The idea of sovereign immunity was struck down by the British as well
    as European courts, on the pretext that a crime convicted by a sovereign
    with the intent of committing the crime does not invoke immunity, as in
    the case of Chilean dictator Augusto Pinochet (I hope that I am spelling
    it correctly)

    2. The definition of sovereign immunity is misplaced or rather incorrect
    in the constitution of Pakistan. The preface to the constitution, AKA
    Objectives Resolution (unanimously passed by the founders of the state
    and the first legislative assembly), states clearly that All Sovereignty
    Belongs to Allah (SWT). This strikes down the Sovereignty clause as it
    appears in 1973 constitution. Interestingly, it has never been
    challenged on this ground and on the ground of Inequality and bias, as
    you have correctly pointed out.

    3. The diplomatic immunity was first granted, in Islamic rule, in the
    time of Prophet (Peace be upon him) and extended to the extent that
    diplomats can perform their duties without constriction and within the
    rules of the state and guaranteed that diplomats will not be harmed,
    should they remain in these parameters. This was the unwritten rule till
    the reign of Suleiman the Magnificent in 1559, when he accepted the
    right of French diplomats and citizens to be tried under French law if
    they broke the Turkish law. This in effect was start of the so-called
    “Modern Diplomatic Immunity”. The English changed it to the extent, that
    a person having such immunity will be deported or the host state will
    ask the guest state to waive the immunity.

    4. Unfortunately, in Raymond Davies case, he did not have the diplomatic
    immunity nor enjoyed any diplomatic privileges. He should have been
    tried under CPC-302 (Murdering with intent to kill) and ATC clause 7
    (Terrorism – Keeping unlicensed arms), but was never done that way.

    Regards,

    Saleem

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