PROTECTING Ex-president
President Mohamed Nasheed say's ex-President Qayyoom must be protected accordingly.
Ex legal reform minister has different school of thought in legal ZIETGEIST.
Let's see what ex minister say's in his POLITICAL BLOG.
I don’t believe that anyone can be immune from the application of criminal laws – whether president or peasant.
All privileges and all benefits otherwise available to a person due to an office he holds in the country such as president, minister, judge or parliamentarian or any other public official ceases where criminal law begins.
Put another way, every person is liable for any crimes he may commit, or any laws he may breach.
But there may be different ways to deal with different office holders. This does not negative or defeat the “equality principle” which says that each person shall be equal before the law.
Equality principle is sometimes misconstrued in the media and even amongst politicians to hold that the president or commoner, public official or not, everyone must be subject to the same standards and processes.
Equality principle does not mean that. Any student of constitutional law would know that the principle simply means “like cases must be treated alike”.
People placed in identical or similar circumstances must be subject to equal application of the laws, and there shall not be any discrimination in the manner they are treated.
Returning to the issue of prosecution, it is my firm belief that a serving president or past president must be held responsible for any breaches of the law or crimes he may have committed while as president.
The constitution is clear in article 6 of it that a president is to govern the country in accordance with the constitution. He is asked to rule within the perimeters of the constitution.
It means that his powers need to be exercised within the bounds of constitution and law. It also means that the moment he transgresses a law he is deemed to have exceeded his remit as president; is exposed to legal liability; and must be held accountable for his deeds. That process of accountability must never be closed or prevented or restricted.
But there may be different ways to deal with that liability.
For example, the current Maldives constitution, in article 127, says that if a serving president is accused of a crime he committed while in office or even before assuming office, his prosecution for that offence may be postponed till he ends his term, if the parliament resolves it necessary to do so.
When I look at the draft of the disputed provision in the controversial bill on ex-presidents, in view of the arguments made against it, I don’t think that the draft actually reflects the concerns which have been generated in the media or expressed by some politicians.
Draft bill in section 9 focuses simply on protection from acts or omissions committed “as president”. It neither gives a president carte blanche authority to commit crimes while in office nor does it afford an ex-president such a blanket cover to hide behind presidential immunity.
My reading of the substance of that provision is this: if a president leaves office without being held to have committed a wrong, he shall not be subjected to any prosecution or enquiry in respect of any act or omission committed in his capacity as president.
I read it to be a protection against vexatious and frivolous claims. I read it not to be as any protection from criminal liability.
Said another way, I read the bill simply to mean that an ex-president cannot be held liable for the manner in which he had exercised his executive discretion.
It is undisputed that neither the constitution nor the law affords him any protection against any act committed or omitted in violation of the constitution or law – simple because the law gives him power to govern according to the constitution.
While I believe that none can be protected from criminal liability or prosecution, I admit that executive discretion must be protected.
Let’s take an example. While there may be a large number of people who may not have liked the current president to privatize the country’s international airport, he cannot be exposed to any litigation or inquiry because of that, as he did not commit an offence prescribed by law.
He may be subject to criticism in a public court of opinion, but not to conviction in a court of law.
This president may have waived with a single stroke of his pen nearly Rf 600 million worth of otherwise receivable tourism related revenue in December last year as an act of compassion towards certain tourist resort owners. He cannot be held liable if he has not breached a law.
The president cannot either be quizzed or tried for creating utility companies in the manner he has decided to do so, if he has not breached a law.
Simply for one reason – all of it is within his executive discretion or presidential prerogative.
Similarly, there must be several acts within a thirty year rule, where the ex-president can be pulled up for his acts or omissions. I recall one from a press release of the presidential commission.
Why did the ex-president decide to partner with Malaysian Helicopter Services instead of Emirates to create Air Maldives? That is totally within his discretion as head of state, and he cannot be questioned on that. That is no breach of a law. That is an exercise of his presidential discretion.
It may not be to the liking of a large number of people. And in hindsight, it may not also have proved to be a worthy effort. But criminal inquiry or prosecution would fail on that, for absence of a breach of law.
Therefore, in approaching or understanding draft section 9 of the bill on ex-presidents, we need to appreciate the difference between acts which are against a law and acts which are disliked but within the prerogative of a head of state.
While there cannot be immunity from legally wrong acts, there ought to be every protection given to safeguarding decisions made within the remit of presidential discretion. Otherwise, one cannot govern at all.
And this is a protection we afford not to presidents alone. We give similar immunity from suit to members of independent commissions and offices as well. If you look at laws on Human Rights Commission, Anti-Corruption Commission, and Prosecutor General you would come across protection from court battles being granted in relation to what they do in their capacity as those office holders.
My conclusion is this: whether or not, section 9 of the bill on ex-presidents survives the criticism it has encountered, Maumoon Abdul Gayoom can still be subject to criminal inquiry of a presidential commission or criminal prosecution in a court of law in respect of any act he may have committed against a law during his tenure as president. But the three constitutions under which he had served would protect him from being questioned on any decision falling within presidential prerogative.
The disputed bill is no cover to exposing the ex-president to criminal prosecution or inquiry in respect of a crime or legal wrong. The draft bill proposes to protect him only to the extent of acts or omissions committed as president, that is to say, in his capacity as president and within the constitution, and in the exercise of his executive discretion and prerogative.
That is all. And if that meaning is not clear for all alike, I propose that the draft be further improved to spell out just that in precise terms.
http://www.mnasheed.com/2009/09/immunity-from-prosecution/
