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The Supreme Court of Pakistan continued its contempt of court proceedings against Prime Minster Yousuf Raza Gilani for his refusal to write a letter reactivating a Swiss case against President Asif Ali Zardari this week. The white elephant that the Supreme Court justices refuse to address is presidential immunity, which Gilani cites as legal authority for his refusal to follow court orders. The Court has given oral statements about the limitations of presidential immunity in court, but has yet to issue a written opinion on its application. The justices should consider the dangerous precedent set by imprisoning a sitting prime minister without addressing the central issue of presidential immunity for future leaders that may take his place.

The Prime Minister is required by oath to protect Pakistan’s constitution; Article 248 (2) of the Constitution states that the President “shall not be subject to any criminal proceedings whatsoever.” Gilani has raised a positive defense for his contempt charge, claiming that following the Courts instructions in writing the letter to the Swiss would violate his oath of office. The Court has not issued an opinion on the existence of presidential immunity since its original order which asked the government to reinstate the case against Zardari.

Many have lambasted the Prime Minister’s advocate, Aitzaz Ahsan, for making weak arguments in the case, but he has been greatly hindered by the fact that the Court has refused to address certain issues. In the primary hearings, Ahsan raised the issue of presidential immunity and informed the judges that the PM’s legal advisors instructed him not to write the letter in order to uphold the Constitution. However, the Court responded that they would not decide the issue of presidential immunity until it was pled by President Zardari.

Many other technical Courts around the world would have also excluded substantive arguments of presidential immunity since it was not directly related to the prime minister’s case. However, such a decision by Pakistan’s court is remarkable when one remembers how the Court has heard prospective or hypothetical claims before. In Memogate, Zardari and Ambassador Hussain Haqqani were alleged to have asked for assistance from the American Army in a counter-coup against the Pakistani Army. The Court accepted petitions from Zardari’s political opponents, like Nawaz Sharif, who claimed that if the memo were true and if the American Army attacked Pakistan, then their fundamental rights would be violated.

While the judges were willing to hear hypothetical claims in that case, they are unwilling to hear arguments that directly relate to the prime minister’s innocence in his contempt case. There could be several reasons for this, including a genuine interest by the Court to not decide on presidential immunity until it is directly relevant in a case.

However, the Court's unwillingness to address presidential immunity in a written statement has created a perception that the judges are acting as political characters. From this perspective, rather than create precedent on immunity in Gilani’s case that may bind the judges’ hands later, the Justices are waiting until a claim is brought against Zardari so they can find a way to depose him despite Article 248.

For less cynical analysts, it seems that the Court is acting cautiously to develop a standard for presidential immunity. This is evident from the response of Justice Wajhuddin Ahmed to Gilani’s claim that the president enjoys blanket immunity from all prosecutions. The justice pointed out that while Article 248 protects the president from prosecutions by Pakistan’s courts, “As far as international law is concerned, it is for the Swiss courts to decide.”

Since this statement was spoken by the Judge and not issued in a Court order, it does not create legal precedence. If the Court were to approach the issue of presidential immunity, they could look to the United States, which has greatly limited immunity for its head of state. In Nixon v. US, the Court held that the president did not enjoy a blanket immunity, and must specifically plead the reasons for immunity in his case. In Clinton v. Jones, the Supreme Court upheld a lower court’s decision that allowed for the president to be sued in civil court for acts outside his scope as president.

The Clinton case was similar to Zardari’s Swiss case, as both are civil claims for acts they committed before becoming president. The US Supreme Court would likely hold that Zardari did not enjoy immunity based on the policy behind immunity. As a society, we prefer our heads of state to make decisions unfettered by the concern that they could be sued for their policies. Government policies often fail, and if the president were subject to civil suits for all of their ‘bad policy decisions,’ presidents would be petrified to make any decision in office. Therefore, the US Supreme Court has prohibited criminal or civil actions to be brought against a serving president for acts they committed within the scope of their role as president, not for their personal actions.