On prima facie constitution give them immunity ..... but this clause was never abused in the same manner before as it is being abused nowadays .... so probably someone should seek clarification from SC of Pakistan as it also act as constitutional court of Pakistan and have right to define the constitution, therefore in my opinion there could be 2 right approaches for this
- IF someone file Constitutional Petition in SC to seek clarification of this clause
- Or President seek Advice from SC on this clause
but in My opinion
(I am not a Lawyer just a reader and observer) this clause is not granting Blanket Immunity .... there must be some limitations of this clause
which as of now are not define
@saiyan0321 ..... might be a more suitable person to comment on this
I am not the one who wrote this its Constitutional Clause#66 you can check it yourself ......
Article 66 of the constitution is a very interesting article and it is one of those articles that can expand the constitution to include other relevant laws.
So first what is the Article 66. Its reproduction is the following;
66. Privileges of members, etc.-
(1) Subject to the Constitution and to the rules of procedure of 1[Majlis-e-Shoora (Parliament)], there shall be freedom of speech in 1[Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in 1[Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of 1[Majlis-e-Shoora (Parliament)] of any report, paper, votes or proceedings.
(2) In other respects, the powers, immunities and privileges of 1[Majlis-e-Shoora (Parliament)], and the immunities and privileges of the members of 1[Majlis-e-Shoora (Parliament)], shall be such as may from time to time be defined by law and, until so defined, shall be such as were, immediately before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members.
(3) Provision may be made by law for the punishment, by a House, of persons who refuse to give evidence or produce documents before a committee of the House when duly required by the Chairman of the committee so to do:
Provided that any such law-
(a) may empower a Court to punish a person who refuses to give evidence or produce documents; and
(b) shall have effect subject to such Order for safeguarding confidential matters from disclosure as may be made by the President.
(4) The provisions of this Article shall apply to persons who have the right to speak in, and otherwise to take part in the proceedings of, 1[Majlis-e-Shoora (Parliament)] as they apply to members.
(5) In this Article, 1[Majlis-e-Shoora (Parliament)] means either House or a joint sitting, or a committee thereof.
By its clear reading, we have come to know that a member of the parliament has special privileges and these privileges are different from the ones allotted to other institutions in the name of freedom of speech and expression. Now first of all Pakistan is home to the trichotomy of power which means that the country has no single sovereign but three institutions that are working together for proper governance of the country. Judiciary, Legislative aka the parliament and the executive. These three equal institutions balance each other out and as such are home to special privileges that chain the other institutions from taking action against them like for example the court cannot initiate proceedings against the member of the parliament and the member of the parliament cannot talk about the courts in the parliament. This is the balance that creates the proper governance of the state.
Now the article is one we have inherited from British Era and is a product of their legal evolution, You see when the people and the parliament of the British was fighting for more autonomy and more security especially during the reign of King Charles the first and in this ensuing power struggle between the parliament and the reigning monarch, their needed a form of security. You see the king's laws were implemented by the crown and the parliamentarians feared talking about the king's laws fearing the ire of the monarchy or a possible retaliation so this privilege was added as Article 9 to their bill of rights in 1689. This was they could talk about any issue without being pressured through executive or legal proceedings and this was a massive shield for the parliamentarian. This was never meant to provide them any protection from confessional or other immunity against crimes committed by them and this was held In the case of R. Chaytor [2010] the UK Supreme Court concluded that four parliamentarians charged with misappropriation of expenses (being discussed in Parliament) were not entitled to protection of Privilege and of course in 1999 Joint Committee Report of the UK on Parliamentary Privilege specifically observed that Houses of Parliament were not “a haven from the law” while another 2013 Committee Report reaffirmed neither the Bill of Rights nor cognizance of the House of Commons posed any bar to the jurisdiction of the Crown Court.
So this is a bit of a history of the law and how it came to be and what was the reason behind it. Coming to Pakistan. The importance of the article stems from the fact that the parliament in Pakistan faces severe pressure from external elements and from the very trichotomy itself. You have the courts placing pressure and pre 2010 you have the executive placing pressure at the same level as 1600s British monarchy and we witnessed this in the form of martial laws or the the 90s and people need help if they think Bhutto could take criticism. The guy could not take criticism and those that opposed him or spoke against him earned his wrath. So with Pakistan we see that Article 66 stems from necessity because in its absence the floodgates would open and the pressure that they already face would become a 100fold. I am telling you this to help you see the article and our political situation. This isnt a reference to any incident or this particular incident.
With the history done and its relationship with Pakistan highlighted.
Lets come to the question at hand. If there a limit to the Privilege? Can a parliamentarian say whatever comes from him mouth in the parliament? Can he speak the country, the very formation of the state, the founding fathers, Islam or any seditious material and be safe due to the privilege?
There is actual jurisprudence to this and this question has been brought to courts multiple times but often relating to trichotomy rather than solely concerning to an institution that is subservient to the trichotomy. For example most precedents concern parliamentarians abusing courts and from these precedents we must see whether there exists a limitation that is not just based on trichotomy of power.
In the
PLD 1998 SC 823 the court indeed declared that Article 66 Clause 1 does indeed empower a member as such however the court held that Judiciary enjoys the ultimate authority of Judicial review and when parliament at any stage endeavors to transgress its limits (A highlight to there being limits to parliaments and members), by infringing upon the jurisdiction of other organs (i.e the trichotomy of power) and thus by doing so affecting the broad features of the objectives resolution. The court held that the prime minister as chief executive is obliged by various provisions of constitutions to address the nation or the parliament and apprising them of various national issues which may indeed have a possibility to adverse the smooth governance of state HOWEVER the court held that despite this he does not enjoy license for damaging or violating integrity of its constituent organs.
Another very important case which all of you would know much about is the Nawaz sharif disqualification case cited
PLD 2017 SC 265 and here we see another limitation placed on parliamentarians where the court held that the said article was in respect to liability to any proceeding in court in respect of anything said in the parliament but not even the floor of the parliament is utilized in advancing a personal explanation regarding a matter especially if the said speech was not just meant to appraise the parliament but the people of Pakistan due to the heavy presence of media. So here we see that the floor of the parliament is not some safe space where you can speak anything you desire. There are limitation.
There is another case where this was discussed and it is cited as
PLD 1975 SC 383. Its a pretty famous case titled Zahoor Elahi vs Zulfiqar Ali Bhutto and the case was concerning on the limitations placed to talk about the court. Now i am not going into the facts of the case but how the court interpreted the law itself. Now the law in question was not Article 66 but Article 248 which provides immunity to President, Governor, Prime Minister and ministers,. The court in this case held firstly that immunity provisions must be interpreted very strictly and cannot be granted an expansive view point and they must be contained within the provisions itself. When you interpret a law, you can take a stricter view or an expansive view to allow for a wider array of area that the law covers. The courts in their wisdom utilize these two aspects where they feel its necessary and the court held that immunity provisions must be interpreted very strictly. The court declared that this act basically covers official acts and not acts done in private capacity or criminal acts that he may have done., If he has any other capacity, then he cannot claim immunity for act done in that capacity if it has no relation whatsoever to the office of the Prime Minister. It is true that the immunity cannot possibly extend to any, thing done illegally, nor does the immunity protect the Prime Minister in respect of any criminal proceeding. In order to avail of this immunity, it must be shown that whatever was done had some co-relation to the official functions or duties or powers of the Prime
Minister. This case was used as the reasoning behind
PLD 1998 SC 823
Now some jurists have interpreted the clause as protection from damages or libel and without a doubt if a parliamentarian is to say that the DCO of Lahore is an incompetent person whose corruption puts Zardari to Shame then the DCO cannot take the said parliamentarian to court. Infact this was held in
PLD 1998 SC 823 that members have unqualified freedom of speech where they can utter the most slanderous of statements whether in good faith or bad faith and the courts cant hold proceedings against them as they are protected. Now you may state that the landmark judgment is creating limitation yet providing expansive view? Indeed so, which makes it landmark since its is explaining exactly where the limits are and what a parliamentarian can do and what he cant. Where he can slanderous things in the parliament against any person but he cant do it against the constitutional organs of the state. Infact the court also held that a speech made cannot be subjected to suit for damages or recovery or defamation not it can be the basis to furnish for initiating criminal prosecution for defamation. So No section 500 of the PPC for a parliamentarian aka punishment for defamation.
Infact the problem comes when the acts leave the constituent acts or the assembly acted beyond its constitutional domain or a member left the constitutional limits like i said above can they talk against Islam in the parliament? Can they go against the objectives resolution or the preamble and declare Pakistan should not be a federation or even a parliamentary system? No. That would be leaving the domain of the constitutional limit and would be not be considered as under immunity and this was held in
PLD 1958 SC 397 that such a proceeding could be come under perusal of the court through Constitutional Writ.
In
PLD 2014 SC 367 The court observed that politicians and other public figures having their say and a following amongst the public were expected to use ore decent and guarded language and had to be more careful in the maturity of the mind and wisdom in respect to various national institutions and to present themselves as role models for the society at large.
Now with the above we see that members have limitations and the courts have interpreted the section in a manner where in its official capacity the member enjoys vast immunity however within the limits of the constitutional nature of the act being committed and not if he leaves those limitation.
Now perusal of the section brings forth an interesting discovery and that is 'Subject to the Constitution and to the rules of procedure of
Majlis-e-Shoora (Parliament)' which means that these rules of procedure are extremely important and can further create limitations on the member but do these rules have constitutional authority to create such a powerful limit on a constitutional provision? Well Section 67 does empower the parliament to make such rules of business that govern their own proceedings but again does it have constitutional nature? Well this question was placed again in
PLD 2014 SC 131 where the court held that the said rules are made under Article 67 of the constitution and as such has the status of law deriving direct mandate from the constitution. So these rules are indeed constitutional in nature and can limit articles of the supreme document. So what do these rules say about the conduct of the member. That is covered by
Section 31 of the rules and procedures and i shall bring it as such
31.Conduct to be observed while speaking.-
(1) The subject matter of every speech shall be relevant to the matter before the Assembly.
(2)Except with the permission of the speaker, a member may not read his speech but may refresh his memory by reference to his notes.
(3)A member while speaking shall not -
(a) discuss any matter which is sub-judice;
(b) reflect upon the President in his personal capacity:
Provided that nothing in this clause shall preclude any reference, subject to the provisions of the Constitution, to the President in relation to any act done by him in his
official capacity;
(c) discuss the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties;
(d) make a personal charge against a member, Minister or the holder of a public office, except in so far as it may be relevant in regard to the matter before the Assembly;
(e) use his right of speech for the purpose of wilfully and persistently obstructing the business of the Assembly;
(f) use offensive expressions about the conduct of proceedings in the joint sitting, National Assembly,
Senate or a Provincial Assembly or a Committee or Sub-Committee;
(g) un-necessarily cast reflection on the conduct of any person who cannot defend himself before the Assembly;
(h) reflect on any determination of the Assembly except on a rescission motion;
(i) use the President's name for the purpose of influencing the debate; or
(j) utter treasonable, seditious or defamatory words or make use of offensive or un-parliamentary expression.
Explanation.- In this clause, "un-parliamentary expression" means any expression which imputes false motives to a member or charges him with falsehood or is couched in abusive language.
Now here we see the limitations imposed by the trichotomy of power upon the member and we also see that in Subsection 3 Clause J that a member cannot utter treasonous and seditious words or defamatory words. Coming to defamation then, the court has interpreted that no defamation can be filed yet here he is restricted from defamation. The explanation explains that he cannot utter defamatory words against another member. The limitation is again in the trichotomy since the legislative is also part of the trichotomy thus a member cannot abuse the courts (Judicature), the President ( Executive) and the parliament or parliamentarian ( Legislative). The courts interpreted it this way.
So there is the legal interpretation of the said Article by our courts. The immunity is not expansive but is largely limited by the constitution and it is in the constitution that we see the objectives resolution, the trichotomy and the preamble so constitution is the limit for the member.
So the question rise is whether Ayaz sadiq in his statement said anything treasonous or seditious or acted outside the purview of the constitution. Personally i dont think the courts will see it that way but ofcourse each will have his own opinion on that,
@Jungibaaz @niaz @PDF @Arsalan @WAJsal @AgNoStiC MuSliM if you guys are interested in the question
