PM’s parliament speech beyond SC remit: counsel

Justice Khosa says the speech can be used as supportive material in any case

ISLAMABAD: Prime Minister Nawaz Sharif’s counsel has contended that the Supreme Court cannot adjudicate on the PM’s speech in parliament, as the parliamentary proceedings cannot be challenged at any forum under Article 66 of the Constitution.

Article 66 says: “Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora [parliament], there shall be freedom of speech in the 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 the parliament.”



Resuming his arguments on Monday on the 9th hearing of the Panamagate case, the PM’s counsel Makhdoom Ali Khan contended before the five-judge SC bench that there is a constitutional bar on the superior courts to give a declaration on the parliamentarians’ speeches in parliament.

“Firstly, every word in the PM’s speech is true as there is no lie,” he said, adding that the PM did not deceive or misrepresent. “However, if it is presumed the PM lied, even then the court cannot give declaration due to Article 66, which protects the freedom of speech in parliament,” he said.

He said if that privilege was violated then every lawmaker would hesitate in saying anything in parliament, a condition that would hamper the freedom of speech and the parliamentary business.

However, Justice Ijaz Ul Ahsan observed that at first the counsel argued that the PM did not lie but now he was claiming constitutional privilege. “Once it was said that the PM would not seek constitutional immunity in Panamagate case,” he said.

Upon this, Justice Ejaz Afzal Khan remarked that probably the PM was referring to the Article 248 of the Constitution in his statement about not claiming immunity. He also asked whether the PM’s speech could be made the basis of proceedings in Panama leaks case in view of Article 66 of the Constitution.

However, Justice Asif Saeed Khosa – who heads the bench – observed that the issue before the SC was not adjudicating on the PM’s speech but his family’s properties in London and the petitioner has just referred to the premier’s speech in support of his arguments.

Justice Khosa also remarked that the speech in parliament can be used as a supportive material in any case. He, however, questioned whether the speech could be used as supportive evidence in view of Article 151 of Qanoon-i- Shahadat Act 1984.

Justice Azmat Saeed Sheikh observed that Article 66 starts with ‘subject to the Constitution’ and Article 62 is also included in the Constitution. “Will a parliamentarian face penal consequences, if he makes a false statement in parliament?” he asked.

He said the apex court has jurisdiction to disqualify the parliamentarians under Article184 (3) of the Constitution. “But can we disqualify the PM on the basis of the available material?” the justice further asked.

Justice Khosa observed that law was evolving on Articles 62 and 63 in view of the SC’s judgments as there was no set precedent in this regard. However, the court can neither ignore the past nor give judgment which changes the whole scheme of the Constitution, he observed.

Meanwhile, the PM’s counsel also cited a 10-year-old judgment by the Election Commission of Pakistan (ECP). He said the petitioner Imran Khan wants PM Nawaz Sharif to be disqualified because, according to Imran, he is not Sadiq [truthful] and Ameen [trustworthy].

“But when Dr Sher Afgan Khan Niazi and Dr Farooq Sattar filed references against him before the ECP, he took the position that the requirement of being ‘Sadiq’ and ‘Ameen’ did not apply to elected members.

“According to Imran Khan, it applies only to candidates contesting elections. Imran also did not dispute the correctness of the paternity judgment of the California Supreme Court but contended that it was inadmissible,” said the PM’s counsel.

“Imran Khan applies double standards. When the test of ‘Sadiq’ and ‘Ameen’ was sought to be applied to him, he contended that it was not applicable on him but he now wants the same standard to be applied to the PM,” he said.

The counsel said the superior courts have repeatedly held that they will not use their authority in constitutional jurisdiction to disqualify the elected representatives of the people.



“It is for this reason that [a member of the bench] Justice Ijaz Ul Ahsan allowed Raja Parvez Ashraf to contest elections as the Lahore High Court judge in spite of the fact that there were damning findings against him in rental power case,” he said.

The counsel said the SC has disqualified elected candidates in exercise of its jurisdiction under Article 184 (3) of the Constitution in former PM Yousuf Raza Gilani’s and the dual nationality cases. “Gilani was disqualified because he was already convicted and had failed to file an appeal,” he said.

Meanwhile, Jamaat-e-Islami (JI) has filed an amended petition in top court seeking disqualification of PM Nawaz Sharif. In its earlier petition regarding Panamagate case, the JI had not made PM a party.

The petition says the PM purchased flats in London by allegedly evading tax. It further contends that PM concealed the properties and flats deliberately and is, therefore, no more ‘Sadiq’ and ‘Ameen’.

Published in The Express Tribune, January 17^th, 2017.