Parliamentary Privilege

Recent speculation lurks around the Prime Minister’s role in purchase of the now infamous Park Lane — London flats, leaving confusion amongst the masses about his recent plea of Parliamentary Privilege invoked under article 66 of the Constitution of Pakistan, 1973, which reads:

“66. Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora [Parliament] there shall be freedom of speech in Majlis-e-Shoora and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Majlis-e-Shoora, and no person shall be so liable in respect of the publication by or under the authority of Majlis-e-Shoora of any report, paper, votes or proceedings” (emphasis supplied).

Parliamentary Privilege originated in the United Kingdom (from whom we derive much of our jurisprudence) following the Glorious Revolution to overcome a power struggle between Parliament and the reigning monarch, i.e. King Charles I. Keeping in mind those days saw laws implemented at the will of the King, parliamentarians needed some form of protection against any possible retaliation whilst debating laws imposed by the King, and hence Parliamentary Privilege was introduced vide article 9 of their Bill of Rights 1689. Such Privilege never was intended to grant parliamentarians any form of confessional or other immunity against crimes or wrongdoings committed in their personal capacity, which would be against the very essence and spirit of equity and justice. Subsequent findings throughout the years substantiate this position with several UK. parliamentarians having suffered the consequences. In the recent 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. In fact, a 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 cognisance of the House of Commons posed any bar to the jurisdiction of the Crown Court.



The word ‘Privilege’ does not give parliamentarians (including a Prime Minister) the prerogative to be better-off than average citizens or be unaccountable in a personal capacity, as that in itself would be contrary to guaranteed fundamental rights of equality under article 25 of our Constitution. ‘Privilege’ simply means immunity from prosecution (such as defamation suits) whilst discussing official parliamentary business (i.e. legislation) otherwise parliamentarians would not be able to legislate with freedom of speech and there would be potentially no end to possible legal action. Furthermore, Privilege must only be considered in matters pertaining to internal/official (and not personal) parliamentary proceedings conducted in a bona-fide manner within the realm of Constitutional boundaries else the Court is empowered to interfere, a principle enshrined in our jurisprudence for over half a century.

Our Constitution does not provide Parliamentarians any specific immunity against criminal actions as has been granted to the President and Governor(s) under article 248(2) of the Constitution, and where such express immunity is omitted it ought not to be read into the law. The only specific protection enjoyed by a Minister/Prime Minister is for official actions under powers of their office, which is obviously not the subject-at-hand and hence not relevant.

Access to information in all matters of public importance is another guaranteed Fundamental Right under Article 19A of our Constitution (subject to reasonable restriction, necessary for matters such as protection of state secrets, etc. but which restriction would not be applicable to the instant matter), and it would be incongruous if such information was not usable for dispensation of justice. Article 187(1) of the Constitution empowers the Supreme Court to issue any direction necessary for ensuring complete justice including production of any document, etc., thereby empowering the Court to summon and utilise whatever material they deem necessary for dispensation of justice. Keeping in mind the first line of article 66 “Subject to the Constitution”, the Constitution itself appears to contain clauses (mentioned above) which in my opinion negate Parliamentary Privilege in the given circumstances. Two key factors should be kept in mind: firstly the Constitution must be read as a whole and not in piecemeal, meaning enforcement of fundamental rights and the SC’s powers for dispensation of justice should not in any manner be abridged; Secondly, justice and accountability come before all else and therefore the veil of Privilege cannot be used in personal matters.

With all said and done it is the precise function of the Court to enforce, preserve, protect and defend the Constitution and ensure obedience to law, and hence it could not be fathomed that any such Privilege could hinder the Court from delivering proper justice.

Published in The Express Tribune, February 2^nd, 2017.

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