ISLAMABAD: Prime Minister Nawaz Sharif’s counsel told the Supreme Court on Monday that his client’s speech on the floor of the National Assembly was protected by the Constitution.

“Prime Minister Nawaz Sharif maintains that he never misstated, deceived or misrepresented in his May 16, 2016, overview [of his] family business on the floor of the National Assembly,” senior counsel Makhdoom Ali Khan argued before a five-judge Supreme Court bench that is hearing the Panamagate case.

Whether the apex court could look at all the speeches made in parliament had to be examined in view of the provisions of Article 66, which protected freedom of speech in the house, the counsel emphasised.

In case this privilege was violated, then every member of parliament would hesitate before saying anything in the house, the counsel feared, adding that it would then have a chilling effect, freezing free speech and obstructing parliamentary business.

Article 66 of the Constitution deals with the privileges of members and provides complete freedom of speech in parliament and no member can be liable to any proceedings in any court in respect of anything said or any vote given by him in the house.

Argument by Sharif’s lawyer questioned by SC judges

But Justice Ijazul Ahsan, a member of the bench, recalled that the prime minister himself gave away this immunity by stating in his speech that he did not need any constitutional or legal protection.

And Justice Sheikh Azmat Saeed wondered whether this privilege could be waived.

“The privilege is that of the parliament and only the house can waive it,” retorted the counsel.

Justice Asif Saeed Khosa, who heads the bench, observed that a member could be prosecuted or subjected to legal proceedings for speaking against the judiciary in parliament and wondered about the scope of the protection provided to any member by the Constitution.

“Though we cannot adjudicate upon the speech in view of Article 66, can the speech be used if this can prove helpful as supporting material in terms of any property?” he asked.

But the PM’s counsel argued that Article 68 clearly imposed a restriction on members of parliament from discussing anything relating to the conduct of a superior court judge in the discharge of his duties, adding that the courts enjoyed the authority under Article 204 to hold any member in contempt for making statements that might bring the judiciary into ridicule or disrespect.

The Supreme Court was hearing a most important case in which it was not making a factual inquiry, but had to deal with the matter only in accordance with the law, Makhdoom Ali Khan argued.

Even if the court rejected the factual statement made by the prime minister and took the view that he was lying in parliament, it could not do anything since Article 66 would come into play.

“Even if the court ignored the speech in parliament, what about the prime minister’s April 5, 2016, address to the nation?” asked Justice Ejaz Afzal Khan.

During Monday’s proceedings, Justice Khosa observed that Article 62 of the Cons­titution, which deals with the qualification of members of parliament, was evolving on a case-to-case basis, since no typical pattern existed for the resolution of controversies.

Sometimes it developed through cases of dual nationality and sometimes it grew through the fake degrees, where the members were disqualified by the Supreme Court, the judge observed.

The counsel argued that the superior courts had repeatedly held that they would not use their authority in constitutional jurisdiction to disqualify elected representatives of the people. It was for this reason that Justice Ijazul Ahsan, as a high court judge, had allowed then prime minister Raja Pervez Ashraf to contest elections, despite the fact that there were damning findings against him in the Rental Power Producers (RPP) case.

The counsel then regretted that Imran Khan wanted the prime minister’s disqualification because, according to him he was not sadiq and ameen (righteous and honest). But when Dr Sher Afghan Khan Niazi and Dr Farooq Sattar filed references against him before the Election Commission of Pakistan (ECP) in 2007, he took the position that the requirement of being sadiq and ameen did not apply to elected members.

JI petition

On Monday, Jamaat-i-Islami chief Sirajul Haq also submitted an amended petition before the Supreme Court in the Panamagate case by directly making the prime minister respondent and seeking his disqualification under Article 62(1f) of the Constitution.

The petition, moved through Advocate Taufiq Asif, pleaded that the prime minister had lost his eligibility as member of the National Assembly under Article 62(1 f) because the information in the Panama Papers in the shape of four London flats was never mentioned by him in his nomination papers in the 2013 elections, income tax statements and wealth tax statements.

Published in Dawn January 17th, 2017