THE law of parliamentary privileges, alike in Pakistan and India, is a standing threat to press freedom. It is vague and uncodified because, by a devious route, it rests still on archaic British law which is uncodified.This writer is unable to opine on its enforcement by the legislatures and the courts in Pakistan. In India, the conduct of the legislatures, central and state, has been repressive and the judiciary’s rulings are unsatisfactory. The constitutional provisions in both countries were not inherited but were crafted by politicians.

Article 66 (1) of the Pakistani constitution guarantees “freedom of speech” in parliament and immunity from legal proceedings in respect of anything said there. Clause 2 says “in other respects the powers, immunities and privileges” of parliament and its members “shall be such as may from time to time be defined by law and until so defined, shall be such as were, before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members”.

This had its counterpart in Article 56 of the democratic constitution of 1956. It guaranteed freedom of speech in the House and immunity from legal proceedings in respect of statements made there. However, Clause 5 said “subject to this article, the privileges of the National Assembly, the Committees and members thereof … may be determined by Act of Parliament”. Since Article 224 continued existing laws, the provisions of the Constituent Assembly (Proceedings and Privileges) Act, 1955 continued in force and, by virtue of Article 66 (1) of the present constitution, continue still in force.

Section 4 of the act ensured freedom of speech and immunity from courts’ intervention. Clause 5 read thus: “In other respects, the powers, privileges and immunities of the Assembly, and of the members and committees thereof, shall be those of the Commons’ House of Parliament of the United Kingdom of Great Britain and Northern Ireland and of its members and committees at the date of commencement of this Act.” It was July 28, 1955.

Thus, tracing the pedigree of Article 66 (2) of the present Pakistani constitution yields the unflattering result that the privileges of the Majlis-i-Shura of Pakistan are those of the Britain’s House of Commons frozen as on July 28, 1955.

The law in India is identically unflattering. For Section 4 of Pakistan’s Act of 1955 is almost identical to Clause 3 of Article 105 of the Indian constitution. Both conveniently adopted the privileges of the House of Commons as they were on a particular date. India, as on Jan 26, 1950, when its constitution came into force; Pakistan as on July 28, 1955 when that act came into force.In 1976, the offending reference to British law was deleted in India for cosmetic reasons, but without altering thesubstance. The privileges were to be those “at the commencement” of the amendment. In 1978, came another amendment which repeated “shall be those … immediately before” this amendment; that is as in 1976-77, which, in turn, asked the citizen to consult the law between 1950-76; in short the privileges of the House of Commons. That is the law in Pakistan and India in 2011.

In India, the legislatures, central and state, cocked a snook at the constitutional mandate in Article 105 (3) for codification of the privileges “shall be such as may from time to time be defined by Parliament, and until so defined, shall be those of the House of Commons. …” The framers of the constitution explicitly assured the constituent assembly that that this was a temporary measure and a code was envisaged. It was not enacted because a code of privileges would, like any other law, be subject to fundamental rights.

In 1958, the Supreme Court of India ruled, with disastrous effect, that since in Britain the privileges were not subject to the fundamental rights, incorporation of British law by India had the same effect despite the fundamental rights embodied in the constitution.

In 1964, the UP assembly ordered the arrest of two judges of the Allahabad High Court because they had granted bail to a man whom the assembly had sent to prison for contempt of the House. His advocate was also ordered to be arrested. A full bench of 28 judges of the court granted interim stay.

The president averted an ugly situation by seeking the Supreme Court’s advisory opinion. The court now ruled that it alone could rule on the ambit of the privileges; that the two fundamental rights to personal liberty and to move the Supreme Court for the enforcement of any fundamental right are not subject to the privileges; and while irregularities in legislative proceedings are exempt from judicial scrutiny, illegalities are not. But, for reasons hard to appreciate, the court refused torule on the issue of whether the privileges are subject to the citizen’s fundamental right to freedom of speech and expression.

Article 105, the source of mischief, was modelled on Section 49 of the Australian constitution. But Australia has codified the privileges in the Parliamentary Privileges Act 1987. It abolished “contempt by defamation” as also the power to expel members. In 1999, a joint committee of both Houses of the British parliament on parliamentary privilege recommended that “contempt of Parliament should be codified in statute” and its “power to imprison persons whether members or not, who are in contempt of Parliament should be abolished”; bar misconduct within the precincts of parliament.

In actual practice, penal powers are very rarely used. Bernard Levin wrote in The Times (Dec 9, 1975) of “the curious passion the House of Commons seems to have for making a collective ass of itself”. In India it is unthinkable that anyone making such remarks about parliament or a state legislature would escape punishment. The Times (London) published a cartoon on April 20, 1988 whose caption read “MPs debate random breath testing”. The entire front bench had MPs in drunken stupor with empty bottles and glasses on the floor. Some back benchers, holding aloft filled wine glasses, said “I declare an interest”.

The writer is an author and a lawyer.