That the Panamagate case is a major one can be gauged by the number of side issues it throws up. One has been the immunity the Prime Minister enjoys for words uttered in Parliament. Actually, it has not been made clear that he enjoyed two different immunities, one as a legislator, and the other as a member of the executive, in deed of which he is the head. Both have defenders, but they exist for separate purposes, and while the former seems to protect what he said in Parliament to the National Assembly, the latter may not.
His statement assumes importance because it may well be the piece of evidence most important for the Pakistan Tehrik-i-Insaf in its campaign to force Prime Minister Mian Nawaz Sharif out of office because of the naming of his children in the Panama Leaks. The PTI claims that Mian Nawazs speech in Parliament contains contradictions with the statements of his children, which have been submitted to the court and thus constitute evidence. However, before that, the speech itself has to be admitted by Supreme Court as constituting evidence.
Speech, even if an accurate record is available, has to meet certain standards before it can be admitted to the Supreme Court as evidence. The Supreme Court does not have a separate standard of evidence, but has the same standard as any court. However, speech in Parliament is protected, not just in Pakistan, but in legislatures worldwide, to allow members freedom to say what they want. This freedom is even greater than that allowed by constitutions to ordinary citizens.
Indeed, legislators are not allowed to take this enhanced freedom out of their chamber, and once they leave, they revert to the ordinary freedom of the citizen they represent. In other words, they become subject to the penalties associated with assailing the repute of another; criminal libel, which entails criminal prosecution and the risk of a jail sentence; or slander or libel, which entails a civil suit, and the risk of having to pay damages. Indeed, that is why someone who thinks he has been slandered by a legislator in his chamber, may dare that legislator to repeat himself outside of the House. That is an acknowledgement that he will be unable to use establish the slander if it has been uttered in the House, because no court will accept any speech in Parliament as evidence. On the other hand, if the member repeats his allegations outside the House, the victim will be able to establish the fact of the speech, as well as its content, by the regular rules of evidence.
It has been pointed out that this licence has been restricted in the case of judges of the superior judiciary. However, though the judges have been protected by the Constitution, they have not been given jurisdiction, and the only restraint on members is that the presiding officer may ask the member to stop speaking. There is no further penalty. A member who keeps on slandering a judge might find himself thrown out of the House forcibly, but that would be because of disorderly conduct and refusal to obey the Speaker or (in the case of the Senate) Chairman, not because of the libel.
There is the question of the status of proceedings, and whether they can be submitted as evidence to a court. For example, can anyone submit to a court a statement by the education minister about the number of schools in the province, made in the provincial assembly? As in the Panamagate case, the statement on the floor involves a question of evidence, and there is no question of adjudication of proceedings.
There is an element of adjudication in the examination by the Court of the question of whether or not the statement formed part of the agenda. The statement came as a personal explanation. Whether constituted a point of personal explanation or not depends on the ruling of the Speaker. Actually, if a member says he is speaking on a point of personal explanation, and the Speaker does not rule it out, it will be assumed to be a valid point of personal explanation. Whatever the ruling, or the silence, courts normally do not indulge in second-guessing the Speaker of an Assembly, or the Chairman of the Senate.
Mian Nawaz Sharif is not just a member of the National Assembly, but is also the Prime Minister. That position he has reached by being elected to the office by that very same Assembly, and that confers on him certain powers, as well as the immunity extended for acts which are done or purported to have been done in the exercise of his functions. This is not like the immunity granted to a President or Governor, who also is given immunity from arrest, as well as both civil and criminal proceedings. The Prime Ministers exemption is meant to save him personally from litigation for his official actions. This is supposed to ensure that the Prime Minister does what his job requires him to do, without fear of litigation. It is within historical memory that, during the Great Irish Potato Famine of the nineteenth century, a coroners jury, sitting on victim, brought in a verdict of murder against Lord John Russell, ‘Prime Minister of England, even though no British government had anything to do with the arrival of the potato blight behind the destruction of the potato crop that caused the famine, or the decisions that had made the potato the Irish staple. That is the provision that prevented Mian Nawaz (or any other PM) from being prosecuted for the deaths caused by flood devastation, or any of the other ills that have afflicted the country while he has been in office.
The immunity of the President extends to any criminal proceedings against him being postponed to when he relinquishes the office, and to anyone wishing to bring a civil suit having to serve him warning of such intention, presumably to give him the opportunity of settling the matter before it goes to court. However, this immunity of the President (and his personal representatives, the Governors) does not extend to the Prime Minister or others, and if the PM faces any liability, civil or criminal, in any court, he will be subject to it as much as any private citizen is.
If he is to be arrested, the police or other arresting agency has to intimate the Speaker of the National Assembly, but again that is not a privilege limited to him, but to all MNAs. It is meant to protect free speech, because one means of preventing a member from making a speech exposing the government would be to arrest him before he makes it, assuming that it knows his intentions.
It should be noted that the immunity has the sanction of the popular verdict. If the Prime Minister is caught committing a purported crime, he will have to face the electorate for any renewal of his mandate. It should be noted that even if Mian Nawaz is not found guilty of wrongdoing by the Supreme Court, his mandate can only be renewed by an electorate that has been observing the case. Before that bar of public opinion, impressions count, even false impressions, not convictions or their absence.