ISLAMABAD - The Supreme Court on Tuesday said that parliament is not an island where the members can do and say whatever they like, and the prime minister doesn’t have the kind of immunity to prosecution that the president and the governors enjoy.
“Committing a crime is not performance of official duty and the parliament is not an island where you can do whatever you want,” Justice Asif Saeed Khan Khosa remarked in response to the assertion by PM’s counsel that the prime minister cannot be adjudicated on the basis of his speeches in Parliament.
Counsel Makhdoom Ali Khan, who continued his arguments on Tuesday, cited several judgments to establish his point.
Representing Prime Minister Nawaz Sharif, he argued that the PM was not claiming immunity under Article 248, but claimed that the premier had the same right of freedom of speech as conferred upon every member of national and the provincial assemblies under Article 66.
But Justice Khosa led five member bench observed that the privilege of lawmakers to say anything in Parliament without being held accountable was not absolute under Article 66 of the Constitution. It said that obedience to law and constitution is the violable obligation of every citizen.
Justice Sheikh Azmat Saeed said the immunity and privilege to the prime minister is not absolute, it is subject to the constitution. The PM does not enjoy the kind of total immunity enjoyed by the president and the governors under Article 248 of Constitution as the privilege of parliamentarians to say something in Parliament is not absolute under Article 66.
The court observed that ex-PM Yousaf Raza Gilani and former PM Raja Pervaiz also did not seek immunity under Article 248.
At the start of the proceedings, Justice Khosa said: “We have two cases - one is from Britain and the other is from the Privy Council 2004. He explained that the British judgment was regarding conduct of the member in the New Zealand parliament. The member used defamatory speech against another member. When he came out of the parliament he told the journalists that whatever he had stated in the parliament he stood by it. The member against whom the defamatory remarks were passed sued him over defamation. The court held that the parliamentary statement could be used as evidence.
Referring the Privy Council judgment, Justice Khosa said it was ‘false bills’. “Some members in view of this resigned, but others were adamant and said they have privileges and they could not be summoned by the court. The council judgment said there was no parliamentary privilege to anyone against corruption.
During the hearing, Makhdoom referred the judgments of European Human Right convention, USA and UK courts to argue that the parliamentarians have privilege of freedom of speech. Justice Khosa told him he did not need to refer the judgments from all over the world.
The counsel insisted 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,” Makhdoom said.
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.
Justice Khosa said, “We agree that the parliamentarians have freedom of speech and they can debate in the Parliament” and there should be places like Hyde Park in London where even ordinary citizens could go and debate on different issues.
“They [parliamentarians do] have the right to debate in the Parliament. But it [PM’s speech] is not the debate in the regular proceeding; rather, the PM had volunteered himself to make statement on what was said outside the parliament.”
The judge however said no body was prosecuting the PM on the basis of his speech.
Makhdoom said that the petitioners have referred to the speech and on that basis saying the PM is not honest and truthful.
He said another allegation against his client is the tax evasion, and the petitioners have raised the question of dependency of Maryam Safdar. He said the children of the PM, Maryam, Hussain Nawaz and Hassan Nawaz, are represented by separate lawyer so he would not argue on their behalf.
The counsel said the PM could not be disqualified under Article 63(1)(o). He argued that the PM in his statement stated that they had obtained loan to set up factory in Jeddah and from its sale proceeds his sons started business. There is nothing false that attaches disqualification under Article 62(1)(F) of Constitution.
Justice Ijaz ul Ahsan observed that Hussain Nawaz in an interview said he had established the business and it was in his own name. He said that the petitioner says that the PM’s speech is in contradiction with the material provided in the court. Also, they claim that the PM’s own statements and that of his children were contradictory.
He noted that the PM’s first statement was address to nation while the second one comprised of his speech to the parliament.
The lawyer said that the allegation against the PM is that he had received $1.9 million from his son Hussain Nawaz and out of that gifted amount he gifted Rs31,700,00 to Maryam Safdar and Rs19,459,440 to his son Hassan Nawaz but not through banking channel. Thus, according to the petitioner, the PM has committed tax evasion, gave wrong declaration of assets, withhold information on material assets. He claimed that as a matter of fact all the taxes had been paid and they have acknowledgment receipts.
Makhdoom Khan said there was contradiction in the prayers of the PTI as the Prayer No. 1 seeks that Prime Minister Nawaz, Capt (r) Muhammad Safdar and Finance Minister Ishaq Dar (Respondents No. 1, 9 and 10) be disqualified as Members of the National Assembly, while Prayer No. 6 says that the FBR be directed to probe and minutely scrutinise the tax returns and assets declarations of the respondents and the entire Sharif family. He said that if the Prayer No. 6 is accepted then the Prayer No. 1 would be knocked down.
The counsel of PM Nawaz said according to the Wealth Tax Act even if the proceeding is pending before the Revenue Officer then had lapsed after four years, the period for the expiration for assessment of wealth will be made as per section 17 and 17A of the Act.
He said the Wealth Tax Act, 1963, was repealed in 2003, adding none of the respondents including the PM and his children are exposed to wealth tax liability. He said after 14 years, they have come to the court to seek wealth tax assessment of the respondents.
Makhdoom questioned who had prevented the petitioners for placing the definite information about the wealth tax of the respondent to reopen the case.
Justice Khosa remarked then it means it was a thing of the past and a closed transaction. Makhdoom replied yes. He said The PM could not be disqualified under Article 63(1)(O) of constitution as the default and dues have to be adjudicated by the competent forum.
He said if the apex court wanted to reopen the case of wealth assessment then it should order wealth assessment of all the citizens of Pakistan and not just the prime minister.
The hearing was adjourned until today (Wednesday).