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|Volume 11 |Issue 24| June 15, 2012 ||
Rules of the Game
Does the Supreme Court or any of its judges have the jurisdiction to proceed against a Member of Parliament for his/her comments made in the House? Did High Court Judge AHM Shamsuddin Choudhury Manik cross his jurisdiction by blasting Speaker Abdul Hamid on June 5 for the latter's recent remarks in the Parliament? Did he interfere in the functions of Parliament and undermine its dignity? Was the outburst of MPs against Justice Manik justified?
In their book “Practice and Procedure of Parliament”, parliamentary affairs experts MN Kaul and SL Shakdher write that a member is subject only to the discipline of the House itself and no proceedings, civil or criminal, can be instituted against him in any court in respect of the same for his speech and action in Parliament,.”
Absolute privilege has been given in respect to anything said or any vote given in Parliament or a committee thereof so that members do not feel afraid to speak out their mind and freely express their views, reads the Practice and Procedure of Parliament.
It further states that members are, therefore, completely protected from any proceedings in any court even though the words uttered by them in the House may be false and malicious to their knowledge.
“Though a speech delivered by a member in the House may amount to contempt of court, no action can be taken against him in a court of law as speeches made in the House are privileged. Anything said or done in the House is a matter to be dealt with by the House itself.”
The duo in their book analysed Indian constitutional provisions and some verdicts delivered by the Indian Supreme Court on the parliamentary privileges and also practice and procedure in other parliaments including British Parliament, which is considered mother of all parliaments.
Like other parliaments in the world, our national parliament also enjoys almost the same constitutional privileges and immunity relating to their remarks in the parliament. The High Court itself, in two previous verdicts, has upheld the immunity of MPs by rejecting contempt of court petitions against two ministers over their comments in the House.
According to the verdicts delivered in 1993 and 1999, an MP enjoys unqualified and absolute immunity regarding any speech made by him in parliament and the court has no jurisdiction to proceed against him for his speech. And the said immunity can in no way be curtailed in any manner.
Upholding the immunity guaranteed by Article 78 of the constitution, the High Court rejected two contempt petitions filed against the then information minister Nazmul Huda in 1993 and the then Home Minister Mohammad Nasim in 1999 for their remarks in parliament.
According to reports published by different newspapers on September 7, 1999, the then Home Minister Nasim on September 6 accused "the higher courts" of patronising terrorists by indiscriminately granting them bail.
"Sitting on a high pedestal to ensure justice in society, they (judges) are patronising terrorism," he told the House during a question-answer session.
On May 11, 1993, the then information minister Huda made a speech in parliament expressing his dissatisfaction at the bail granted to an Awami League MP by the High Court: "My apprehension is -- money makes everything possible in this country."
While disposing of a contempt petition filed against Nasim, the High Court said: "The statements as appearing in the newspapers…prime facie show that they are objectionable and contemptuous, but in the instant case that cannot be a ground for prosecution of a Member of Parliament under law of Contempt of Court for the reasons discussed above."
"We have given our anxious consideration over the matter and we are of the view that there is no merit in this application as the immunity under Article 78 (3) of the Constitution is absolute and unqualified….," the HC stated, summarily rejecting the contempt petition.
The HC, however, stated that "… had these statements been made outside parliament the situation would have been otherwise and it would have been considered in a different way."
Former attorney general Mahmudul Islam in his book, "Constitutional Law of Bangladesh", analyses the constitutional provisions and writes: "A person aggrieved by a speech of a Member of Parliament is without any remedy in court. If a member exceeds the limit imposed on this freedom by the Constitution or the rules of procedure of Parliament, he can be dealt with by the Speaker, but not by the Court."
What will happen if a lawmaker criticises the judicial functions of a Supreme Court judge? Article 94 (4) of the constitution notes that subject to the provisions of this constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.
"In view of the provision of Article 94 (4) of the Constitution, a member of Parliament cannot criticise a Judge of the Supreme Court in respect of his judicial functions in Parliament, but if he transgresses this limit he cannot be dealt with by the court of contempt," Mahmudul writes, citing the High Court verdict in a contempt petition filed against Nasim for his remarks in parliament about the judiciary in 1999.
But on June 5 nothing could prevent Justice Manik from launching a blistering attack on Speaker Abdul Hamid for the latter's remarks made in the parliament about judiciary.
Justice Manik cited some books including the Practice and Procedure of Parliament by Kaul and Shakdher to blast the Speaker. But he might have forgotten what Kaul and Shakdher wrote about the MPs' immunity.
Citing from the books—Practice and Procedure of Parliament by Kaul and Shakdher; Parliamentary Practice by Erskine May; Parliament Today by Andrew Adonis, Justice Manik said that the Speaker could not take part in any debate, motion and discussion on anything, let alone a sub-judice matter.
“It was utter ignorance of the Speaker about the Supreme Court and the constitution and a total abuse of parliamentary privilege," he said. He added that the Speaker had made the outrageous comments against the SC perhaps considering that this court could not issue any contempt of court rule against him. “We are infuriated, dismayed and amassed over the comments of the Speaker.”
Abdul Hamid on May 29 told the House that the courts were neutral and independent, but it looked odd when they took quick decisions to solve their own problems while people had to wait years for justice. The remarks came in relation to an HC order that said that the Supreme Court must be handed over its land, currently under the control of the Roads and Highways Department.
If people were aggrieved at court verdicts, the day would come when they would stand against the courts, Hamid said following a statement by Awami League lawmaker Shahriar Alam. “Likewise, if the government becomes autocratic, people will resist it and there are numerous instances of such," he said.
But Justice Manik's view is that the Speaker provoked people against the apex court and the government by making such comments and the act amounted to sedition.
In launching the attack on the Speaker, Justice Manik might have overlooked other crucial aspects– constitutional immunity of MPs relating to their speeches in Parliament. He might have forgotten that he had no jurisdiction to blast the Speaker centering the latter's remarks in parliament. The Constitution does not allow Justice Manik to do so. But he didn't care about anything. He also ignored the requests of some jurists on that day in the court. Advocate Abdul Matin Khasru MP, advocate Nurul Islam Sujan MP, advocate Anisul Huq and Additional Attorney General MK Rahman were finally able to refrain Justice Manik from passing any directives against the Speaker.
They said that the Speaker was the symbol of an institution, and if the court passed any order against the Speaker, a distance would be created between the judiciary and the legislative.
Infuriated by his remarks, the ruling alliance MPs on the same day, in the parliament, accused Justice Manik of violation of the constitution by making “derogatory remarks” about the Speaker of the Jatiya Sangsad. They questioned Justice Manik's mental health and demanded that the president ask the chief justice to constitute a Supreme Judicial Council for removing the judge.
MPs were assured that the Speaker would give his ruling on the issue. Now the question is– will the Speaker's ruling be able to resolve the prevailing tensed tension?
The writer is Senior Reporter, The Daily Star.
Copyright (R) thedailystar.net 2012