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NEWS ANALYSIS: Immunity of MPs

New HC verdict sparks debate

Shakhawat Liton
A latest High Court verdict has opened a window for debate overthe privileges of parliament and its members.
The HC on Monday observed, "...The limit of privileges depends upon the interpretation of article 78, which is in the exclusive domain of the Supreme Court."
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Article 78 of the constitution deals with the privileges and immunities of parliament and its members. Section (3) of the article says a member of parliament shall not be liable to proceedings in any court in respect of anything said, or any vote given, by him in parliament or in any committee thereof.
The HC itself in a 1999 verdict announced: "The immunity under article 78 (3) of the constitution is wide, absolute and unqualified and cannot be cur-
tailed in any manner and no court including the Supreme Court can take any legal proceedings against a member of parliament for anything he says in parliament during the course of business of parliament."
When his attention was drawn to the two verdicts, noted jurist Shahdeen Malik said the law settled by the previous verdict has become unsettled because of the differing interpretations of the two verdicts.
"Hence, it may need to be settled by a larger bench of
the High Court or by the Appellate Division," Malik told The Daily Star yesterday.
The HC delivered the latest verdict on a ruling by Speaker Abdul Hamid.
On June 18, the Speaker said HC judge AHM Shamsuddin Choudhury Manik had violated the constitution by making "derogatory remarks” about the Jatiya Sangsad and the Speaker.
During a court hearing on June 5, Justice Manik observed that the Speaker had committed an offence tantamount to sedition by
commenting in parliament on an HC order. He also said the Speaker was completely ignorant of the apex court and the constitution.
Hamid on May 29 told the House that courts were neutral and independent. However, it looked odd when they took quick decisions to resolve their own problems while people waited for years to get justice.
The Speaker had also said at the time that if people were aggrieved at court verdicts, the day would come when they would stand against the courts. "Likewise, if the government becomes autocratic, people will resist it and there are numerous instances of it.”
He made the remarks following Awami League lawmaker Shahriar Alam's statement on the HC order that the Supreme Court be handed over its land that was under the control of the Roads and Highways Department.
The HC on July 24 disposed of a writ petition that challenged the legality of the Speaker's ruling, and said it would make some observations on the issue later.
According to the HC's observations released on Monday, the Supreme Court is vested with the power and duty to oversee that no public functionary oversteps the limit set by the constitution.
"The limit of privileges depends upon interpretation of article 78, which is in the exclusive domain of the Supreme Court. Parliament cannot claim to be the final arbiter of its privileges," it said.
In a verdict in 1999, the HC gave a differing verdict. A contempt petition was filed against the then home minister Mohammad Nasim for his statements in parliament accusing" the higher courts" of patronising terrorists by granting them bail indiscriminately.
While disposing of the petition, the HC said: "The statements as appearing in the newspapers ... prima 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 wide, absolute and unqualified ....,” theHC stated, rejecting summarily the contempt petition.
In another case in 1993, the High Court rejected a contempt of court petition against the then information minister Nazmul Huda for his remarks about the judiciary in parliament, upholding the immunity of the MPs and the House.
The HC's latest verdict, however, did not mention any reference to the previous two verdicts.
WHAT THE CONSTITUTION SAYS
78. (1) The validity of the proceedings in parliament shall not be questioned in any court.
(2) A member or officer of parliament in whom powers are vested for the regulation of procedure, the conduct of business or the maintenance of order in parliament, shall not in relation to the exercise by him of any such powers be subject to the jurisdiction of any court.
(3) A member of parliament shall not be liable to proceedings in any court in respect of anything said, or any vote given, by him in parliament or in any committee thereof.
(4) A person shall not be liable to proceedings in any court in respect of the publication by or under the authority of parliament of any report, paper, vote or proceeding.
(5) Subject to this article, the privileges of parliament and of its committees and members may be determined by act of parliament.