Daily Times

Shahbaz Sharif didn’t appear in the Accountability Court for arraignment on corruption charges because he was ill and busy in the Public Accounts Committee meeting at the same time. The judge was very rightly displeased and ordered his presence on another date. The ensuing issue is significant and remains rather difficult to answer. Does his presence in the National Assembly’s standing committee supersede his legal compulsion to attend a court summons? The man is in prison on the orders of the court but when he is ordered to be arraigned he gets away on the pretext of parliamentary commitment and that the Speaker has ordered his presence in the National Assembly. There is something grossly wrong here. Any sojourn in jail, be it remand or sentence, is divesting someone of his liberty which includes all activities including performance as a member of the legislature.

Now here is the thing: the rule of law, without a doubt, remains the grundnorm of a decent society’s legal system, which cannot be waylaid to uphold the non-existent supremacy of the parliament — as happens in Pakistan. Only Britain, has labeled its Parliament as supreme because of its conventions and because its constitution is unwritten.  In a written constitution the three state institutions — legislature, judiciary and executive — are all equal in their role and powers, which are clearly defined in the constitution. None is supreme.

Shahbaz Sharif is the Chairman of the National Assembly’s Public Accounts Committee about which there is no qualm as this is a purely democratic parliamentary practice. However, our parliament has somehow acquired this notion that the presence of a member is a must even if he is in jail as an accused. Simply put: the parliament ignores the criminal proceedings of the judicial system and demands the “production of the member” when he is incarcerated. The legal source or constitutional backing of this practice is unknown. Under what authority of law does the Speaker order the production of a jailed member, is unclear.

To say that the session of a House cannot effectively run in the absence of a suspect and he must appear in the House — even at the peril of creating a wedge between the two institutions — needs solid constitutional backing

Habeas corpus is a Latin phrase which translates in English as “that you have the body”. The Constitution and the law give powers to the court through a writ to order production of a person who is incarcerated. This ancient legal principal means under the common law that it is for the protection of personal liberty. By this writ, the court assumes control over the body of a prisoner so it can discharge him or her to freedom if no proper legal cause can be shown for detention. Habeas corpus secures release from any form of unlawful custody, whether decreed by the highest powers of the state or imposed by any other government agency.

Undoubtedly, the parliament is unfettered in devising its own rules and procedures and is generally not answerable to any other constitutional body, exactly like the judiciary.   But to say that the session of a House cannot effectively run in the absence of a accused and he must appear in the House — even at the peril of creating a wedge between the two institutions — needs solid constitutional backing. People elect their representatives to be in the parliament to make laws for their welfare. Surely, the voter doesn’t condone or overlook the criminal process because he knows that he himself is amenable to such treatment if he fell afoul of the law.

We are a parliamentary democracy and by practice follow the British parliament using a book of parliamentary practices authored by Erskine May. There is no precedence of the Speaker of the House of Commons ever ordering production of an imprisoned member. Shouldn’t a court order be obeyed by the Speaker when an accused is summoned by a court? The question gets more vital when a common man’s dream to see the rule of law upheld is watered down when an accused is protected by the legislature. There was a pernicious tradition in the old British army in India when camaraderie and espirit de corps took an ugly form in a battalion — the unit needed to alter records and falsely show one of its felon soldiers on duty, who had committed a crime while on furlough in his village and was to be protected from the criminal process. There is no parallel though but if the speaker is to uphold an unexplained convention of ordering an accused member to be produced in utter disregard and irreverence to the judicial process, then some nexus to the soldier’s conduct may, albeit wrongly, could be drawn.

The whole affair is so bizarre that the court that is to try Shahbaz Sharif finds a predicament where not only the proceedings can’t advance but also the case can become prejudicial, making it difficult for the judge to dispense justice. If democracy and parliamentary practices are capable of producing an undercurrent of supremacy then the Constitution is either not followed or if followed then its interpretation is misconceived. It is more baffling to find the members who brought out of the jail to attend the session of the National Assembly boycotting the session on one pretext or another — defeating the very purpose of producing one in the House.

The other tradition followed by our Parliament is nominating the opposition leader as the chairman of Public Accounts Committee. In the British parliament, an ordinary member of the opposition Labour Party heads the PAC as Jeremy Corbyn, the leader of the Labour Party, neither has time to get into the time consuming proceedings of this standing committee nor is it a matter of such prime importance in their polity.

The Speaker ought to ponder over this question as it has the potential of sparking an unsavoury and unnecessary debate over the constitutional powers between the three pillars of the constitution.

The writer is a former Senator and a lawyer

Published in Daily Times, February 15^th 2019.