P L D 1988 KARACHI 309
KARACHI BAR ASSOCIATION
ABDUL HAFEEZ PIRZADA AND ANOTHER
Per Ajmal Mian, J.
(a) Constitution of Pakistan (1973), Articles 204, 66 & 68:
Articles 204, 66 & 68 — Rules of Procedure and Conduct of Business in the National Assembly of Pakistan, Rule 258 — Construction of Articles 204, 66 & 68 — Speeches of the Members of the National Assembly enjoy qualified privilege subject to Constitution and are amenable to contempt of Court proceedings under Article 204. – [Contempt of Court]
A reasonable construction of Article 66, Constitution of Pakistan (1973), in conjunction with Articles 68 and 204 will be that the freedom of speech of a member of the Majlis-e-Shoora envisaged by para 1 of Article 66 is subject to the Constitution and, therefore, if any of the provsions is violated by a speech and for such a violation remedial action can be taken under the Constitution, the same can be availed of. It must, therefore, follow that if a member violates the provision of the Constitution, he is amenable to Article 204 of the Constitution. However, the Court will be reluctant to exercise the power of contempt of Court in respect of a speech made by a member within the four-walls of Majlis-e-Shoora chamber unless there are compelling reasons. There cannot be two opinions that for the proper functioning of a Parliament, its members should have freedom of speech uninterfered with by an outside institution but at the same time it cannot be denied that the Judges of the superior Courts cannot discharge their Constitutional onerous duties unless they are free from all sorts of outside pressures and, therefore, the Constitution-makers thought it fit and proper to incorporate above Articles 68 and 204 for prohibiting any discussion in the Majlis-e-Shoora with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and empowering the Court to take action for contempt. A written Constitution like one which we have, contemplates trichotomy of powers between the three organs of the State, namely, the executive, the legislature and the judiciary. They have to act within the bounds specified in the Constitution. And transgression or encroachment by one organ over the sphere of the other will result into chaos and uncertainty. It is, therefore, of paramount importance that an equilibrium is to be maintained inter se between the above three organs within the limits prescribed by the Constitution. [p. 325] B
It is not possible to subscribe to the submission that since under the rules the Speaker has the power to expunge any speech or any part thereof or to expel a member, the Court cannot take action under Article 204 of the Constitution. The Court cannot be devested of its power conferred on it by the Constitution by framing of rules under ARticle 67 of the Constitution. Nor submission that Article 68 is directory and not mandatory in nature seems to be in consonance with the language employed therein, which is of mandatory nature as the words used are “No discussion shall take place in”. Article 68 is an exception to the rule of freedom of speech provided in Article 66 and the same is to be construed strictly and unless there is a clear violationm of Article 68, no action under Article 204 against a member of the Majlis-e-Shoora can be taken inrespect of the speech made by him within the four-wall of the chamber of the Majlis-e-Shoora. [p. 325] C
Held, the speeches of the members of the National Assembly enjoy qualified privilege subject to Constitution and are amenable to contempt of Court proceedings under Article 204 as indicated hereinabove. [p. 325] D
ISLAMIC REPUBLIC OF PAKISTAN V. MIAN MAHMOOD ALI KASURI AND OTHERS 1976 SCMR 273; AHMAD SAEED KIRMANI AND 3 OTHERS PLD 1958 SC 3971; CH. ZAHOOR ILLAHI M.N.A. V. ZULFIQAR ALI BHUTTO AND 2 OTHERS PLD 1975 SC 383; THE STATE V. ZIA-UR-REHMAN AND OTHERS KPLD 1973 SC 49; YAQOOB ALI V. PRESIDING OFFICER, SUMMARY MILITARY COURT, KARACHI PLD 1985 KARACHI 243. Ref.
INTERPRETATION — High Court cannot attribute any redundancy to any provision of the Constitution or any part thereof — Provisions of Constitution are to be construed as to give effect to each and every word thereof.
We are inclined to hold that we cannot attribute any redundancy to any provision of the Constitution or anyu part thereof. The provisions of the Constitution are to be construed as to give effect to each and every word thereof. If we were to accept the contention of Mr.Kamal Azfar the words “Subject to Constitution” appearing in para 1 of Article 66 will be rendered redundant/surplusage which will be against the above well-settled principle of interpretation of a Constitutional provision and also against the intention of the Framers of the Constitution as the above words were not used in the corresponding provisions of the late Constitution of 1962.