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Juristic analysis of Articles 34 and 45 of Interim Constitution of AJK, 1974

By Syed Shahid Bahar Advocate  Supreme Court,

In connection with unhealthy atmosphere prevailed after issuance of contempt notice to late Mr. Khalid Ibrahim Khan by the Apex Court of AJK, it is need of the hour to throw light on the constitutional provisions specially dealing with the matters postulated in Articles 34 clause 3 and 42-E keeping in view the reference filed by Sardar Hassan Ibrahim Khan member of Legislative Assembly AJK against the Chief Justice of AJK Mr. Justice Ibrahim Zia on April 2, 2019 (before Chairman Kashmir Council) containing numerous serious allegations interalia a specific allegation having nexus regarding issuance of contempt notice against late Mr. Khalid Ibrahim Khan (the then MLA from constituency LA-19 Rawalakot ) on account of delivering speech on the floor of the House wherein he criticized the “Executive Notification” through which five judges were inducted into the superior judiciary, and ultimately contempt proceedings were initiated and continued zealously but in response of the same, late Mr. Khalid Ibrahim Khan firmly stood upon his stance and stated position instead of coming on back foot by any way. But during this tug of war, Sardar Khalid Ibrahim Khan passed away and ultimately contempt proceedings were accordingly dropped by Supreme Court. Thereafter his elder son Sardar Hassan Ibrahim came forward and opted to contest election against the seat which fell vacant in result of sad demise of his late father, and ultimately he was elected as member of Legislative Assembly on the said vacant seat. In his first speech, he reiterated to continue struggle of his late father quo issuance of an Executive Order issued in violation of command of the constitution. Hence in furtherance of the same stance he opted to invoke the constitutional jurisdiction of the Chairman Kashmir Council in view of Article 42-E of Interim Constitution through Ministry of Kashmir Affairs.
First of all, I would like to deal with the scheme of Article 34 of the Interim Constitution and in this regard relevant portion of Article 34 is reproduced hereunder:-
34. Validity of proceedings of the Assembly.
1. The validity of any proceedings in the Assembly shall not be questioned in any court.
2. ____________________________________
3. A member of, or a person entitled to speak in the Assembly shall not be liable to any proceedings in any court in respect of anything said by him or any vote given by him in the Assembly or in any committee thereof.
4. ____________________________________
5. ____________________________________
6. ____________________________________
As it transpires from the bare perusal of the said Article 34 that a clear cut immunity has been provided to the member of Legislative Assembly or for that matter to a person entitled to speak in the Council / Assembly or in a joint sitting quo his speech or point of view uttered by him on the floor of House and his speech cannot be called in question in any court of law.
While juxtapose analysis of the parliamentary privilege of some countries is hereby articulated as under:-
In United Kingdom, it allows members of the House of Lords and House of Commons to speak freely during parliamentary proceedings without fear of legal action on the grounds of slander or “contempt of court” (underlining is made for emphasis).
Supreme Court of Canada while dealing with parliamentary privilege in a case titled “New Brunswick Broadcasting Co. VS Nova Scotia” held that privilege means exemption from some duty or liability and the legislative branch must enjoy the autonomy which even the Crown and the Courts can not touch.
Under parliamentary privilege, Legislators are entitled to speak freely on the floor of the House, without the fear of being sued as parliamentary privilege is a legal immunity in every civilized democratic State.
Furthermore the validity of any proceedings in the Council or in the Assembly or for that matter in joint sitting could not be questioned in any court; and this constitutional command is mandatory in its nature as world “shall” has been employed in Article 34. There remains no room even for a little bit deviation from the aforesaid provision. It is pertinent to mention here that “corresponding Articles 66 and 69” of the Constitution of Pakistan deal with the same situations and can be helpful to resolve the controversy. While in juxtaposition; same like Articles are also existing in the constitution of India as Articles 105, 122, 194 and 212, simultaneously Article 34 corresponds to section 72 and 89 of the Constitution of Indian Occupied Kashmir (IOK) and that too was existing in Azad Jammu and Kashmir Government Act, 1970 as Section 19.
Crux of the bare perusal of Section 34 coupled with above said Articles of different Constitutions from different territories, it becomes crystal clear that all sort of proceedings rendered on the floor of the House, the Assembly or Council or for that matter in joint sitting have constitutionally acquired “qualified immunity” from the jurisdiction of courts, which simply means that neither procedural nor substantive proceedings shall be called in question in any court. In this regard, I would like to refer the juristic point of view of one of the eminent jurist of AJK who spokes for the proposition as under:-
“No act or omission of the Assembly, Council or Joint Sitting or any action of any of their committees, can be called in question on the ground that meeting of the institution was irregular or improper”. This constitutional proposition had already stood resolved by the Apex Court of Pakistan decades ago in the case titled “Federation of Pakistan VS Ahmed Saeed Kirmani~ PLD 1958 SC 397”. Thereafter so many other cases and plethora of judgments in support of this view are sufficed to fortify the command of Article 34 of Interim Constitution.
Thus, it is unequivocally reflecting and oozing from Article 34 that unqualified freedom of speech on the floor of the House is constitutional privilege of the member of Assembly and no embargo can be placed upon this unqualified privilege by any organ of the State. Furthermore, the Courts of law have no jurisdiction to proceed against any member of Legislative Assembly (or any person having right of speech over there) for any sort of his speech he delivers on the floor of the House. He is at liberty to say anything he likes against any person, even most slanderous things in good faith or bad faith and yet the court will be powerless in the matter while the party slandered will have no remedy to call in question such like privileged speech. This juristic view receives support from judgment of Apex Court of Pakistan reported as PLD 1998 SC 823.
Supreme Court of AJK is an Apex Court in hierarchy of the judicial system equipped with appellate and provisional powers against the decisions of lower Courts. Although constitution has not provided Original Jurisdiction to the Supreme Court of AJK but despite fact in appellate jurisdiction, the judgments rendered by High Court in Writ Jurisdiction are definitely reopened / revisited by Apex Court. Therefore, in such like eventuality, stricto-senso adherence of the scheme of constitution is logically very demand of the constitution itself. In my estimation, powers to initiate contempt proceedings available to superior Courts in view of Article 45 of the Interim Constitution has no overriding effect or for that matter can overlap the Article 34 of Interim Constitution. Even then in case of ambiguity between two constitutional provisions, almost all the canons of interpretation suggests such like interpretation which provides harmonized interpretation instead of conflicting one and in present controversy, adaption of aforesaid interpretative method will definitely indicate the line of difference between both the two articles (i.e. 34 and 45) and the word “person” employed in Article 45 cannot be read in Article 34 for the purpose of initiating contempt proceedings.
Furthermore, in my juristic view, wisdom of equipping the courts of law with the sword of proceedings in contempt of court is basically to maintain equilibrium between the different organs of the State and more than that, for the purpose of implementation and execution of the decisions rather than to protect and safeguard the personal ego of anyone. It is needless to say that courts of law need no tool / shield to ask for their respect as they receive respect by their conduct and decisions. They are always presumed to keep mum and expose whatever they like in black and white while rendering judgment.
Nub of the above view is that Constitution provides a roadmap of trichotomy of powers between 3 organs of the State and transgression of jurisdictional powers specifically allocated by the Constitution itself cannot be usurped by the other organ as well as infringement or any sort of violation by any organ is not permissible and otherwise zealously invites and calls for prompt action by dealing with iron hands.

(The writer is a senior advocate who served as Chairman Executive Committee of AJK Bar Council for the period 2013-17 and was elected as the President of Central Bar Association Muzaffarabad for the tenure 2010-11)

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