Equality before law cannot have an asterisk

Federal Interior Minister Mohsin Naqvi has raised a question that deserves a serious national debate: if an MPA is accused of a criminal offence, should the police first obtain the Speaker’s permission before making an arrest?

His question may have been deliberately provocative, but the principle behind it is anything but trivial.

The Khyber Pakhtunkhwa Provincial Assembly has introduced a legal framework under which prior permission of the Speaker is required before a member can be arrested on a criminal charge or detained under an executive order. A September 25 communication from the Assembly Secretariat to the Inspector General of Police has now directed the police to strictly follow this procedure.

This raises a fundamental question about the meaning of equality before law.

Pakistan’s Constitution is unambiguous in Article 25: “All citizens are equal before law and are entitled to equal protection of law.”

An elected representative is a citizen before becoming an MPA.

Parliamentary privilege is an important component of democracy. Legislators must be able to speak freely, participate in parliamentary proceedings and perform their constitutional responsibilities without fear of political retaliation. No democratic system should allow the executive to use the police or criminal justice machinery simply to silence political opponents.

But there is a critical difference between protecting parliamentary independence and creating personal immunity for parliamentarians.

That distinction cannot be ignored.

If an MPA is accused of a crime completely unrelated to his or her parliamentary duties, why should the normal criminal process require an additional political permission before an arrest can take place?

The question becomes even more important when the alleged offence is serious.

Suppose an ordinary citizen is accused of murder. The police investigate the allegation and, where the law permits, proceed according to criminal procedure.

Now suppose the accused happens to be an MPA.

Does the person’s election to the provincial assembly change the basic criminal procedure applicable to him?

If the answer is yes, then lawmakers need to explain why such a distinction is necessary — and where its limits lie.

This is not an argument against parliamentary privilege. It is an argument for defining parliamentary privilege carefully.

The legislature makes laws. The police investigate crimes. Prosecutors pursue cases. Courts determine guilt or innocence. Each institution has a distinct role.

When a political office-holder is given the authority to decide whether another political office-holder can be arrested in connection with an alleged criminal offence, the boundary between parliamentary privilege and criminal justice becomes blurred.

There is, of course, a legitimate argument on the other side.

In Pakistan’s political history, allegations of politically motivated arrests and cases against opponents are hardly theoretical. Elected representatives should not be vulnerable to arbitrary action simply because an executive authority wants to intimidate them. There must be safeguards against misuse of police powers.

But the solution to executive overreach cannot be to place legislators beyond the ordinary operation of criminal law.

The solution should be due process, judicial oversight, transparent investigation and institutional checks and balances.

An MPA accused of a crime deserves due process.

So does an ordinary citizen.

An MPA should be protected against politically motivated prosecution.

So should every Pakistani citizen.

That is where the debate over the KP legislation becomes much bigger than Mohsin Naqvi, the KP government or any particular political party.

It concerns the kind of state Pakistan wants to be.

The concept of Riyasat-e-Madina is frequently invoked in our political discourse. Whatever one’s interpretation of that concept, a state founded on justice cannot logically operate with one standard of accountability for ordinary citizens and another for holders of political office.

The real test of equality before law is not how institutions treat the powerful when they are innocent.

It is how the system functions when the powerful are accused.

There is another important distinction that deserves attention.

If an allegation relates directly to parliamentary proceedings, legislative speech or the discharge of constitutional functions, parliamentary protection has a clear institutional purpose.

But if an alleged offence has nothing to do with the Assembly and concerns the individual’s private conduct, the justification for a separate layer of protection becomes far more difficult to establish.

The danger is that a protection originally intended to defend the legislature could gradually become a mechanism for protecting individuals.

That would be an entirely different proposition.

Democracy does not mean elected representatives are above the law. Democracy means that those who exercise public power are themselves subject to law.

The people elect legislators to make laws. They do not elect them to become a separate class of citizens.

Mohsin Naqvi’s hypothetical — asking whether police would need the Speaker’s permission if an MPA were accused of killing someone — cuts through the political noise and exposes the central issue.

The question is not whether an MPA should be protected.

The question is what exactly should he or she be protected from?

Political victimisation?

Absolutely.

Arbitrary state action?

Certainly.

Unlawful detention?

Of course.

But protection from the ordinary consequences of a criminal allegation should be a very different matter.

Parliamentary privilege should strengthen democracy, not weaken the principle of equal citizenship.

Pakistan needs institutions strong enough to prevent political victimisation without creating political immunity.

It needs a criminal justice system capable of investigating allegations against the powerful as carefully as allegations against the powerless.

And above all, it needs a simple principle to remain simple:

The law must protect Parliamentarians from political victimisation — but parliamentary status must not place anyone beyond the reach of the law.

Because equality before law loses its meaning when an asterisk is attached to it.