Incorrect vs illegal

Whatever its tactics, round 1 goes to PPP

On Thursday, Speaker of the National Assembly cast aside her constitutional responsibilities of being a non-partisan “guardian of the rights” of 342 members of the National Assembly, and stepped forth as a PPP-loyalist who holds her commitment to the party as more sacred than her constitutional oath as the Speaker.

In a decision, which reads as though it had been written well in advance of the SC order (for it makes no real reference to the order itself, focusing primarily on the charge framed against the PM), the Speaker has concluded that “the charges against Syed Yousaf Raza Gilani are not relatable to the grounds mentioned in paragraph (g) or (h) of clause (1) of Article 63, therefore, no question of disqualification of Syed Yousaf Raza Gilani from being a member arises under clause (2) of Article 63 of the Constitution.” And in the aftermath, a debate has erupted across our media-waves (as it usually does), about whether the Speaker has acted unconstitutionally in the matter.

To better assess this issue, it is pertinent to look deeper into the relevant constitutional provisions and case law. Article 63(1)(g) of the Constitution, inter alia, states that a person shall be “disqualified” from being a members of the Parliament if such person “has been convicted by a court of competent jurisdiction” for propagating an opinion or acting in a manner that “defames or brings into ridicule the judiciary”. The PM, in light of the judgment of the SC against him (regardless of the specific language of the charge framed against him) fits squarely within the confines of this Article. And to make the matter simpler, the Supreme Court has itself declared that the conviction is “likely to entail some serious consequences in terms of Article 63(1)(g)”, thus making it redundant to deliberate on whether any “question arises” to this extent.

This brings us to the consequences of attracting Article 63(1)(g), the procedure for which is laid down in Article 63(2). And, thus, we have arrived at our problem.

Article 63(2) of the Constitution starts with the words “If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member…” This language, in effect, implies that in case no “question arises” of this nature, please do not read any further. And only in case such a “question” has arisen, please read further and follow the procedure laid down. In other words, this part of the Article could be read to mean that “Once a question of possible disqualification has arisen…” [follow the procedure laid down herein].

And what is that procedure? The subsequent portion of Article 63(2) stipulates it as such, “the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days…”. Thus, reading of this Article in its entirety, it seems that that once a “question” as to the disqualification of a member of the National Assembly has arisen (as is the fact in case of Yousaf Raza Gilani subsequent to the SC’s judgment), thereafter the Speaker can still “decide that no such question (in her opinion) has arisen”. The discretion of the Speaker has been built into the language of the Constitution, even after such a “question” regarding disqualification has arisen in the opinion of other (including the SC). We can curse the law all we want, for it does not result in the conclusion that a large fraction of our legal community and populi desire, but regardless, that’s what the Constitution states.

Now, has the Speaker, in light of the SC’s judgment, come to a palpably wrong conclusion in deciding that “no question” of the PM’s disqualification has arisen? Yes, absolutely. But is this carefully designed misjudgment an unconstitutional act? In all probability, no! The Speaker’s decision may be palpably incorrect, but is not prima facie illegal. Especially, since the superior judiciary has itself declared in Kanwar Intizar Muhammad Khan VS Federation of Pakistan and others (1995 MLD Lahore 1903) and Ayatullah Dr. Imran Liaqat Hussain v. Election Commission of Pakistan (PLD 2005 Supreme Court 52), that the Speaker is not just a post office and must make a “judicious determination” of the matter. We can criticise the Speaker’s “judicious” determination all we want (for it has been far from judicious), but we cannot label it illegal or unconstitutional.

What next then? What is the constitutional recourse in case the Speaker makes a “judicious” decision that 180 million disagree with, or consider mala fide? While the Constitution does not spell out a procedure for overriding this decision of the Speaker, but in Kanwar Intizar’s case (1995 MLD Lahore 1903), the courts have concluded that they have the “jurisdiction to issue an appropriate writ or order against the Speaker of the National Assembly provided a case for issuance of such a writ or order is made out.”

And this will have to be the next step. The superior courts will have to give a ruling as to the ambit and contours of Speaker’s discretion under Article 63(2). This itself can be a very tricky matter because while there are substantial precedents mandating the executive to exercise its discretion in a ‘reasonable’ manner, the Speaker of the National Assembly is not, stricto sensu, part of the executive. If anything, it is closer to the ambit of the legislature than the executive, and the courts will have to grapple with issues of separation of power in deciding such a matter.

For now, it seems that PPP has won this particular round of institutional boxing. Albeit, the tactics employed by the ruling party have been less than clean, and brought a venerable office into the squabblings of partisan politics. But for a long time now, we have known that the PPP and its allies have taken the gloves off in this fight. Just as, the government will argue, the other side has (which, sadly, includes an ‘unbiased’ judiciary). Whoever wins this constitutional duel, one thing is for sure: the average Pakistani – who is grappling with issues of electricity shortage, price-hikes, law and order, as well as a sclerotic justice system – stands to lose!

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: [email protected]