- Law Ministry urges Sadiq not to forward disqualification reference against PM to ECP
- Ministry’s letter says PM’s ‘off-beam’ statement on COAS’s ‘facilitative role’ has ‘constitutional protection’, advises speaker to place ruling before next NA sitting
The Law Ministry has advised National Assembly Speaker Sardar Ayaz Sadiq not to forward a reference seeking disqualification of Prime Minister Nawaz Sharif under articles 62 & 63 (2) of the Constitution for his alleged “off-beam” statement made during the Parliament’s joint session over seeking army’s help as a facilitator to resolve the ongoing political crisis.
In an official letter, the Law Ministry has advised the speaker that being a matter in which constitutional qualification of the leader of the house in the National Assembly was impugned, Sadiq should place the ruling before the National Assembly in its first sitting of the next session.
A source in the government said that the speaker’s secretariat had sought advice from the Law Ministry over the reference filed by Advocate Azhar Siddique along with three lawyers seeking disqualification of the prime minister as member of the National Assembly.
The Law Ministry further informed the speaker that the petitioner had alleged that the prime minister had sought help from Chief of Army Staff (COAS) General Raheel Sharif, requesting him to act as arbitrator/negotiator/facilitator/guarantor between the government and the protesters.
The petitioner said that during the National Assembly session, the premier informed the House that he had not requested the COAS for help/assistance to act as arbitrator or guarantor – a fact later contradicted by the army’s media wing, ISPR.
“It is clear that respondent deliberately misrepresented the facts and falsely stated in the House that he did not seek the help of Pakistan Army. Therefore, he has incurred disqualification as mentioned in Article 62(1)(d) and 62(1)(e),” the Law Ministry’s letter quoted the petitioner.
Constitution’s Article 63(2) states, “If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, 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 30 days, and if he fails to do so within the aforesaid period, it shall be deemed to have been referred to the Election Commission.”
The Law Ministry has advised the speaker to apply his own mind over the reference rather than acting as a mere “post office” and himself determine whether or not the prime minister’s act had fallen under Article 63(2).
LEGAL PRECEDENCE:
The Law Ministry’s letter also carries legal precedents.
“It has been held in Kanwar Intizar Muhammad Khan vs Federation of Pakistan and others reported in 1995 MLD Lahore 1903 that the Speaker while examining a reference under Article 63(2) of the Constitution is not supposed to act merely as post office. If a reference is submitted to him, he is not bound to forward/transmit the same, to the Chief Election Commissioner for decision forthwith. The Speaker has to apply his own mind judiciously after fully taking into consideration the relevant provisions on the subject and then decide as to whether ‘any question’ in the nature of disqualification has ‘arisen’ which may justify the making of reference to the Chief Election Commissioner. The same view was also held by Supreme Court of Pakistan in PLD 2005 SC 52”.
The advice letter quoted a ruling of Senate chairman on this subject in Senator Brig (r) Hayat Mohammad Malik (1985) case whereby a petition for disqualification of the senator submitted before him was withheld/dismissed.
LEGAL LACUNAS:
Identifying legal lacuna in the petition, the Law Ministry’s advice stated that the petitioner had wrongly sought disqualification under Article 62 which according to the letter deals with pre-election qualification.
The advice further referred to constitutional privilege of MPs in terms of Articles 66(1) which provides protection to the speeches made in the parliament which could not be challenged in any court of law.