Disqualification of the PM

The Supreme Court does not have the jurisdiction

The recent decision of the Speaker of the National Assembly is simultaneously being met with appreciation and criticism. This article contributes to the ongoing debate for purely academic reasons.

Relevant portion of Article 63 (2) reads: “If any question arises whether a member of the 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 theElection Commission within 30 days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.”

Readers must read carefully that “unless he decides that no such question has arisen”. These words were added for the first time in Article 63 (2) under the 18th amendment.This discretionary power did not exist in the original Constitution of 1973 and previous constitutions of Pakistan. This power does not exist in the Indian constitution either. The intention of parliament to arm the custodians of both houses with the above power is clear from the words employed in the amendment itself i.e., to give them express power to decide whether the member stands disqualified or not.

According to the relevant portion of Article 69 (2), no officer of parliament in whom powers are vested to conduct the business etc of the parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. As I mentioned in the preceding lines, the Speaker has been specifically empowered to decide whether the question of disqualification of any particular member has arisen or not. According to Erskine May, the senior most officer of the Parliament is Speaker. The expression ‘proceeding’ of Parliament has a wide connotation. It includes every business conducted by the speaker for which the speaker derives authority from the Constitution, law and rules of business etc. And in this context, provisions of Article 63 (2) are unambiguous. According to Basu, “Officials of the house acting in the course of their duties as well as witnesses giving evidence to the Committees of the House are proceedings and are protected.” (Commentary on the Constitution of India by Basu).On point of disqualification of members of the parliament an amendment was made in para 6 (1) of the 10th schedule to the Indian Constitution by the 52nd amendment in 1985 whereby the decision of the speaker was exempted from any judicial review which reads: “Notwithstanding anything in the Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this schedule.” According to the Federal Court: “In respect of the exercise by him of those powers indicate that the speaker or other officer or the legislature will be immune from proceedings in court only so long as he acts intra vires the Constitution.”(Umayal vs Lakshmi, AIR 1945 FC 25 (42). According to the Indian Supreme Court, the area of powers etc of the legislature is exceptional and extraordinary; therefore, ought not be tested on the traditional parameters of judicial review unless acts of parliament/speaker are challenged on the grounds of lack of jurisdiction, violation of constitutional mandate, non-compliance of principles of natural justice etc. (Raja Ram Paul vs Speaker, (2007) 3 SCC 184). The provisions of Article 56 and 89 of 1956, Constitution of Pakistan were similar to Article 69 of 1973 Constitution; however, Clause (1) was more express, which reads: “The validity of any proceedings in the Provincial Assembly/National Assembly shall not be questioned in any court.”

The Supreme Court of Pakistan endorsed the above legal position as far back as 1958. Cornelius, J held: “The protection granted to proceedings in a Provincial Assembly against interference by the courts is to be understood and given its full content by reference to the historical development of that right, through some six centuries of contention, in relation to the House of Commons. I feel no hesitation in thinking that this provision was introduced into the Constitution with a full knowledge of the extent to which the House of Commons succeeded in establishing its privilege against the jurisdiction of the courts in relation to its own internal proceedings.” (Pakistan vs Ahmad Saeed Kirmani, PLD 1958 S.C. (Pak) 397).

The Lahore High Court in a later case followed the above decision of the Supreme Court. The court also referred to with approval a decision of the Rangoon High Court on point of disqualification of a member, which reads: “The punishment of declaring a seat vacant cannot be inflicted on a member of the legislature until a competent court has found him to be disqualified.” (AIR 1941 Rang. 151).In another case, the Supreme Court of Pakistan agreed that the validity of proceedings in assembly relating to its business are immune from challenge in courts but question relating to title of person to be member of assembly etc is not a question pertaining to internal proceedings of assembly. And as such not immune from attack in courts. (Farzand Ali etc vs Province of West Pakistan, PLD 1970 SC 98).

As I mentioned at the outset, the speaker has been vested with specific powers in express language under the 18th amendment dated 20th April, 2010. When the precedent cases were decided by the courts in Pakistan, the speaker was not armed with the powers conferred upon him under 18th amendment. The power which has been exercised by the present speaker of the National Assembly stands conferred upon her under Article 63 (2) of the Constitution. Moreover, this power has also been given to her by the decision of the Supreme Court itself. The Supreme Court did not disqualify the respondent Prime Minister. Therefore, the punishment of declaring his seat vacant could not be inflicted on him as also observed by the Rangoon High Court. Instead, according to the Supreme Court, the serious consequences are likely to follow in terms of Article 63 of the Constitution. Under Article 63 (2), the primary power to decide the question of disqualification is given to the speaker/chairman (as the case may be), instead of any other authority, including the Supreme Court.

The most important words in Article 63 (2) are unless he decides that no such question has arisen. The jurists are unanimous that every word, even a comma employed in the constitution has to be acted upon and ascribed a meaning. If in the present controversy, the decision of the speaker is to be disapproved, it would amount rendering the above mentioned words redundant. Article 63 categorically excludes provision of appeal against order of speaker/chairman. In my humble view, a new dimension has been given to the powers, supremacy and sovereignty of the Parliament under Article 63 (2) after the passage of 18th amendment.

The writer is a former judge of the Lahore High Court.