Constitutional Force Of A Speaker's Ruling

CONSTITUTIONAL FORCE OF A SPEAKER'S RULING CONSTITUTIONAL FORCE OF A SPEAKER'S RULING By Asif Saeed Khan Khosa, Advocate, Supreme Court of Pakistan The "Objectives Resolution", passed by the first Constituent Assembly of Pakistan in March, 1949, provided, inter alia, as follows: "Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; . This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of the people;‑‑‑‑‑‑‑‑‑‑", In the successive Constitutions that were adopted by the people of Pakistan over the last four decades the principles and provisions of that Objectives Resolution were added as a Preamble thereto till the year 1985 when, through the insertion of Article 2A in the Constitution of Pakistan, 1973, it was, categorically provided that "The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly". In the Constitution of Pakistan, 1973 the body of the chosen representatives of the people at the Federal level who are to exercise the sovereignty of Allah Almighty in the State of Pakistan as a sacred trust is called the Mjlis‑e‑Shoora (Parliament) which, by virtue of Article 50 of the Constitution, consists of the President and two Houses known respectively as the National Assembly and the Senate. It is ultimately this body of the chosen representatives of the people which is the repository of all worldly authority and sovereignty in the State of Pakistan. Although the Constitution provides that the President of Pakistan is the Head of the State (Article 41) besides being the Head of the Executive (Article 90(1)) and he is also a constituting component of the Majlis‑e‑Shoora (Parliament) under Article 50 yet the other two components of this body can also remove or impeach him from his office under Article 47 of the Constitution. Even the Federal Cabinet, which, under Article 91(1) of the Constitution, is to have a Prime Minister at its head and which is to aid and advise the President in exercise of his functions, is to be collectively responsible to the National Assembly under Article 91(4) of the Constitution. The National Assembly can also remove a Prime Minister through a vote of no‑confidence. Under Article 97 the executive authority of the Federation does not extend beyond the legislative competence of the Majlis‑e‑Shoora (Parliament). The primacy of the chosen representatives of the people, who are the sole delegates of the sovereignty of Allah Almighty in the State of Pakistan, over the Executive is, therefore; unquestionable and beyond controversy. Article 67(1) of the Constitution authorizes the National Assembly to make rules for regulating its procedure and the conduct of its business and the Constitutional status of such rules is recognized by the Constitution itself in its Articles 66(1), 53(3) and 56(4). It is important to point out that such rules made by the National Assembly do not even require an assent by or consultation with the President as required for other laws or rules under Articles 75(1) or 72(1). This shows, and shows very convincingly, that in the conduct of its business and in the exercise of its powers under its rules, the National Assembly and its Speaker are autonomous and sovereign. This spirit is abundantly manifest from Rule 31 of the Rules of Business of the Federal Government (framed under Article 99 of ‑the Constitution) which makes the compliance of the Rules of Parliament mandatory for all Divisions of the Federal Government. Article 149 of the Constitution authorizes the Federal Government to issue different directions to the Provincial Governments and a direction to comply with the rules of the Parliament or an action to be taken thereunder is not outside the scope of that Article. Even the Judiciary has been restrained by the Constitution from interfering with this internal autonomy and sovereignty of the Majlis‑e‑Shoora (Parliament) and this is evident from clause (2) of Article 69 of the Constitution which provides that: "No officer or member of Majlis‑e‑Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis‑e‑Shoora (Parliament), shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers." By virtue of the provisions of Article 69(3) read with Article 66(5) of the Constitution this blanket immunity from judicial control is available to the officers and members of both the Houses of the Majlis‑e‑Shoora (Parliament). Looked at from this perspective it is quite clear that the power and authority of the chosen representatives of the people under Article 2A read with the other provisions of the Constitution as well as the rules of the Houses of Majlis‑e- Shoora (Parliament) is absolute and an action taken or an order passed thereunder by the members or officers of any of the said Houses needs mandatory execution or compliance by all the functionaries of the State. Before discussing the legal status of a ruling given by the Speaker of the National Assembly in exercise of the Rules of the National Assembly framed by the National Assembly under the authority of the Constitution it appears appropriate to first determine the Constitutional status of the Speaker himself under Article 53(1) of the Constitution "After a general election, the National Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker". The Speaker is to preside over the meetings of the National Assembly. By virtue of clause (2) of Article 72 even a joint sitting of the two Houses of Majlis‑e‑Shoora (Parliament) is to be presided over by the Speaker of the National Assembly and not by the Chairman of the Senate. Even the President or the Prime Minister attending a meeting of the National Assembly or a joint sitting of the two Houses cannot speak therein without the permission of the Speaker and is subject to all the disciplinary and other powers of the Speaker regarding conduct of business therein. The Constitutional status of the Speaker is such that even if the National Assembly over which he presides is dissolved the Speaker is, by virtue of Article 53(8) of the Constitution, to continue in his office till the person elected to fill that office by the next Assembly enters upon his office. The Speaker is also a substitute President of the country as, under Article 49 of the Constitution and under the oath of his office prescribed in the Third Schedule, he is to act as the President in certain situations. Under clause (1) of Article 54 of the Constitution it is the President who is to summon or prorogue a meeting of the National Assembly but clause (3) of the same Article confers that power exclusively on the Speaker in a particular situation. In that background if the Speaker of the National Assembly, in exercise of his powers derived under the Constitution, passes a ruling and issues a direction for production of certain members of the National Assembly in the House for their participation in its proceedings then that ruling and direction has to be complied with by the concerned Government agency by way of a Constitutional command. Arrest of those members in criminal cases or permission of the relevant Courts before their production in the House is totally irrelevant to compliance of this Constitutional command. Parallels to this situation do exist in the Constitution itself where, despite judicial verdicts or pendency of judicial proceedings, a Constitutional functionary can interfere with those verdicts or proceedings while exercising his powers independently conferred by the Constitution. For instance Article 45 of the Constitution provides that: "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority." This is a clear example where, in exercise of his independent Constitutional powers, a judicial verdict rendered by even the highest Court of the country can be interfered with by a functionary of the State sand that too without even associating the Court concerned in that process. Likewise, Article 56(1) of the Constitution provides that: "The President may address either House or both Houses assembled together and may for that purpose require the attendance of the members." The use of word "require" is quite significant here. There is an element of command inherent in "requiring". The Oxford English Dictionary defines "require" as Order (person); demand of person, to do; ask as of right; lay down as imperative". This Constitutional command by the President is nothing but imperative and the concerned agencies of the Government, in obedience to this command, are to produce even the arrested or detained members of the House/Houses in such a sitting. Judicial verdicts, pendency of judicial proceedings or obtaining permission of the Courts concerned are totally irrelevant to obedience of such a Constitutional command. This also shows that the Constitution itself, in so many words, contemplates requiring attendance of the members for a 'sitting of a House and such requirement has not been conditioned by any permission of any Court or authority having custody of such a member. Thus, if the Speaker, in exercise of his explicit and independent constitutional powers, passes a similar order for production of some members of the National Assembly from the custody of some authorities for the purpose of their attendance of a session of the Assembly then the logic of Article 56(1) of the Constitution will apply with equal force to the Speaker's order as well. Even otherwise, resisting such an order of the Speaker on the ground of pendency of judicial proceedings against such members does not appear to be legally quite sound. The Speaker's order does not in any way interfere with any irrevocable judicial order. He does not, and cannot, order the release of such members on bail nor is he asking for their release on parole. His order only involves regulating the custody of such members who, in obedience to his Constitutional command, are to be produced (under arrest) before the meeting of the National Assembly for their participation therein and are to be taken back to their respective places of custody after the session of the Assembly is over. Such compliance with the order of the Speaker does not come in conflict with any judicial proceeding pending against such members. But if at all there does exist any such conflict then, obviously, the Constitutional powers of the Speaker must override the sub‑Constitutional powers of such Courts or other authorities. Another angle from which this question can also be approached is that of public interest and social policy. Article 64(2) of the Constitution provides that "A House may declare the seat of a member vacant if, without leave of the House, he remains absent for forty consecutive days of its sittings". This provision signifies two very important features. Firstly, leave of the House is necessary for absence of its member from that House. This could also show that the relevant House also keeps a domain or jurisdiction over its members even if they are under arrest or detention. If such a domain or jurisdiction of the House over its members does exist then, obviously, no legitimate exception can be taken against the presiding officer of that House issuing an order for such member's production before the House, especially when the rules of the House confer that power on him in most categorical, unambiguous and specific terms. Secondly, it is in public interest that the members representing various constituencies should attend the sittings of their House regularly and participate therein effectively. Their absence from the sittings of the House renders their constituencies un-represented in the deliberations of the House as well as in the legislative process. This clearly militates against public interest and social policy. Arresting a member on a bald, and sometimes inspired, allegation of having committed a crime or detaining him under preventive detention laws and then resisting his production before the House for his participation in its proceedings (under custody) amounts to punishing the electorate of that constituency for no fault of theirs' by depriving them of their representation at such an important forum. Something has to be seriously wrong somewhere before a Government decides to desist such a legitimate and genuine order of the Speaker. In the end it needs to be stressed that in a struggle for any cause there come situations which prove to be turning points. In our struggle for parliamentary democracy the present situation can be perceived as an important turning point. It is a situation where either parliamentary sovereignty wins or democracy loses. Once the Government (it is immaterial whose Government it is) is allowed to ignore a ruling given by the Speaker then this becomes a precedent for the posterity and no future Government will then ever attach any weight to such rulings. Therefore, now is the time to ensure that, in terms of Article 2A of the Constitution read with the Objectives Resolution, the sovereignty of Allah Almighty and the authority which He has delegated to the State of Pakistan as a sacred trust shall continue to be exercised through the chosen representatives of the people and not by force outside their elected chambers.