1997 PLP 1960 (MLD)

The learned A.A.‑G also submitted that not a single instance has been cited which may show that the party in power has hostile attitude against the petitioner and the allegation that the action was mala fide is not correct. There is no malice, as not a single instance of such action has been cited. The learned counsel for the petitioner conceded that the validity of any proceeding cannot be questioned on the ground of irregularity of procedure but according to him there were illegalities. He relied on decision reported in PLD 1989 Quetta page 25 wherein this Article has been discussed and it has been held that the jurisdiction of High Court has been ousted only in respect of irregularity of procedure but as regards interpretation of Constitution, the jurisdiction of High Court is unaffected. The facts of this case are altogether different. In this case the main contention of the learned counsel for the petitioner is that the rule 55(2) of the rules of procedure of the Provincial Assembly of Sindh provides that the Speaker shall put the question without debate that leave be granted and according to this rule there is no option for refusal. The learned A.A.‑G submitted that this rule is to be read with Article 64(2) of the Constitution which says that seat of member is to become vacant if without leave of the House he remains absent for 40 consecutive days of its sitting. It therefore shows that the leave of the House is necessary and the House has the option to refuse leave. The learned counsel for the petitioner has also submitted that the petitioner had not remained absent for 40 consecutive days of its sitting as there was break. The learned A.A.‑G. referred to dictionary meaning of the word consecutive. Apart from this the learned counsel for the petitioner has contended that the total absence of petitioner was 27 days. These are points of controversy between the parties but in this case we will touch these points after we are satisfied that we have the jurisdiction. Learned counsel for the petitioner conceded that in case of irregularities this Court cannot intervene but when there is illegality the High Court by virtue of powers under Article 199 of the Constitution can grant relief. The provision of Article 69(1) is as under:‑‑‑ "The validity of any proceeding in Majlis‑e‑Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure." The word used is irregularity of procedure. Black's Law Dictionary defines word "irregular" as under:‑‑‑ "Not regular, not according to establish law, method, or usage, not conformable to nature, to rules of moral rectitude or to establish principles, not normal, disorderly." To this extent there is no dispute as even irregularity of procedure cannot be questioned by Courts of Law. Learned counsel for the petitioner insists that there has been illegalities the word 'illegal' has been defined in Black's Law Dictionary as under:‑‑‑ "Against or not authorised by law". Although it is the argument of the learned counsel for the petitioner that there have been illegalities but he failed to mention any instance where the provision of law had been intervened or violated. The House is authorised to pass a resolution in accordance with the prescribed law to declare the seat as vacant in case there is absence of member for period of 40 consecutive days of sitting of the assembly. The relevant provision of Constitution is as under:‑‑‑ "64.‑‑‑(2) The House may declare the seat of a member vacant if without leave of the House he remains absent for 4%.consecutive days of its sitting." According to rules of procedure and especially in rule 56 of the Rules of Procedure of the Provincial Assembly of Sindh it is mentioned that if a member remained absent without leave of the Assembly for 40 consecutive days of its sitting, the Speaker shall bring the fact to the notice of the Assembly and thereupon any member may move motion that the seat of the member who has been so absent be declared vacant. The rule 56 (2) provides that if the seat of the member is declared vacant the Secretary shall cause the Notification to that effect to be published in the Gazette and the copy of the Notification is to be sent to Chief Election Commissioner for taking steps to fill the vacant seat thus caused. In this case the rules have been strictly followed and the Notification of the Secretary, Provincial Assembly of Sindh dated 19th June, 1995 is as under:‑‑‑ "No. PAS /Legis‑G‑21/94.‑‑‑In pursuance of the provisions of sub‑rule (2) of Rule 56 of the Rules of Procedure of the Provincial Assembly of Sindh, it is notified that consequent upon the motion moved by Mr. Lal Bux Bhutto, MPA on 19th June, 1995, under sub- rule (1) of the said rule, the House has declared the seat of Jam Madad Ali, Member, Provincial Assembly of Sindh from Constituency PS‑66 Sanghar‑III vacant, under Article 64(2) read with Article 127 of the Constitution of Pakistan, 1973. " The questions that have been argued before us are adequately answered in decision reported in PLD 1990 Lahore page 401 it is necessary to reproduce some paragraphs of this judgment. The paragraph 13 of this judgment is as under:‑‑‑ "I may add that the judiciary or the judicial department though independent but is an equal coordinate branch of the Government and is charged with the duty and power to interpret, construe and apply the Constitution and law but in exercise of this power, the judiciary claims no supremacy over other organs of the Government e.g. the legislature but acts only as an administrator of the public will. See The State v. Zia‑ur‑Rehman and others PLD 1973 SC

49. The judiciary, as such, while exercising, 'the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. In this respect effect of Article 127 read with Article 69 of the Constitution is to be noticed. Article 69 reads as under:‑‑‑ "

69. Courts not to inquire into proceedings of Mailis a Shoora (Parliament). ‑‑‑(1) The validity of any proceedings in Majlis‑e‑Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (2) 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. (3) In this Article Majlis‑e‑Shoora (Parliament) has the same meaning as in Article 66. " It is because of the presence of these Articles in the Constitution that the superior Courts have refused to scrutinise the internal proceedings and procedure of the Assembly so that the independence and sovereignty of the Legislature in that respect is not infringed and violated or encroached upon in any manner. The Chief Justice Warren of the Supreme Court of United States in the case of Powell v. McCormack, (1969) 23 L Ed 2d 491 observed: "In deciding generally whether a claim is justiciable, a Court must determine whether 'duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted‑can be judicially moulded'. Baker v. Carr (1962) 369 US 186 at p. 198: L Ed 2d 663 at p. 674'. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined, he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded." We are in complete agreement with the decision of their Lordships that the judiciary while exercising the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. The Assembly is a sovereign body and it acts in accordance with the prescribed rules. Even if there is irregularity the Constitution does not authorise the Court to question the irregularities of Assembly. In this case there is no such event which may justify this Court to intervene. Thus we arrive at the conclusion that the procedural irregularities if any in the proceeding of the Assembly cannot be scrutinised by this Court in exercise of Constitutional jurisdiction. In view of abovementioned reasons the present petition is dismissed in limine alongwith the application. A.A./M‑92/K Petition dismissed.