Parliament not sovereign – Justice Khawaja

PRESS RELEASE: Dated: 3-July-2012 – Earlier today the Supreme Court released the detailed judgment in the Speaker’s Ruling case. On 19th June 2012, the Court had passed a Short Order, upholding petitions challenging the ruling of Speaker of the National Assembly, Dr. Fehmida Mirza. After the conviction of the former PM Yusuf Raza Gilani, the Speaker had to decide whether or not to make a reference to the Election Commission for Mr. Gilani’s disqualification. The Speaker decided that no question of disqualification had arisen, despite the PM having earned a conviction for contempt from the apex Court. Various petitioners, including PTI and PML-N challenged the Spreaker’s ruling. While hearing these petitions, the Court found the Speaker’s decision to be against the law and held that the PM did indeed stand disqualified to be a member of the Parliament. Today detailed reasons have been given for this order.

The three-member bench which decided the case consisted of Chief Justice Iftikhar Chaudhary, Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain. The lead opinion has been authored by the Chief Justice. The CJ focused on the fact that the detailed judgment of the Supreme Court in the PM’s contempt case had found him guilty of contempt and of bringing the Court into ridicule. The PM did not file an appeal against his conviction, as a result of which it attained finality. The CJ has ruled that when a court of competent jurisdiction finds a member of Parliament guilty of an offence falling under Article 63(1)(g) of the Constitution, the Speaker has no discretion left in the matter. In such circumstances, the Constitution requires the Speaker to refer the matter of disqualification to the Election Commission. Therefore, by not referring the matter to the Election Commission, the Speaker exceeded her lawful authority. Her decision therefore was liable to be struck down upon judicial review.

In a concurring note, Justice Khilji has placed reliance on various precedents to show that the Speaker’s decision on qualification or disqualification of parliamentarians is not immune from judicial review. He has also rebutted the argument that the mechanism for disqualification provided in Article 63 is the exclusive way of dealing with the question of disqualification. A solid chain of precedents from the 1960s onward, including Farzand Ali’s case (1970) shows that the superiors court have an independent power to unseat people illegally occupying public office, including members of Parliament. The well-known writ in the nature of quo warranto is available in the Constitution precisely for this purpose. The presence of an alternative remedy under Article 63(2), in the form of recourse to the Election Commission, has not extinguished this power of the superior courts. In the present case, where the conviction was evident on the face of the record, and the case did not involve any disputed questions of fact, this power of the Court to disqualify a member of the Parliament had been rightfully invoked.

Justice Khilji also presents a detailed legal analysis of the Court’s doctrine on the issue of maintainability of petitions under Article 184(3). He notes that the possibility of the highest executive office of the Federation being in the occupation of someone who stood legally disqualified to occupy that office was a matter of grave concern. Indeed, there could scarcely arise a bigger question of public important with reference to the enforcement of fundamental rights in the country. If the PM himself is guilty of illegality, how can the rest of the state machinery be expected to uphold the rule of law. Therefore, the Court, which is obliged by the Constitution to ensure adherence to the rule of law, could not be expected to act as a silent bystander. It had no recourse but to entertain these petitions under Article 184(3).

In a short concurring note, Justice Khawaja highlights certain constitutional principles. He notes that in the Pakistani context, the old-fashioned British concept of parliamentary sovereignty is no longer relevant. In Pakistan, the Constitution enjoys supremacy over all organs of the state, including the Parliament. Therefore, on constitutional issues, members of Parliament, including the PM, could not avoid being answerable in court. Justice Khawaja also elucidates that the various provisions of the constitution invoked in this case, i.e. Article 190, (obliging all executive authorities to assist the SC), Article 204 (allowing SC to punish contemnors) and Article 63(1)(g) (disqualifying contemnor) all fell into a neat scheme. The purpose of this scheme was to create an effective mechanism for ensuring adherence to the Constitution. And since the constitution is the manifestation of the will of the people, adherence to the Constitution also represents the triumph of democracy. Justice Khawaja observes that the removal of the convicted PM and his replacement through constitutional means by the Parliament demonstrated that in Pakistan, institutions held precedence. As long as the Constitution is scrupulously adhered to, no individual, not even the PM, is indispensible.

A copy of the detailed judgment (including an Urdu translation) is available on the Court’s website.

Courtesy: Supreme Court of Pakistan

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