saiyan0321
PDF THINK TANK: ANALYST
- Joined
- Jan 9, 2012
- Messages
- 6,455
- Reaction score
- 121
- Country
- Location
In light of the request by Chak Bamu, i am posting this reply to Jungibaaz as a thread. I have also added some further material worth 1500 words regarding the interpretation of "Any Court" The Petition that was rejected and why it was rejected and why the court did not enter into deeper appreciation of evidence.
Now concerning your query. Allow me to give you a little of my analysis as well as any other query that you may have, whose answer I shall provide in this reply by anticipating the query. Now for this discussion, I must first reproduce the defection law itself.
So with the above, we can peruse that the law is that if any member resigns from his political party or joins another political party or votes or abstains against the party legislative position then he will be declared to have been defected and the member’s seat shall be declared vacant however as can be seen above, there is a process to this and this is where we see the issue arising.
The process in the constitution stated that whenever a candidate acts in such a manner then the party head shall issue him a Show-Cause Notice and then issue a declaration that he is to be removed from his party and the parliament to the presiding officer, who shall send one copy to the member and one to the election commissioner who shall then summon the member in 2 days and decide whether his action constituted defection and this shall be done in 30 days and the aggrieved party may file an appeal to the Supreme Court within 30 days.
What does this mean? Well, it means that a person can defect legally and still remain a Member of Parliament and act accordingly till his removal through the above procedure.
Now Both Fawad Chaudhary and Babar Awan have declared that the Speaker is empowered to discount the votes of any defecting candidate and immediately tell that member to vacate his seat however the constitution has not empowered the Speaker in this manner at any point both in the constitution as well as in Chapter III of the Rules of Procedure concerning the National Assembly. Yet the fact that PTI is spreading this misinformation means that PTI will once again trample over law and constitution for their own ends and will try to protect Imran but here is the thing. If the Speaker acts in such a manner then we may see this case going to court and ECP and both are annoyed with Imran and will see this action as another illegal attempt. Now, I highlighted that ECP has been annoyed with Imran and here is why? Imran has been muscling the ECP in the foreign funding case and their internal party elections and we have seen ECP crack down much harder on PTI in retaliation and this has peaked when Imran, throwing away all semblance of legislative decency, allowed officeholders to run an election by amending the ECP code of conduct and it doesn’t take a genius to understand that this will bring along the entire state’s machinery. A pathetic move in empowering the status quo from an individual who promised change. ECP has decided to not follow the code of conduct but it’s a clash that is coming to head and this was the absolute worst time for this clash to happen as ECP will be a major player in days to come. The opposition has also voiced deep concerns. In this right, ECP sees itself as protecting the Constitutional Law and PTI as the tyrannical aggressor.
Now coming to the interpretation of the law. The interpretation forwarded by PTI is ridiculous, to say the least, and this can be seen, not just from the bare perusal but also from previous judgments passed by the court. Amazingly in 2018 CLC 1202, it was argued that the procedure described in 63A actually protects the fundamental rights of an individual since they will not be arbitrarily removed but would be removed through a proper procedure where they will be given the right to trial in accordance to Article 10-A and it is a wonderful judgment on defection, no surprise since it was authored by the Peshawar High Court but it highlights the constitutional history regarding defection law as well as how the elements of the procedure actually protect the individual’s rights but also penalizes the element of floor crossing. So what happens when that procedure is not followed? What happens during the implementation of this procedure? Can he act in such a manner as a member parliamentarian? The law is absent in this regard but here we see two settled principles of law come to play which are the central aspects of interpreting statutes.
First is that nobody can interpret the law to add to the legislator which means that while the words of the legislator can be interpreted conservatively and liberally but they cannot be added into. If the legislator did not add in a penalty then no institution can substitute its own penalty in its place. The law is silent on whether that member will be considered to be a member during the aforementioned period and thus it is to be deemed that the legislative, in its wisdom, had deemed that the member shall not be suspended or removed during this period.
The second principle of law is that Penal offences are to be construed very conservatively and they cannot be expanded to include new facts and this was highlighted in the Landmark case regarding defection and it is a massive judgment since it also allowed for ad-interim relief. The judgment is 1998 PLD 1263 SC wherein the court granted interim relief stopping the state from taking action against members till the decision of the court so the alleged defectees continued to be members despite the alleged cause of action. The court held the following highlighting the conservative interpretation of the penal offence
“We are unable to agree with the submission of the learned Attorney-General, Ch. Muhammad Farooq and Mr. S. Sharifuddin Pirzada, learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1) of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in conformity with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intentment. A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament, and I for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament.”
The judgment also held that removal of membership was to happen through proper procedure and following of said procedure.
In 2018 PLD 370 the Supreme Court highlighted this limitation
“Referring to Article 63A of the Constitution, the learned ASC submitted that the said provision was incorporated in its present form in the Constitution through the Eighteenth Amendment Act, 2010. It has a limited purpose namely to act as an anti- defection measure and disqualification of a member of the parliamentary party in the event of his resignation from membership of his party, joining another party, voting or abstaining from voting in the House contrary to any direction issued by his Parliamentary Party in relation to the election of the Prime Minister or the Chief Minister or a vote of confidence or no confidence or a Money Bill or a Constitution Amendment Bill. Even in that eventuality, the learned counsel submits that the Party Head can only declare that such member had defected from his party and may forward a copy of such declaration to the Presiding Officer and the Chief Election Commissioner. The Chief Election Commissioner is required to lay the declaration before the Election Commission. If the Election Commission confirms such declaration, in that eventuality, the member in question ceases to be a member of the House. He therefore submits that the role of the Party Head under Article 63A of the Constitution is largely ceremonial for a limited purpose and it is not correct to assume that the Party Head is all powerful and can dictate and impose his will on the members of the Parliament who constitute the parliamentary party of a particular political party. He submits that the Party Head can either issue a declaration or refrain from issuing such declaration and condone any act of a member of the parliamentary party that may possibly fall within the mischief of Article 63A of the Constitution.”
A similar procedure was followed in 2018 PLD 97 SC
In 2018 PLD 300 SC it was held that an application has to be made to the ECP and nobody can be removed in such a manner without an order from ECP.
However, another Landmark judgment that cemented this procedure was 2018 SCMR 1043 and the title of the case was Imran Khan Niazi vs Ayesha Gulalai and herein the Court held that no process could be circumvented nor ignored. You see our cheeky PM and his extremely well-paid and expensive legal team acted like 500 wala lawyer and sent her a Show Cause Notice which was dated 10-08-2017 but was sent on 18-07-2018 asking her to reply within 7 days of issuance of this notice. Well what happened was that the Court adjudged that this was illegal and held the following
11. It has further been argued on behalf of the Appellant that a show cause notice was issued to the Respondent spelling out the allegations against her and calling upon her to respond to the same. However, despite receipt of the show cause notice, she failed to respond to the same and clarify her position which means that she had nothing to say in her defence and admitted the allegations mentioned in the show cause notice. In this context, the Election Commission found that although the show cause notice was dated 10.08.2017, it was dispatched through courier service on 18.08.2017. The show cause notice stated that the Respondent had to file her reply within seven days of the same. This being so, the period given to her to respond had already expired by the time the show cause notice was dispatched on 18.08.2017. There was enough material on record to indicate that the Respondent sent her reply to the show cause notice on 24.08.2017 which was received on behalf of the Party Head. Yet, the declaration issued against the Respondent on 28.08.2017 neither referred to the response to the show cause notice nor acknowledged the fact that such response had been received. On the contrary, an impression was sought to be created that the Respondent had failed to respond to the show cause notice which was incorrect. This also shows that the Respondent was neither given a reasonable opportunity to defend her position nor the stance taken by her in her response to the show cause notice even considered. The Election Commission found and we agree that the Respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the Party Head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him. It is clear and obvious from the record that the Respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights.
The appeal by Imran was dismissed but it highlights how the law has been interpreted so far and how any deviation from the process will only be another nail to the constitutional stability of the country and will be challenged in the Courts and as you can see we are here in this court. Now the argument that 63A may take penalization from Article 62 is also not a proper argument. The argument of previous Articles influencing the subsequent articles stems from the Constitutional Interpretation Rule that a Constitution is not to be read on its own but as a whole, each article influencing and impacting the other and reading Articles in isolation is a bad principle when reading a Constitution and this is a true principle however this Interpretation model clashed with another interpretation model regarding law which is, as I mentioned above, regarding the interpretation of Penal Articles and Article 63A is Penal in nature. The law is that since Penal Clauses, Sections and Articles are inherently impact the Right of an Individual, then they are to be interpreted very conservatively because the idea is to protect the right of an individual thus the expansive and liberal interpretation model concerning Constitutional Provisions is not applicable where the Article is Penal in nature and this interpretation stems from the Constitution itself since the same comes under Article 10A, Right to a Fair Trial. So one can even argue that the two models are not in conflict with each other but are supporting each other and a conservative interpretation model being applied to a Constitutional Provision is within the definition of Liberal Constitutional Interpretation which asks for expansive constitutional interpretation since 63A is being impacted by Article 10A. I hope I have not ventured too deep into law.
Now I am guessing you wish to also ask about my remarks regarding the current case in Supreme Court. First of all, I cannot, for any certainty claim that the SC XYZ judgment however through Precedents and interpretations that courts have utilized, I can make an analysis as to which why the pendulum might swing however be advised that the court may utilize “Distinguishable Facts” Doctrine and simply pass a new ruling and the circumstances are quite unprecedented. The Constitutional Articles that are under review is mainly Article 69 which deals with parliamentary privilege and I shall reproduce it here for your perusal.
Courts not to inquire into proceedings of Majlis-e-Shoora
(Parliament)
69. (1) The validity of any proceedings in 1[Majlis-e-Shoora
(Parliament)] shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of 1[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 1[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, 1[Majlis-e-Shoora (Parliament)] has the
same meaning as in Article 66.
The above, if perused highlights quite clearly that the Courts are restricted from interfering in Parliamentary procedure and this has been upheld numerous times and this principle comes under the trichotomy of power so that the legislative, which is home to elected individuals can be a place of safe haven for assembly members to discuss matters without fear of any reprisal. The topics discussed within the parliament are forbidden to be brought to the Court and this is an old principle in the Westminster parliamentary system and this is so that no elected representative be attacked and can speak freely on the issues that are plaguing the nation. Now if you would notice that the aforementioned Article states Article 66 as well which is the following
Privileges of members, etc.
66. (1) Subject to the Constitution and to the rules of procedure of 2[Majlis-e-Shoora (Parliament)], there shall be freedom of speech in 2[Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in 2[Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of 2[Majlis-e-Shoora (Parliament)] of any report, paper, votes or proceedings.
(2) In other respects, the powers, immunities and privileges of
2[Majlis-e-Shoora (Parliament)], and the immunities and privileges of the members of 2[Majlis-e-Shoora (Parliament)], shall be such as may from time to time be defined by law and, until so defined, shall be such as were, mmediately before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members.
(3) Provision may be made by law for the punishment, by a
House, of persons who refuse to give evidence or produce documents before a committee of the House when duly required by the chairman of the committee so to do :
Provided that any such law—
(a) may empower a court to punish a person who refuses to give evidence or produce documents; and
(b) shall have effect subject to such Order for safeguarding
confidential matters from disclosure as may be made by the
President.
(4) The provisions of this Article shall apply to persons who
have the right to speak in, and otherwise to take part in the proceedings of, 1[Majlis-e-Shoora (Parliament)] as they apply to members.
(5) In this Article. 1[Majlis-e-Shoora (Parliament)] means
either House or a joint sitting, or a committee thereof
It can be fairly determined that Article 69 is to be read with Article 66 and thus is home to immunity however is this immunity vast and borderless, encompassing any and all actions that take place within the parliament. The privilege given to a parliamentarian was meant to protect the parliament from authoritarian actions rather than the parliament becoming authoritarian and if today it is ruled that the speaker is an unrivalled authority who can do anything to the parliament when the parliament is in a session, then this can have negative impacts tomorrow as tomorrow any party of the PDM may win and become dictatorial and this is where the Supreme Court is struggling as it has to balance the aforementioned Articles with the principle that the Speaker is justiciable. So is the Speaker justiciable? I have seen many point to Article 69 and many have even used a PHC case law to bring forth their arguments. Unfortunately many are not lawyers and don’t understand the law. No individual is above the Constitution and any institution or individual that draws its legitimacy or power from the Constitution cannot go behind the Constitution and take unconstitutional steps but what happens if the speaker does anything unconstitutional? What remedy does an individual whose rights have been impeded by an unconstitutional act committed by the speaker has? None? Of course not and funnily enough this bench and the bench hearing 63A highlighted this fact when they stated that the speaker stopping anyone from voting would be unconstitutional and challengeable. So that means that the bench is not sold on the principle of parliamentary action immune from judicial review. Now the question is whether such an action is justiciable? Yes, it is and it has been in a number of cases. Whilst it is true that parliamentary proceedings cannot be challenged in the court of law, it is also a settled principle of law that if anyone’s fundamental rights are violated or if any organ of state takes an unconstitutional action, then the same is liable to be challenged. And if the learned legal team of the government feels differently, then we can always go through the judicial history of Article 69, which bars courts from putting the proceedings on trial and a bare perusal informs us that initially the action of the Speaker was declared non-justiciable by a majority decision in Ahmad Saeed Kirmani’s case PLD 1956 Lahore 807. However, with time, the judicial inclination tilted in favour of assuming jurisdiction and the action of the Speaker regarding the resignations of members was declared justiciable in Fazalul Quader Chaudhury’s case PLD 1966 SC 105. This view was further confirmed in Farzand Ali’s case PLD 1970 SC 98, Muhammad Anwar Durrani’s case PLD 1989 Quetta-25, Muhammad Naeem Akhtar’s case 1992 CLC 2043 and Mining Industries Pakistan’s case PLD 2006 Quetta 36. Similarly, the ruling of the Speaker of the National Assembly was also declared justiciable, declaring the same to be outside the scope of proceedings provided under Article 69 of the Constitution in Muhammad Azhar Siddiqui’s case PLD 2012 SC 774. In addition, even the administrative actions of the worthy Speaker have been declared justiciable in Shamsuddin’s case 1995 PLC (CS) 8. Interestingly, a writ of mandamus was also issued, directing the worthy Chairman to produce a member to exercise his right to vote in the Senate by the full Bench of the Sindh High Court in Asif Ali Zardari’s case PLD 1999 Karachi 54, wherein it is held that;
“It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus made immune, though subject to time honoured constrains. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by “formal transaction of business” concomitant to such internal proceedings.”
Further reliance is placed on 2011 PTD 2643 where the question related to the money bill and Article 73 which contained a similar bar ousting the power of courts and the Courts held in the aforementioned case that wherever the act is unconstitutional, its authority was not barred.
As to the ouster clause in Article 73(5) of the Constitution which provides that every Money Bill shall bear a certificate under the hand of the, Speaker of the National Assembly and the said certificate shall be conclusive for all purposes and shall not be called in question. The said ouster clause does not give protection to an unconstitutional act or an act that is without jurisdiction, corum non-judice and based on mala fide. This question stands well settled in Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), The State v. Zia-ur-Rahman and others, (PLD 1973 SC 49), Miss Asma Jilani v. The Government of the Punjab and another, (PLD 1972 SC 139), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others, (PLD 1974 SC 151), Pir Sabir Shah v. Federation of Pakistan and others, (PLD 1994 SC 738) and Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others (PLD 1966 SC 1).
Infact further reliance is placed on a very massive case which was Imran khan vs Nawaz sharif PLD 2017SC 265 wherein the Court held the following
Before referring the matter to the Election Commission, the Speaker/Chairman has 30 days to decide whether or not such question has arisen and if he decides that no such question has arisen he has the power to refuse to refer the question to the Election Commission for decision. However, the decision of the Speaker has to be made on the basis of lawful, valid and cogent reasons showing due application of mind to the facts, circumstances and material placed before the Speaker/Chairman, as the case may be. Such decision is justiciable before Courts of competent jurisdiction. If a Court of competent jurisdiction on being approached by any of the parties finds that the decision of the Speaker/Chairman is legally or factually incorrect it can set aside such decision, and pass appropriate orders in accordance with the law and the Constitution to refer the matter to the Election Commission of Pakistan.
If parliamentary proceedings were truly immune from judicial review then wouldn’t that mean that the Court couldn’t strike down any legislation passed by the parliament after all the session would be in place, majority representatives would have passed the impugned legislation and proper procedure would have followed yet how can the said legislation come under Judicial Review. Why won't the bar work here? Because if an act is unconstitutional then it is challengeable. No Article is Supreme and no individual is above the Constitution. That’s how the law has evolved and Speaker is not immune from judicial review. Heck, he has faced judicial review before. The problem here is that if the ruling is challenged then it can open a way where everybody can challenge all rulings under Article 212 of the Constitution which would make the Speaker no different than another executive organ being sued like the Chief Secretary or S&GAD and the decisions they pass which can be challenged. It's all about specific conditions and this will be an important aspect in the detailed judgment of this case.
With the above, I have concluded that the speaker is justiciable and let me give you another hint. Any lawyer that is arguing on the maintainability or Article 69 solely has picked the wrong ground to base their case on. This is not some Petition filed by XYZ on which you can discuss that it’s not maintainable status in a preliminary hearing. It’s a SUO MOTO proceeding which means that question of jurisdiction and maintainability can no longer be entertained since those questions have already been answered by the Court with a big YES WE HAVE JURISDICTION AND YES THIS IS MAINTAINABLE. So the grounds to argue must be that the speaker did a constitutional act. Infact their minds regarding the justiciable under Article 69 are already set. Whether the act is justiciable is the question. Here is the thing. Do you really think they would take SUO MOTO Action, and make a five-member bench? The same delays 1000s of cases since all of those judges would have to leave their respected benches for half the proceeding delaying the 100s of cases that were to be heard. Most of them got leftover. Leftover is when a case is not heard in a day. It is leftover and the worst thing is that unless by some luck, a date is set by the reader, 99% you have to give CM to get the case for another hearing otherwise leftover can go for years. I have a case that has been left over for years. We are not giving CM since we got the interim relief and the opposition doesn’t have documents thus left over for 5 years.
So if the Court has done such a massive step, then do you think they will end the proceedings saying, “Oops we didn’t have jurisdiction.” No, they won't.
Carrying on. The opposition has acted against the Constitution as well and frankly, the SC has given them a massive relief that nobody has noticed. When the Deputy Speaker left, the session was called off yet the opposition member Ayaz Saidq sat on the seat of the Speaker and presided over the Session. Running a parallel session is Treason because it's hijacking the parliament and holding a session when the same session had ended thus besmirching the Constitution. They simply can't do that and the fact that they did is disgusting. They got away with it and they shouldn’t have. It is clear that the Constitution has been severely violated in these past few days. By the way the Hamza election is also illegal and absurd.
Constitutions have been defined all over the world in many manners and Pakistan does not have a constitution. It has a document that we call a constitution as a means to have a front and semblance of sanctity with a semblance that it brings in security however the document is neither sacrosanct nor supreme and this is shown repeatedly and this is why we are a lawless country doomed to forever be embroiled in these absurdities.
The parliamentary debate concerning Constitutions is very important as they highlight to future lawmakers and judges on what the framers thought about the document but unfortunately, we have not received either the discipline of the constitution aka the ability to construct and frame Articles nor did we discuss the Constitutions and their amendments in a deep manner. The Indian Constitution is a good case study in this that it was the largest constitution in the world and it has imported many Articles from foreign Constitutions most notably being Ireland yet to legitimize and own those articles, it discussed each and every article in great depth with repeated discussions happening and the Indian Supreme Court often relies on those debates to interpret and understand the mind of the framer. A luxury we don’t have since we constructed a Constitution without undergoing the proper debates. We imported articles without any understanding behind those articles and what impact they will have on the state and the trichotomy of power. For God’s Sake, we passed the 18th amendment that changed over 1/3rd of the Constitution and it was barely discussed under the garb of unanimous passage. Discussion is extremely important and we are so undisciplined that we can't even do that.
Lastly are all of you aware of another Article that bars Courts from looking into parliamentary proceedings? Passed under Zia its Article 239 which bars the court from questioning any law passed by the parliament and declares that parliament is most powerful and unquestionable. This was passed by Zia. The Court interpreted the Article in Case law PLD 2015 SC 401, I believe wherein it stated that the word COURT does not include the Supreme Court but the High Court and the other Courts of law however the Supreme Court does not come under the definition of COURT since the constitution, wherever it mentioned the Supreme Court, mentioned it as SUPREME COURT and not as COURT thus the Constitutional bars are on High Courts and other lower Courts but not the Supreme Courts and the power of judicial review cannot be impacted in any way possible.
I don’t know what decision the SC will pass but this is what has happened so far and how the law has evolved. I hope this was helpful.
FURTHER SUBMISSION
In the words of the Supreme Court itself in PLD 2015 SC 401
It is well settled that whenever there is a particular enactment and a general enactment, which, taken in its most comprehensive sense would overrule the former, the particular enactment would prevail. The Constitution specifically mentions the Supreme Court and ousts its jurisdiction in some Articles, but in other places, it simply mentions ‘any court’. Under such circumstances when a clear distinction between terms is being drawn, the general ouster clause (‘any court’) cannot be construed to include the Supreme Court. There is another established principle that every part and every word of the Constitution is significant and an interpretation that renders any word or provision meaningless must be avoided; therefore, if we discard the words ‘Supreme Court’ (mentioned in Article 203G and clause (7) of Article 247) and/or import the same into Article 239(5), which uses the words ‘any court’ the stated principle of interpretation stands violated. The Constitution has at places ousted the jurisdiction of ‘any court’ and in other places excluded the jurisdiction of all courts ‘including the Supreme Court’ (Article 203G) or specifically restrained ‘the Supreme Court’ from exercising jurisdiction (clause (7) of Article 247), therefore, we must give effect to this clear intent of the Constitution. When we examine the Constitution as a whole, to ascertain the correct meaning of Article 239(5), no doubt is left that it does not oust the jurisdiction of the Supreme Court. (Reference by the President, PLD 1957 Supreme Court 219, Fazlul Quader Chowdhry v. Muhammad Abdul Haque, PLD 1963 Supreme Court 486, Federation of Pakistan v. Ghulam Mustafa Khar, PLD 1989 Supreme Court 26, and Hakim Khan v. Government of Pakistan, PLD 1992 Supreme Court 595 are only a few precedents amongst numerous others that recognize the aforestated rules of interpretation) Conclusion on Jurisdiction 7. The Constitution mentions the Supreme Court by name when the jurisdiction of the Supreme Court is to be ousted, but when it does not mention the Supreme Court, jurisdiction is not ousted. The learned Attorney-General, however, wants to undermine the perspicuous skills of those who drafted the Constitution, but we must not in any manner attribute to the framers of the Constitution lack of clarity or a propensity to obfuscate meaning. Thus, the answer to the first question, whether the term ‘any court’ used in Article 239(5) includes the Supreme Court, stands answered in the negative.
Judicial Review has been jealously guarded by the Supreme Court and the SC has always answered in negative wherever its jurisdiction was to be declared as completely ousted. The aforementioned Case is a landmark judgment and if the Court can declare that it can strike down constitutional amendments on the basis of its constitutionality then it can most certainly entertain the unconstitutionality of the speaker.
Going a bit further and forward regarding this matter, a question has been repeatedly asked as to how the SC was able to declare that it had no jurisdiction to entertain an earlier petition, yet the very next day took action. As you all might have noticed that the same was not spoken of during arguments by any of the lawyers. Nobody reminded the court as to why it had taken two completely opposite actions on the same matter. The reason is that they knew that the matter was not the same. The Petition filed was inherently illegal because of the relief it sought. First of all the Courts had not objected, the registrar had. When you file a Case, you need to first send it to the Registrar aka the Dair ge office and there they will see if the plaint is correct and all documents are properly attached. Ofcourse in Supreme Court, there is a lot of scrutiny and you undergo the test of plaint infront of the registrar who can say the plaint is not right or relief sought is barred. For example if my tenant is not leaving and I immediately go to the Supreme Court then the registrar will object and say no this is not the correct forum. This case cant be filed here. When you go to courts, you need to end the plaint with a prayer and there you ask for relief but lets say that I filed a case for restitution of conjugal rights aka I want my wife to come back to me and within it I make the prayer that rather than I want the wife to return, I want her to give me the house and her haq mehr. The Suit is defunct and objection will be raised that the prayer is flawed. In Civil this may happen in front of judge but in Supreme Court, there is a lot more scrutiny. The lawyer in question had filed a petition stating that the no confidence motion needs to be suspended and the court needs to interfere due to the presence of the letter. The Court obviously would be barred under Article 69 since the prayer demands direct interference by Court when no unconstitutional action has happened nor has the same been acted upon. How could the court declare a constitutional process of no confidence to be suspended when no procedural illegality had happened yet? Did the numbers who signed were less than required? Where their signatures coerced? Was the resolution not presented? How could the court interfere when nothing unconstitutional had happened however a day later an act had happened whose nature was deemed to be unconstitutional by many including the judges and as it was seen in the proceedings that the Judges focused on the constitutionality of the act. The difference is night and day. One is a petition seeking relief based on conjecture of happening to go against the bar, a very serious act and one is to adjudge whether an act was constitutional or not. Two very different things which is why the lawyers did not bring this point in their arguments for it is better to not take a ground then to take a very weak and rebuttable ground. Ruins the argument.
Lastly I am seeing as to why the Courts did not look into deeper appreciation of evidence. Well what the Court was thinking is for the Court to write in their detailed judgment but I believe it had to do with the Attorney General. This is my analysis but I think the Attorney General said something that he should not have said. In law, there is a principle which is that “admitted facts need not be proven”. This is that if a party admits anything in the plaint ot during the proceedings then they cannot backtrack and this will be deemed as admission. It’s a massive maxim and its in QSO as well. There are thousands of case laws on this. Normally when there is a plaint, there is a written statement/Reply and there you take each paragraph and expressly and clearly deny each aversion of the plaint because if there is any ambiguity then it will come under admitted facts need not be proven. When there is no plaint or when there is no reply then lawyers need to be extra careful in their arguments that they don’t say anything that will hit the critical Maxim. AG stated that the court can interfere in the event of unconstitutionality and then did not contend that the ruling was illegal or not. He did not defend the ruling and repeatedly held that he was supporting new elections. This is a serious oversight from a such a top lawyer but a lawyer can only defend what his client wants. Most likely they simply wanted him to get the relief of new elections. He may succeed in that but in doing so he went down the admitted facts maxim route and the court held that if the government also believes, since AG will always represent the government and you cannot go against your representative in court as what he says is considered to be your position, then there was no need for deep appreciation of evidence. Ofcourse I could be wrong and the court may have come to completely different conclusions. You guys can argue but this is how the law has evolved and this is how the constitution has been interpreted.
@Chak Bamu @Jungibaaz @SQ8 @jaibi @Jango @PanzerKiel @M. Sarmad @Joe Shearer @AgNoStiC MuSliM @That Guy
Now concerning your query. Allow me to give you a little of my analysis as well as any other query that you may have, whose answer I shall provide in this reply by anticipating the query. Now for this discussion, I must first reproduce the defection law itself.
| 63A. | Disqualification on grounds of defection, etc.
|
So with the above, we can peruse that the law is that if any member resigns from his political party or joins another political party or votes or abstains against the party legislative position then he will be declared to have been defected and the member’s seat shall be declared vacant however as can be seen above, there is a process to this and this is where we see the issue arising.
The process in the constitution stated that whenever a candidate acts in such a manner then the party head shall issue him a Show-Cause Notice and then issue a declaration that he is to be removed from his party and the parliament to the presiding officer, who shall send one copy to the member and one to the election commissioner who shall then summon the member in 2 days and decide whether his action constituted defection and this shall be done in 30 days and the aggrieved party may file an appeal to the Supreme Court within 30 days.
What does this mean? Well, it means that a person can defect legally and still remain a Member of Parliament and act accordingly till his removal through the above procedure.
Now Both Fawad Chaudhary and Babar Awan have declared that the Speaker is empowered to discount the votes of any defecting candidate and immediately tell that member to vacate his seat however the constitution has not empowered the Speaker in this manner at any point both in the constitution as well as in Chapter III of the Rules of Procedure concerning the National Assembly. Yet the fact that PTI is spreading this misinformation means that PTI will once again trample over law and constitution for their own ends and will try to protect Imran but here is the thing. If the Speaker acts in such a manner then we may see this case going to court and ECP and both are annoyed with Imran and will see this action as another illegal attempt. Now, I highlighted that ECP has been annoyed with Imran and here is why? Imran has been muscling the ECP in the foreign funding case and their internal party elections and we have seen ECP crack down much harder on PTI in retaliation and this has peaked when Imran, throwing away all semblance of legislative decency, allowed officeholders to run an election by amending the ECP code of conduct and it doesn’t take a genius to understand that this will bring along the entire state’s machinery. A pathetic move in empowering the status quo from an individual who promised change. ECP has decided to not follow the code of conduct but it’s a clash that is coming to head and this was the absolute worst time for this clash to happen as ECP will be a major player in days to come. The opposition has also voiced deep concerns. In this right, ECP sees itself as protecting the Constitutional Law and PTI as the tyrannical aggressor.
Now coming to the interpretation of the law. The interpretation forwarded by PTI is ridiculous, to say the least, and this can be seen, not just from the bare perusal but also from previous judgments passed by the court. Amazingly in 2018 CLC 1202, it was argued that the procedure described in 63A actually protects the fundamental rights of an individual since they will not be arbitrarily removed but would be removed through a proper procedure where they will be given the right to trial in accordance to Article 10-A and it is a wonderful judgment on defection, no surprise since it was authored by the Peshawar High Court but it highlights the constitutional history regarding defection law as well as how the elements of the procedure actually protect the individual’s rights but also penalizes the element of floor crossing. So what happens when that procedure is not followed? What happens during the implementation of this procedure? Can he act in such a manner as a member parliamentarian? The law is absent in this regard but here we see two settled principles of law come to play which are the central aspects of interpreting statutes.
First is that nobody can interpret the law to add to the legislator which means that while the words of the legislator can be interpreted conservatively and liberally but they cannot be added into. If the legislator did not add in a penalty then no institution can substitute its own penalty in its place. The law is silent on whether that member will be considered to be a member during the aforementioned period and thus it is to be deemed that the legislative, in its wisdom, had deemed that the member shall not be suspended or removed during this period.
The second principle of law is that Penal offences are to be construed very conservatively and they cannot be expanded to include new facts and this was highlighted in the Landmark case regarding defection and it is a massive judgment since it also allowed for ad-interim relief. The judgment is 1998 PLD 1263 SC wherein the court granted interim relief stopping the state from taking action against members till the decision of the court so the alleged defectees continued to be members despite the alleged cause of action. The court held the following highlighting the conservative interpretation of the penal offence
“We are unable to agree with the submission of the learned Attorney-General, Ch. Muhammad Farooq and Mr. S. Sharifuddin Pirzada, learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1) of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in conformity with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intentment. A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament, and I for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament.”
The judgment also held that removal of membership was to happen through proper procedure and following of said procedure.
In 2018 PLD 370 the Supreme Court highlighted this limitation
“Referring to Article 63A of the Constitution, the learned ASC submitted that the said provision was incorporated in its present form in the Constitution through the Eighteenth Amendment Act, 2010. It has a limited purpose namely to act as an anti- defection measure and disqualification of a member of the parliamentary party in the event of his resignation from membership of his party, joining another party, voting or abstaining from voting in the House contrary to any direction issued by his Parliamentary Party in relation to the election of the Prime Minister or the Chief Minister or a vote of confidence or no confidence or a Money Bill or a Constitution Amendment Bill. Even in that eventuality, the learned counsel submits that the Party Head can only declare that such member had defected from his party and may forward a copy of such declaration to the Presiding Officer and the Chief Election Commissioner. The Chief Election Commissioner is required to lay the declaration before the Election Commission. If the Election Commission confirms such declaration, in that eventuality, the member in question ceases to be a member of the House. He therefore submits that the role of the Party Head under Article 63A of the Constitution is largely ceremonial for a limited purpose and it is not correct to assume that the Party Head is all powerful and can dictate and impose his will on the members of the Parliament who constitute the parliamentary party of a particular political party. He submits that the Party Head can either issue a declaration or refrain from issuing such declaration and condone any act of a member of the parliamentary party that may possibly fall within the mischief of Article 63A of the Constitution.”
A similar procedure was followed in 2018 PLD 97 SC
In 2018 PLD 300 SC it was held that an application has to be made to the ECP and nobody can be removed in such a manner without an order from ECP.
However, another Landmark judgment that cemented this procedure was 2018 SCMR 1043 and the title of the case was Imran Khan Niazi vs Ayesha Gulalai and herein the Court held that no process could be circumvented nor ignored. You see our cheeky PM and his extremely well-paid and expensive legal team acted like 500 wala lawyer and sent her a Show Cause Notice which was dated 10-08-2017 but was sent on 18-07-2018 asking her to reply within 7 days of issuance of this notice. Well what happened was that the Court adjudged that this was illegal and held the following
11. It has further been argued on behalf of the Appellant that a show cause notice was issued to the Respondent spelling out the allegations against her and calling upon her to respond to the same. However, despite receipt of the show cause notice, she failed to respond to the same and clarify her position which means that she had nothing to say in her defence and admitted the allegations mentioned in the show cause notice. In this context, the Election Commission found that although the show cause notice was dated 10.08.2017, it was dispatched through courier service on 18.08.2017. The show cause notice stated that the Respondent had to file her reply within seven days of the same. This being so, the period given to her to respond had already expired by the time the show cause notice was dispatched on 18.08.2017. There was enough material on record to indicate that the Respondent sent her reply to the show cause notice on 24.08.2017 which was received on behalf of the Party Head. Yet, the declaration issued against the Respondent on 28.08.2017 neither referred to the response to the show cause notice nor acknowledged the fact that such response had been received. On the contrary, an impression was sought to be created that the Respondent had failed to respond to the show cause notice which was incorrect. This also shows that the Respondent was neither given a reasonable opportunity to defend her position nor the stance taken by her in her response to the show cause notice even considered. The Election Commission found and we agree that the Respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the Party Head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him. It is clear and obvious from the record that the Respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights.
The appeal by Imran was dismissed but it highlights how the law has been interpreted so far and how any deviation from the process will only be another nail to the constitutional stability of the country and will be challenged in the Courts and as you can see we are here in this court. Now the argument that 63A may take penalization from Article 62 is also not a proper argument. The argument of previous Articles influencing the subsequent articles stems from the Constitutional Interpretation Rule that a Constitution is not to be read on its own but as a whole, each article influencing and impacting the other and reading Articles in isolation is a bad principle when reading a Constitution and this is a true principle however this Interpretation model clashed with another interpretation model regarding law which is, as I mentioned above, regarding the interpretation of Penal Articles and Article 63A is Penal in nature. The law is that since Penal Clauses, Sections and Articles are inherently impact the Right of an Individual, then they are to be interpreted very conservatively because the idea is to protect the right of an individual thus the expansive and liberal interpretation model concerning Constitutional Provisions is not applicable where the Article is Penal in nature and this interpretation stems from the Constitution itself since the same comes under Article 10A, Right to a Fair Trial. So one can even argue that the two models are not in conflict with each other but are supporting each other and a conservative interpretation model being applied to a Constitutional Provision is within the definition of Liberal Constitutional Interpretation which asks for expansive constitutional interpretation since 63A is being impacted by Article 10A. I hope I have not ventured too deep into law.
Now I am guessing you wish to also ask about my remarks regarding the current case in Supreme Court. First of all, I cannot, for any certainty claim that the SC XYZ judgment however through Precedents and interpretations that courts have utilized, I can make an analysis as to which why the pendulum might swing however be advised that the court may utilize “Distinguishable Facts” Doctrine and simply pass a new ruling and the circumstances are quite unprecedented. The Constitutional Articles that are under review is mainly Article 69 which deals with parliamentary privilege and I shall reproduce it here for your perusal.
Courts not to inquire into proceedings of Majlis-e-Shoora
(Parliament)
69. (1) The validity of any proceedings in 1[Majlis-e-Shoora
(Parliament)] shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of 1[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 1[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, 1[Majlis-e-Shoora (Parliament)] has the
same meaning as in Article 66.
The above, if perused highlights quite clearly that the Courts are restricted from interfering in Parliamentary procedure and this has been upheld numerous times and this principle comes under the trichotomy of power so that the legislative, which is home to elected individuals can be a place of safe haven for assembly members to discuss matters without fear of any reprisal. The topics discussed within the parliament are forbidden to be brought to the Court and this is an old principle in the Westminster parliamentary system and this is so that no elected representative be attacked and can speak freely on the issues that are plaguing the nation. Now if you would notice that the aforementioned Article states Article 66 as well which is the following
Privileges of members, etc.
66. (1) Subject to the Constitution and to the rules of procedure of 2[Majlis-e-Shoora (Parliament)], there shall be freedom of speech in 2[Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in 2[Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of 2[Majlis-e-Shoora (Parliament)] of any report, paper, votes or proceedings.
(2) In other respects, the powers, immunities and privileges of
2[Majlis-e-Shoora (Parliament)], and the immunities and privileges of the members of 2[Majlis-e-Shoora (Parliament)], shall be such as may from time to time be defined by law and, until so defined, shall be such as were, mmediately before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members.
(3) Provision may be made by law for the punishment, by a
House, of persons who refuse to give evidence or produce documents before a committee of the House when duly required by the chairman of the committee so to do :
Provided that any such law—
(a) may empower a court to punish a person who refuses to give evidence or produce documents; and
(b) shall have effect subject to such Order for safeguarding
confidential matters from disclosure as may be made by the
President.
(4) The provisions of this Article shall apply to persons who
have the right to speak in, and otherwise to take part in the proceedings of, 1[Majlis-e-Shoora (Parliament)] as they apply to members.
(5) In this Article. 1[Majlis-e-Shoora (Parliament)] means
either House or a joint sitting, or a committee thereof
It can be fairly determined that Article 69 is to be read with Article 66 and thus is home to immunity however is this immunity vast and borderless, encompassing any and all actions that take place within the parliament. The privilege given to a parliamentarian was meant to protect the parliament from authoritarian actions rather than the parliament becoming authoritarian and if today it is ruled that the speaker is an unrivalled authority who can do anything to the parliament when the parliament is in a session, then this can have negative impacts tomorrow as tomorrow any party of the PDM may win and become dictatorial and this is where the Supreme Court is struggling as it has to balance the aforementioned Articles with the principle that the Speaker is justiciable. So is the Speaker justiciable? I have seen many point to Article 69 and many have even used a PHC case law to bring forth their arguments. Unfortunately many are not lawyers and don’t understand the law. No individual is above the Constitution and any institution or individual that draws its legitimacy or power from the Constitution cannot go behind the Constitution and take unconstitutional steps but what happens if the speaker does anything unconstitutional? What remedy does an individual whose rights have been impeded by an unconstitutional act committed by the speaker has? None? Of course not and funnily enough this bench and the bench hearing 63A highlighted this fact when they stated that the speaker stopping anyone from voting would be unconstitutional and challengeable. So that means that the bench is not sold on the principle of parliamentary action immune from judicial review. Now the question is whether such an action is justiciable? Yes, it is and it has been in a number of cases. Whilst it is true that parliamentary proceedings cannot be challenged in the court of law, it is also a settled principle of law that if anyone’s fundamental rights are violated or if any organ of state takes an unconstitutional action, then the same is liable to be challenged. And if the learned legal team of the government feels differently, then we can always go through the judicial history of Article 69, which bars courts from putting the proceedings on trial and a bare perusal informs us that initially the action of the Speaker was declared non-justiciable by a majority decision in Ahmad Saeed Kirmani’s case PLD 1956 Lahore 807. However, with time, the judicial inclination tilted in favour of assuming jurisdiction and the action of the Speaker regarding the resignations of members was declared justiciable in Fazalul Quader Chaudhury’s case PLD 1966 SC 105. This view was further confirmed in Farzand Ali’s case PLD 1970 SC 98, Muhammad Anwar Durrani’s case PLD 1989 Quetta-25, Muhammad Naeem Akhtar’s case 1992 CLC 2043 and Mining Industries Pakistan’s case PLD 2006 Quetta 36. Similarly, the ruling of the Speaker of the National Assembly was also declared justiciable, declaring the same to be outside the scope of proceedings provided under Article 69 of the Constitution in Muhammad Azhar Siddiqui’s case PLD 2012 SC 774. In addition, even the administrative actions of the worthy Speaker have been declared justiciable in Shamsuddin’s case 1995 PLC (CS) 8. Interestingly, a writ of mandamus was also issued, directing the worthy Chairman to produce a member to exercise his right to vote in the Senate by the full Bench of the Sindh High Court in Asif Ali Zardari’s case PLD 1999 Karachi 54, wherein it is held that;
“It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus made immune, though subject to time honoured constrains. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by “formal transaction of business” concomitant to such internal proceedings.”
Further reliance is placed on 2011 PTD 2643 where the question related to the money bill and Article 73 which contained a similar bar ousting the power of courts and the Courts held in the aforementioned case that wherever the act is unconstitutional, its authority was not barred.
As to the ouster clause in Article 73(5) of the Constitution which provides that every Money Bill shall bear a certificate under the hand of the, Speaker of the National Assembly and the said certificate shall be conclusive for all purposes and shall not be called in question. The said ouster clause does not give protection to an unconstitutional act or an act that is without jurisdiction, corum non-judice and based on mala fide. This question stands well settled in Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), The State v. Zia-ur-Rahman and others, (PLD 1973 SC 49), Miss Asma Jilani v. The Government of the Punjab and another, (PLD 1972 SC 139), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others, (PLD 1974 SC 151), Pir Sabir Shah v. Federation of Pakistan and others, (PLD 1994 SC 738) and Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others (PLD 1966 SC 1).
Infact further reliance is placed on a very massive case which was Imran khan vs Nawaz sharif PLD 2017SC 265 wherein the Court held the following
Before referring the matter to the Election Commission, the Speaker/Chairman has 30 days to decide whether or not such question has arisen and if he decides that no such question has arisen he has the power to refuse to refer the question to the Election Commission for decision. However, the decision of the Speaker has to be made on the basis of lawful, valid and cogent reasons showing due application of mind to the facts, circumstances and material placed before the Speaker/Chairman, as the case may be. Such decision is justiciable before Courts of competent jurisdiction. If a Court of competent jurisdiction on being approached by any of the parties finds that the decision of the Speaker/Chairman is legally or factually incorrect it can set aside such decision, and pass appropriate orders in accordance with the law and the Constitution to refer the matter to the Election Commission of Pakistan.
If parliamentary proceedings were truly immune from judicial review then wouldn’t that mean that the Court couldn’t strike down any legislation passed by the parliament after all the session would be in place, majority representatives would have passed the impugned legislation and proper procedure would have followed yet how can the said legislation come under Judicial Review. Why won't the bar work here? Because if an act is unconstitutional then it is challengeable. No Article is Supreme and no individual is above the Constitution. That’s how the law has evolved and Speaker is not immune from judicial review. Heck, he has faced judicial review before. The problem here is that if the ruling is challenged then it can open a way where everybody can challenge all rulings under Article 212 of the Constitution which would make the Speaker no different than another executive organ being sued like the Chief Secretary or S&GAD and the decisions they pass which can be challenged. It's all about specific conditions and this will be an important aspect in the detailed judgment of this case.
With the above, I have concluded that the speaker is justiciable and let me give you another hint. Any lawyer that is arguing on the maintainability or Article 69 solely has picked the wrong ground to base their case on. This is not some Petition filed by XYZ on which you can discuss that it’s not maintainable status in a preliminary hearing. It’s a SUO MOTO proceeding which means that question of jurisdiction and maintainability can no longer be entertained since those questions have already been answered by the Court with a big YES WE HAVE JURISDICTION AND YES THIS IS MAINTAINABLE. So the grounds to argue must be that the speaker did a constitutional act. Infact their minds regarding the justiciable under Article 69 are already set. Whether the act is justiciable is the question. Here is the thing. Do you really think they would take SUO MOTO Action, and make a five-member bench? The same delays 1000s of cases since all of those judges would have to leave their respected benches for half the proceeding delaying the 100s of cases that were to be heard. Most of them got leftover. Leftover is when a case is not heard in a day. It is leftover and the worst thing is that unless by some luck, a date is set by the reader, 99% you have to give CM to get the case for another hearing otherwise leftover can go for years. I have a case that has been left over for years. We are not giving CM since we got the interim relief and the opposition doesn’t have documents thus left over for 5 years.
So if the Court has done such a massive step, then do you think they will end the proceedings saying, “Oops we didn’t have jurisdiction.” No, they won't.
Carrying on. The opposition has acted against the Constitution as well and frankly, the SC has given them a massive relief that nobody has noticed. When the Deputy Speaker left, the session was called off yet the opposition member Ayaz Saidq sat on the seat of the Speaker and presided over the Session. Running a parallel session is Treason because it's hijacking the parliament and holding a session when the same session had ended thus besmirching the Constitution. They simply can't do that and the fact that they did is disgusting. They got away with it and they shouldn’t have. It is clear that the Constitution has been severely violated in these past few days. By the way the Hamza election is also illegal and absurd.
Constitutions have been defined all over the world in many manners and Pakistan does not have a constitution. It has a document that we call a constitution as a means to have a front and semblance of sanctity with a semblance that it brings in security however the document is neither sacrosanct nor supreme and this is shown repeatedly and this is why we are a lawless country doomed to forever be embroiled in these absurdities.
The parliamentary debate concerning Constitutions is very important as they highlight to future lawmakers and judges on what the framers thought about the document but unfortunately, we have not received either the discipline of the constitution aka the ability to construct and frame Articles nor did we discuss the Constitutions and their amendments in a deep manner. The Indian Constitution is a good case study in this that it was the largest constitution in the world and it has imported many Articles from foreign Constitutions most notably being Ireland yet to legitimize and own those articles, it discussed each and every article in great depth with repeated discussions happening and the Indian Supreme Court often relies on those debates to interpret and understand the mind of the framer. A luxury we don’t have since we constructed a Constitution without undergoing the proper debates. We imported articles without any understanding behind those articles and what impact they will have on the state and the trichotomy of power. For God’s Sake, we passed the 18th amendment that changed over 1/3rd of the Constitution and it was barely discussed under the garb of unanimous passage. Discussion is extremely important and we are so undisciplined that we can't even do that.
Lastly are all of you aware of another Article that bars Courts from looking into parliamentary proceedings? Passed under Zia its Article 239 which bars the court from questioning any law passed by the parliament and declares that parliament is most powerful and unquestionable. This was passed by Zia. The Court interpreted the Article in Case law PLD 2015 SC 401, I believe wherein it stated that the word COURT does not include the Supreme Court but the High Court and the other Courts of law however the Supreme Court does not come under the definition of COURT since the constitution, wherever it mentioned the Supreme Court, mentioned it as SUPREME COURT and not as COURT thus the Constitutional bars are on High Courts and other lower Courts but not the Supreme Courts and the power of judicial review cannot be impacted in any way possible.
I don’t know what decision the SC will pass but this is what has happened so far and how the law has evolved. I hope this was helpful.
FURTHER SUBMISSION
In the words of the Supreme Court itself in PLD 2015 SC 401
It is well settled that whenever there is a particular enactment and a general enactment, which, taken in its most comprehensive sense would overrule the former, the particular enactment would prevail. The Constitution specifically mentions the Supreme Court and ousts its jurisdiction in some Articles, but in other places, it simply mentions ‘any court’. Under such circumstances when a clear distinction between terms is being drawn, the general ouster clause (‘any court’) cannot be construed to include the Supreme Court. There is another established principle that every part and every word of the Constitution is significant and an interpretation that renders any word or provision meaningless must be avoided; therefore, if we discard the words ‘Supreme Court’ (mentioned in Article 203G and clause (7) of Article 247) and/or import the same into Article 239(5), which uses the words ‘any court’ the stated principle of interpretation stands violated. The Constitution has at places ousted the jurisdiction of ‘any court’ and in other places excluded the jurisdiction of all courts ‘including the Supreme Court’ (Article 203G) or specifically restrained ‘the Supreme Court’ from exercising jurisdiction (clause (7) of Article 247), therefore, we must give effect to this clear intent of the Constitution. When we examine the Constitution as a whole, to ascertain the correct meaning of Article 239(5), no doubt is left that it does not oust the jurisdiction of the Supreme Court. (Reference by the President, PLD 1957 Supreme Court 219, Fazlul Quader Chowdhry v. Muhammad Abdul Haque, PLD 1963 Supreme Court 486, Federation of Pakistan v. Ghulam Mustafa Khar, PLD 1989 Supreme Court 26, and Hakim Khan v. Government of Pakistan, PLD 1992 Supreme Court 595 are only a few precedents amongst numerous others that recognize the aforestated rules of interpretation) Conclusion on Jurisdiction 7. The Constitution mentions the Supreme Court by name when the jurisdiction of the Supreme Court is to be ousted, but when it does not mention the Supreme Court, jurisdiction is not ousted. The learned Attorney-General, however, wants to undermine the perspicuous skills of those who drafted the Constitution, but we must not in any manner attribute to the framers of the Constitution lack of clarity or a propensity to obfuscate meaning. Thus, the answer to the first question, whether the term ‘any court’ used in Article 239(5) includes the Supreme Court, stands answered in the negative.
Judicial Review has been jealously guarded by the Supreme Court and the SC has always answered in negative wherever its jurisdiction was to be declared as completely ousted. The aforementioned Case is a landmark judgment and if the Court can declare that it can strike down constitutional amendments on the basis of its constitutionality then it can most certainly entertain the unconstitutionality of the speaker.
Going a bit further and forward regarding this matter, a question has been repeatedly asked as to how the SC was able to declare that it had no jurisdiction to entertain an earlier petition, yet the very next day took action. As you all might have noticed that the same was not spoken of during arguments by any of the lawyers. Nobody reminded the court as to why it had taken two completely opposite actions on the same matter. The reason is that they knew that the matter was not the same. The Petition filed was inherently illegal because of the relief it sought. First of all the Courts had not objected, the registrar had. When you file a Case, you need to first send it to the Registrar aka the Dair ge office and there they will see if the plaint is correct and all documents are properly attached. Ofcourse in Supreme Court, there is a lot of scrutiny and you undergo the test of plaint infront of the registrar who can say the plaint is not right or relief sought is barred. For example if my tenant is not leaving and I immediately go to the Supreme Court then the registrar will object and say no this is not the correct forum. This case cant be filed here. When you go to courts, you need to end the plaint with a prayer and there you ask for relief but lets say that I filed a case for restitution of conjugal rights aka I want my wife to come back to me and within it I make the prayer that rather than I want the wife to return, I want her to give me the house and her haq mehr. The Suit is defunct and objection will be raised that the prayer is flawed. In Civil this may happen in front of judge but in Supreme Court, there is a lot more scrutiny. The lawyer in question had filed a petition stating that the no confidence motion needs to be suspended and the court needs to interfere due to the presence of the letter. The Court obviously would be barred under Article 69 since the prayer demands direct interference by Court when no unconstitutional action has happened nor has the same been acted upon. How could the court declare a constitutional process of no confidence to be suspended when no procedural illegality had happened yet? Did the numbers who signed were less than required? Where their signatures coerced? Was the resolution not presented? How could the court interfere when nothing unconstitutional had happened however a day later an act had happened whose nature was deemed to be unconstitutional by many including the judges and as it was seen in the proceedings that the Judges focused on the constitutionality of the act. The difference is night and day. One is a petition seeking relief based on conjecture of happening to go against the bar, a very serious act and one is to adjudge whether an act was constitutional or not. Two very different things which is why the lawyers did not bring this point in their arguments for it is better to not take a ground then to take a very weak and rebuttable ground. Ruins the argument.
Lastly I am seeing as to why the Courts did not look into deeper appreciation of evidence. Well what the Court was thinking is for the Court to write in their detailed judgment but I believe it had to do with the Attorney General. This is my analysis but I think the Attorney General said something that he should not have said. In law, there is a principle which is that “admitted facts need not be proven”. This is that if a party admits anything in the plaint ot during the proceedings then they cannot backtrack and this will be deemed as admission. It’s a massive maxim and its in QSO as well. There are thousands of case laws on this. Normally when there is a plaint, there is a written statement/Reply and there you take each paragraph and expressly and clearly deny each aversion of the plaint because if there is any ambiguity then it will come under admitted facts need not be proven. When there is no plaint or when there is no reply then lawyers need to be extra careful in their arguments that they don’t say anything that will hit the critical Maxim. AG stated that the court can interfere in the event of unconstitutionality and then did not contend that the ruling was illegal or not. He did not defend the ruling and repeatedly held that he was supporting new elections. This is a serious oversight from a such a top lawyer but a lawyer can only defend what his client wants. Most likely they simply wanted him to get the relief of new elections. He may succeed in that but in doing so he went down the admitted facts maxim route and the court held that if the government also believes, since AG will always represent the government and you cannot go against your representative in court as what he says is considered to be your position, then there was no need for deep appreciation of evidence. Ofcourse I could be wrong and the court may have come to completely different conclusions. You guys can argue but this is how the law has evolved and this is how the constitution has been interpreted.
@Chak Bamu @Jungibaaz @SQ8 @jaibi @Jango @PanzerKiel @M. Sarmad @Joe Shearer @AgNoStiC MuSliM @That Guy
