The Speaker has spoken

The question that logically follows is whether the honourable Speaker could have ‘constitutionally’ done what she did.

Jahanzeb Awan May 27, 2012
In light of the short order announced by the Supreme Court in Criminal Original petition no. 06 of 2012 in suo motu case No. 04 of 2010 on April 26, 2012, I maintain:

(a) the disqualification of Mr Gilani was instant upon him being convicted by the Supreme Court of Pakistan;

(b) Neither the Speaker nor the Election Commission of Pakistan can sit in judgment over the order passed by the Supreme Court. The ECP can simply notify that a seat has fallen vacant as a result of the disqualification of Mr Gilani; and

(c) Mr Gilani would not be able to stand in the next elections due to his conviction and therefore would not get a second chance of being first among equals; not at least in the government formed after the next elections.

The Speaker received a copy of the short order and the detailed judgment from the Supreme Court and in addition thereto also received a reference from Moulvi Iqbal Haider that the question of the disqualification of Mr Gilani be referred to the ECP.

Lo and behold, the honourable Speaker has given a ruling which holds that since ‘no specific charge regarding the propagation of any opinion or acting in any manner against the independence of the judiciary or defaming or ridiculing the judiciary’ under Article 63 (1) (g) was framed by the Supreme Court, in her view,
The charges against Syed Yousuf Raza Gilani, for which conviction has been handed down, are not relatable to the grounds mentioned in paragraph (g) or (h) of clause (1) of Article 63.

Hence, he does not stand disqualified.

In other words, the honourable Speaker has sat in judgment over the order passed by the Supreme Court.

The question that logically follows is: does our constitution allow the honourable Speaker to have done so?

The answer is in the negative.

The 18th Amendment to the Constitution of Pakistan 1973 made a material change to Article 63 of the constitution.

In its previous form, the question of whether a person was guilty of any of the charges contained in Article 63 (1) (g) had to be determined in accordance with Article 63 (2) and Article 63 (3) of the Constitution.  However, post the18th Amendment this is no longer the case. Article 63 (1) (g) only comes into play if a court of competent jurisdiction has already convicted a person.

Therefore, the honourable Speaker or the ECP cannot embark on an inquiry and make a determination in this regard. The determination has already been made and, therefore, there is no question of a question arising (which requires determination) anymore.

The PPP cannot, sadly, blame anyone but itself for the 18th Amendment which (as we are reminded everyday) was and is a gift of the PPP to the nation.

What about the judgment of the Lahore High Court (delivered in the mid-1990s) and the Supreme Court (delivered in 2005) that the office of the Speaker is not merely that of a post offic,e and that the Speaker is bound to apply her mind judiciously in every case?

Well, in every case that does require determination (for example, whether a person has obtained a loan from a bank which remains unpaid for over a year or whether he got it written off) the Speaker has to make that determination. However, when a determination has already been made by a court of competent jurisdiction, then the Speaker cannot embark on a detailed exposition to determine it, especially when the Supreme Court has given a clear cut finding in this regard.

Last but not the least, does willful flouting of the orders of the Supreme Court or disregarding them or disobeying them, compromise the integrity or the independence of the judiciary, or defame it or bring it ridicule?

Ostensibly not, as per the ‘ruling’ of the Speaker.

This revolutionary interpretation, by the honourable Speaker, has given a new dimension to the expression commonly known as the rule of law.

Read more by Jahanzeb here, or follow him on Twitter @jahanzebawan
WRITTEN BY:
Jahanzeb Awan Jahanzeb Awan is a Barrister-at-Law (Lincoln’s Inn) and a Partner at Khalid Anwer & Co, one of the leading law firms in Pakistan. He specialises in civil and commercial litigation and advises multinationals and large national companies on corporate matters. Jahanzeb tweets @jahanzebawan.
The views expressed by the writer and the reader comments do not necassarily reflect the views and policies of the Express Tribune.

COMMENTS (15)

Akmal Wasim | 9 years ago | Reply @Jb: I concur with your view.
Akmal Wasim | 9 years ago | Reply A well written article, one may disagree on principle, but the arguments are sound. The Speaker's Ruling and the the Supreme Court Judgement may conflict. This to democracy is a A healthy sign. At least we are substantive questions. The author's reference to the previous legislation in Article 163 and the later inserted through the 18th Amendment, reminds me of the change in law relating to NAP reference in 1974. An amendment was introduced in the Bar Council Act, where after no Barrister from the Commonwealth could appear in the Courts in Pakistan. Later the same provision revisited the Prime Minister's Trial. Maybe, with a Foreign Council appearing, Moulvi Mushtaq could be compelled to be civil, at the very least. Congratulations!
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