Opinion

MQM resignations — are they reversible?

The ball is already out of the speaker’s court and, as of Aug 12, 2015, the MQM has already lost its berth in NA

Barrister Masroor Shah August 20, 2015

The writer is an advocate of the Supreme Court of Pakistan and tweets @BarristerMShah

The move by MQM parliamentarians to resign from the National Assembly has caused yet another ripple in the already turbulent waters of our nascent democracy. Leaders from all shades of the political divide are busy in their endeavours to somehow sugarcoat the bitter constitutional quagmire with various political solutions being proposed. Amid Altaf Hussain’s charter of demands for coming back into parliament flashing on every TV screen and sumptuous haleem sessions at Nine Zero, little do they know that the ball is already out of the speaker’s court and, as of August 12, 2015, the MQM has already lost its berth in the National Assembly. All that is being done now is a mere attempt to shield a purely legal issue behind the facade of political dilemma.

This is not the first time MQM legislators have tendered resignations from parliament. In 1993, when MPAs belonging to the MQM flooded the office of the speaker with their resignations as a mark of protest and to exert pressure against the vilification campaign of their party leader, the issue reached the Sindh High Court where, on a petition titled Muhammad Naeem Akhtar & 2 Others vs The Speaker, Sindh Provincial Assembly & Others (1992 CLC 2043), filed by three MPAs, challenged the speaker’s decision of accepting their resignations on the ground that these were submitted under duress.

The high court, while dealing with the issue in light of Article 64 of the Constitution, elucidated that vacation of the seat of an MNA is contingent upon the happening of two events; first, a letter written by the resigning member in his own handwriting and second, the receipt of the same in the hands of the speaker. Upon the occurrence of these two events, his seat shall automatically become vacant. The Constitution does not require ‘acceptance’ of a resignation received by the speaker for that resignation to become effective and the seat becoming vacant. However, it does not follow that the speaker has absolutely no role to play in such a scenario. The Sindh High Court enunciated that in case the speaker has any doubt about the genuineness or voluntary nature of the resignation received by him, or if he receives information from the member concerned that the resignation is not genuine or is not voluntary, he is then required to hold an inquiry to satisfy himself qua the genuineness of the resignation and, if in such an inquiry he finds that the resignation is not genuine or voluntary, he will record such findings, in which event the resignation shall become ineffective.

In case the speaker has no reason to doubt the genuineness of the resignation and does not receive any intimation either before or within reasonable time of receipt from the member concerned that the resignation is not genuine or voluntary, there would be no requirement for the speaker to hold any inquiry and the resignation would become effective. As per the principles laid down by the Sindh High Court, the law does not require the speaker to hold any inquiry.

The speaker’s power to hold an inquiry on genuineness of resignations has also been discussed by the Supreme Court in a case titled Mirza Tahir Beg vs Syed Kausar Ali Shah & Others (PLD 1976 SC 504). The Court, while interpreting Article 64 of the Constitution, inferred an implied duty on the speaker to make proper enquiry, if there is any reason for doubt qua genuineness.

Finally, in Mian Muhammad Nawaz Sharif Case (PLD 1993 SC 473), the Supreme Court enumerated circumstances, where resignation of an MNA would automatically become effective immediately upon submission, contrary to those where an inquiry would be imperative. The Court stipulated that where the letter of resignation is delivered to the speaker personally, the member should express that his resignation is voluntary and genuine. However, if the letter of resignation is delivered by any other means, the speaker is bound to inquire about its genuineness.

In the given premise, all endeavours to persuade the MQM to withdraw its resignations seem meaningless since the ball is already out of the speaker’s court as the party’s seats in the National Assembly already stand vacant. Any attempt on the part of the speaker to hold an inquiry or a public statement by the MQM resiling from its resignations at this belated stage would be an affront to the notion of constitutionalism and the rule of law. The speaker should now live up to his apolitical role of being custodian of the House and discharge his constitutional function without being overwhelmed by the prime minister or the ruling parliamentary party. After all, constitutionalism ought not to be sacrificed at the altar of political exigencies.

Published in The Express Tribune, August 21^st, 2015.

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COMMENTS (2)

S.R.H. Hashmi | 9 years ago | Reply The writer’s bias against MQM becomes quite obvious by the very fact that while he has thought fit to quote cases relating to resignations that go back decades, he has omitted the very recent and much discussed case of PTI members’ resignations which the Speaker kept unaccepted for nearly a year. And this despite the fact that apart from submitting the resignations, the PTI members did not attend assemblies for multiples of the forty days which only confirms their intention to part ways with the Assembly. Moreover, Imran Khan and his colleagues had walked out of the assembly, declaring it to be a fake assembly formed in consequence of massively rigged election. And yet, PTI members were welcomed back into the Assembly and by the look of it, even the Barrister did not see anything wrong with it, legally or otherwise. The following paragraph forms part of the article: “The Sindh High Court enunciated that in case the speaker has any doubt about the genuineness or voluntary nature of the resignation received by him, or if he receives information from the member concerned that the resignation is not genuine or is not voluntary, he is then required to hold an inquiry to satisfy himself qua the genuineness of the resignation and, if in such an inquiry he finds that the resignation is not genuine or voluntary, he will record such findings, in which event the resignation shall become ineffective.” In simple words, it means that in case of any doubt about the voluntary nature of the resignations received by him, or being told so by the members concerned, the Speaker is required to hold an inquiry and in the event of him finding resignations to be involuntary, he will have to record such findings which will automatically result in the resignations becoming ineffective. Now, each resignation submitted by the MQM members had an annexure stating clearly their grievances which have not been addressed, despite them approaching all forums, and that this is what has forced them to submit their resignations. Moreover, MQM members have been continuously talking about their problems which have forced them to submit their resignations, as the ultimate form of launching their protest. So, according to the writer’s own statement, the Speaker is bound to hold an inquiry, and finding resignations to be involuntary – which he is bound to do because of ample written and verbal evidence - he has to record this fact which will automatically make the resignations ineffective. Karachi

Parvez | 9 years ago | Reply Although what you say may be true and I believe it is ......... the fact that personal wishes especially of the rich and powerful trumps the rule of law, is most clear. Also the law as practiced in Pakistan can be surprisingly elastic, depending on interpretation. So if exactly the opposite of what you claim happens.......don't be astonished.......I certainly won't be.

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