Courts often dismissed speakers’ rulings

ISLAMABAD: The superior courts in Pakistan have repeatedly rejected the decisions of federal and provincial speakers on the grounds that they are not the ‘internal proceedings’ of the assemblies that cannot be called into question in judicial forums.

Yousuf Raza Gillani, who is now challenging Presiding Officer Syed Muzaffar Shah’s decision of rejecting seven votes in the Senate chairman’s election, had himself defended in the Supreme Court the ruling of the then National Assembly Speaker Dr Fehmida Mirza about his own disqualification. But the apex court had dismissed her ruling.

In contast, Asif Ali Zardari, who had been elected senator, had disputed the Senate chairman’s decision not to summon him when he had not yet taken oath of office. In a verdict handed down in 1999, the apex court had rejected the chairman’s ruling.

In a judgment delivered in 1996, the Supreme Court had thrown out a ruling of the then Sindh Assembly speaker. The Sindh High Court (SHC) had rejected Madad Ali’s constitutional petition against declaring his seat vacant due to his absence on the grounds that under Article 69 the courts had no jurisdiction to scrutinise the internal proceedings of the legislature. He pleaded in the apex court that the period of 40 consecutive days had not been properly computed and therefore, the court had jurisdiction. The contentions raised by parties required the interpretation of constitutional provisions and assembly rules, which were of general importance. The court accepted his plea.

In yet another case, the Supreme Court dismissed in 1992 as inconsequential the Sindh speaker’s ruling in the Muhammad Naeem Akhtar case. It related to the acceptance of his resignation as assembly member. It was ruled that the question neither came within the meaning of the term “any proceedings” in the Sindh assembly nor such action could be described as an exercise of power by the speaker for regulating the procedure or conduct of business in the legislature.

In 1970, the apex court held in the Farzand Ali case that it is a question affecting the constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the courts.

In the Shamsuddin case, the Balochistan High Court (BHC) had held that the internal proceedings which were carried out in the assembly during its session were not amenable to the jurisdiction of the court. However, all other administrative actions by the speaker, including the recruitment of employees, did not enjoy immunity from judicial review, particularly when such an action by the speaker was, prima facie, in violation of existing rules or the discretion vested in him to take certain decisions in order to smoothly run the functions of the assembly secretariat had not been exercised judiciously. Therefore, the BHC was competent to examine the validity or otherwise of such an action.

In 2011, the apex court, while dilating upon its power of judicial review vis-à-vis Article 69, noted that although the committee constituted under Article 175A bore the title of ‘Parliamentary Committee’ its nature and functions were such that its proceedings were not to be considered the internal proceedings of parliament. Its functions were of an administrative nature and related to judicial appointments rather than parliamentary business. Therefore, its proceedings were held to be reviewable by the superior courts and there was no immunity from judicial scrutiny under Article 69.

On May 24, 2012, the apex court had disqualified Gillani as the prime minister for not writing a letter to the Swiss authorities for opening a case against Zardari. However, Speaker Dr Fehmida Mirza had decided that no question of his disqualification had arisen even after the judgment of conviction. She concluded that the charges against Gillani are not relatable to the grounds for his ineligibility. Therefore, she refused to send his case to the Election Commission of Pakistan (ECP) for his unseating as a member of the National Assembly.

However, the Supreme Court held that the issue as to what are, and what are not, the internal proceedings of the parliament, that are beyond the pale of jurisdiction of the courts, has been dilated upon by the superior courts in the past on many occasions. It had been held in one case that whatever was not ‘related to any formal transaction of business in the House’ cannot be said to be a part of its internal proceedings". The court held that Dr Fehmida Mirza’s ruling is amenable to the jurisdiction of the superior courts. It further said that her ruling dated 25 May, 2012 did not fall within the ‘proceedings’ of parliament that cannot be subjected to judicial scrutiny by virtue of Article 69.

Zardari had been elected senator and was an under-trial prisoner. He challenged the Senate chairman’s ruling of not summoning him. The high court had ordered that such a person, who had not taken oath as senator, had the right to attend the Senate session. The chairman had ruled that the person, though elected but not having been administered the oath of office as senator, was not a member of the Senate and could not be summoned.

The apex court ruled that it is not each and every act of such an officer or member that is protected. It is only an exercise of power, which has a nexus with regulating the procedure or the conduct of business or maintaining of order in parliament which is, thus, made immune, though subject to time honoured constraints, it said.

In other words, the judgment said, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by the "formal transaction of business" concomitant to such internal proceedings. Besides, the protection in Article 69(1)(2) protects only "any irregularity of procedure" and obviously not a patent illegality.

“Summoning a member to a parliamentary session does not appear to be a matter, which pertains to the regulation of procedure or conduct of business or maintenance of order in a House of Parliament and is, therefore, speaking strictly, beyond the ambit of immunity, such immunity itself being subject to similar implications as in Article 248,” the court ruled.