Legal experts say Article 5 ‘misinterpreted, misused’

ISLAMABAD: Senior lawyer Hamid Khan said the speaker or the deputy speaker of the National Assembly misinterpreted and misused the Article 5 of the constitution.

Speaking on Geo News programme Naya Pakistan, anchored by Shahzad Iqbal, Hamid Khan said the speaker or his deputy have no authority to reject the no-confidence resolution, adding their job is to arrange voting on it.

He said no executive action can follow from Article 5 in absence of any judicial or legal proceeding. He said the Article 5 orders citizens to be loyalty to the State, adding no citizen can be declared traitor in absence of court’s order after judicial proceedings.

He said that talk about invoking Article 6 in this matter is premature as it could be determined only after reviewing the Supreme Court’s judgement. Speaking in a TV programme, Justice (retd) Shaiq Usmani said the deputy speaker’s ruling can be challenged because he interpreted Article 5, whereas it’s only the Supreme Court that can interpret the constitution.

Human rights activist and lawyer Jibran Nasir tweeted: “If any act or order is a nullity in law, it is considered void ab initio and any proceedings flowing from it are also void. He said: “A nullity cannot be perpetuated. The prime minster's right to seek dissolution of assemblies via the President ceases to exist till a motion of vote of confidence is pending vote.”

Nasir said: “Dismissing the motion under Article 5 was unconstitutional and through that, the premier assuming the right to ask the President to dissolve the Assembly is also void. Furthermore, the Deputy Speaker dismissing the motion under Article 5 is also a charge sheet against the 86 parliamentarians, who had presented the motion, that they are acting against the interest of Pakistan.”

Nasir maintained: “Fortunately, all rulings of a Speaker or Deputy Speaker aren't protected. It was in Imran Khan's petition for disqualification of Mian Nawaz Sharif in which the Supreme Court held that certain rulings by Speaker can be justiciable, that if "the decision of Speaker was legally or factually incorrect it could set aside such decision."

Nasir explained: “A similar controversy regarding the vote of no confidence occurred back in 1989 in the Anwar Durrani case, where the Balochistan High Court held that courts can intervene in any matter requiring the interpretation of the Constitution and held that it was mandatory to put the motion to vote before any dissolution.”

Nasir added: “The PTI, through its repeated actions, has clearly demonstrated it's willing to sacrifice democracy to save itself. But they don't realise that if democracy doesn't survive, they won't either.”

Supreme Court Bar Association President Ahsan Bhoon called upon all segments of society, including the lawyers' guild, to take a stand against "an act of a dictator donning a civilian garb" to protect "the future of the country".

"When a Constitution is stopping a man from working, then he has no power or authority to call for the dissolution of the Assembly." Bhoon said Article 6 of the Constitution would be applied to the president, the prime minister, the deputy speaker of the National Assembly, and the law minister.

"If the top court did not take notice, then people will believe it's also hand in glove with them [govt]," he claimed. Raja Khalid Mehmood, who resigned as Deputy Attorney General, the Sunday events were tantamount to abrogation of the constitution that fell under the Article 6. Not applying Article 6 in this matter would render the constitution into a “joke”, he added.

PPP leader and Barrister Aitzaz Ahsan, while speaking to Geo News, said that the deputy speaker's ruling on the no-trust motion "seemed to be in violation of the Constitution".

"Although the Supreme Court has to decide [on the matter] now and the opposition is approaching it," he added. "But prima facie it [ruling] is in violation of the Constitution." He explained that the Speaker could dismiss a motion if he considered it in violation of the law and rules. "But once it is presented on the floor of the House [...] it is elevated to a resolution and becomes a property of the floor of the House," he said, implying that the Speaker could not have dismissed it in this case.

Talking to a TV channel, legal expert Salman Akram Raja said: "In my view, this is an unconstitutional ruling given by the speaker in response to a Constitutional move."

"This is a violation of the Constitution and the question remains whether the court will take up this issue. However, Article 69 of the Constitution says that any act by the NA or Senate shall not be intervened into by the top court."

Raja said there were a few examples in the world where the courts took notice of "government rulings based on malafide intent", adding that it happened in Britain as well as the European Union.

He said it was to be seen what stance the court adopted. Sindh Bar Council Vice Chairman Zulfiqar Jalbani termed the deputy speaker’s action unconstitutional. He said it was also unconstitutional on part of the prime minister to advise the president to dissolve the assembly. Therefore, the actions of president, the prime minister and the deputy speaker tantamount to treason, he added.

PTI’s counsel foreign funding case Shah Khan and former Attorney General Irfan Qadir term actions of deputy speaker, PM unconstitutional. Rasheed Rizvi said deputy speaker’s premises for rejection the no-trust motion is wrong. He lamented that the ruling party was flouting the constitution to save its government.

Lawyer Salahuddin Ahmed was of the opinion that the deputy speaker's action were not only blatantly illegal, they were also clearly mala fide. "The entire proceedings smacked of mala fide intent, with the information minister speaking for two minutes, before the Speaker summarily declared the motion illegal and prorogued the session," he said.

Ahmed said the Speaker did not have the jurisdiction to issue a verdict on the legality of a motion or legislation. "The Speaker's job is to perform a head count and then declare a motion passed or otherwise, accordingly," said Ahmed, adding that in Sunday's proceedings, the Speaker's actions were completely illegal.