While the criticism ranges from fair to outright senseless, the objective of this article is not to answer that criticism, but to explain what the relevant law truly is and how it has been interpreted within the legal system of Pakistan.
The history of Article 69 – to be read with Article 66 aka parliamentary privilege – is an old one and dates long before the creation of Pakistan when the parliament within Great Britain was struggling for its own supremacy against the monarchy. I will not replicate the said articles as they have been mentioned quite enough. The historical purpose of the said articles was to secure the parliamentarian’s freedom of speech so that no topic could be considered taboo within the parliamentary floor and all relevant societal issues could be discussed without fear of prosecution or defamation. Even maligning of the opposition and revealing scandals was meant to be protected, so that the parliament, home to representatives of the people, could truly make an informed decision for the benefit of the country.
While this article is the shield that protects the freedom of speech of the parliament, the question in place is not regarding the freedom of speech within the parliament but the freedom of action. The Westminster Parliamentary procedure evolved to protect not only the freedom of speech of a parliamentarian but also the freedom of action so that no clerical or procedural irregularity could be used against the Parliament and the matter brought under judicial review. Pakistan inherited this Article through its adoption of the parliamentary system within the Constitution and the Courts have indeed stayed true to the interpretation that the judiciary cannot interfere within parliamentary procedure. However, Pakistan is not home to a complete British system. Its constitution may be influenced by the constitutional principles of the United Kingdom but a bare perusal tells us that the Pakistani constitution is modelled heavily on the US and Irish constitutions, which rely on the doctrine of separation of powers, i.e. power is divided between the three branches of state; Judiciary, Executive and Legislative; and these branches are independent and equal in their domain. They are independent yet subservient to each other. This balance makes sure no single institution can claim absolute domination over the other.
If the doctrine is to be examined, then it is not about three institutions going their separate ways and doing whatever they desire, but it is a concept of checks and balances provided by each institution upon each other. Article 69, however, takes a separate route from this doctrine and brings it into the territory of absolute parliamentary supremacy. The legal team of the previous government was quite mistaken when they spoke of how the judgment regarding the Speaker’s ruling abrogated Article 69 by destroying the Doctrine of Separation. While the said article does compliment the doctrine, it is quite opposite – for the article speaks more on parliamentary supremacy rather than the doctrine of separation of powers.
So we are left to wonder as to how the courts of Pakistan balanced the article within our constitutionalised doctrine.
The courts have repeatedly held that they cannot interfere within parliamentary procedure. However, they have highlighted one major exception and it is here that they balanced Article 69 with the doctrine of separation of powers. This exception was wherever the parliament acts unconstitutionally. We have seen this repeatedly, whenever the courts of Pakistan have struck down laws passed by parliament declaring them to be unconstitutional. And this “unconstitutional act” is not just limited to legislation but is also applicable to all actions undertaken within the parliament. After all, those legislations were passed through the parliamentarians’ freedom of action, yet the courts intervened striking down those laws as unconstitutional. The courts have always held that no individual or institution is above the constitution and any act in contravention of the constitution is open to judicial review. The Speaker is no exception.
Whether the actions of the Speaker are justiciable or not is a question that has been brought to courts repeatedly, and initially the honourable courts had declared the action of the Speaker 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. In 2011, PTD 2643 where the question related to the money bill and Article 73 which contained a similar bar ousting the power of courts, we saw that the court held in this case that wherever the act is unconstitutional, its authority was not barred. Ironically in a more recent case, this question was again raised, which was Imran Khan vs Nawaz Sharif PLD 2017 SC 265, wherein the Supreme Court held;
“[…]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[…]”
With the above, it is quite clear and understandable that the understanding of the Article 69 that is being peddled by the legal team of political parties and their social media armies is misinformed and is solely meant for deception. It is quite clear that the evolution of the stated articles as well as the question of whether the Speaker’s ruling is justiciable or not has been well answered.
We are left with only one last question to answer.
Were the actions taken by the Supreme Court and the High Court against the actions of the Speaker and Governor respectively justiciable and legal?
There is little controversy among the legal minds of the country that the judgment passed by the honoured Speaker was against constitutional principles and was an arbitrary abuse of authority. Similarly, the directions passed by the honorable Chief Justice of the Lahore High Court was also legally tenable and constitutionally sound.
It is the fundamental right of all individuals to criticise the institutions and their actions. However, this criticism must be within the ambit of rationality and common sense, in cognizance of the evolutionary history of law and the action taken within it.