Like many other countries, the constitutional scheme of the Islamic Republic of Pakistan is based on trichotomy of power, viz that there are three organs of the State; the legislature, executive and the judiciary. This aspect of the Constitution and our system has been reiterated by the superior courts time and again. The key principle here is that no organ of the State should encroach on the domain and powers of the other State organ. Therefore, the judiciary, as such, cannot encroach upon the powers and functions of the legislature and/or executive, but has the unique power of exercising power/jurisdiction to check the actions/inactions of the executive by means of judicial review.
This jurisdiction has been granted to the superior courts in Pakistan under Article 199 of the Constitution (in case of High Courts) and under Article 184 (in case of the Supreme Court of Pakistan). Judicial review by the courts does not mean a blanket power to examine the actions/inactions of the executive rather it is subject to conditions and parameters laid down in the Constitution or c
There has been great debate as to whether internal proceedings of the Parliament can be subjected to challenge before any Court of Law.
The answer to this question is given in terms of Article 69 of the Constitution of the Islamic Republic of Pakistan 1973, which provides protection to the internal proceedings of the Parliament. However, this protection is not absolute and the same can be interfered with in case the same is based upon mala-fide, absence of jurisdiction, or – otherwise through action or inaction – is coram non judice.
In the past decades, the courts have reviewed many decisions in the parliament. The leading authority for this is the case titled as Muhammad Azhar Siddiq Vs FOP (PLD 2012 SC 774. The proceedings of the Parliament are justiciable in certain circumstances, where they do not fall in the internal proceedings or within the meaning of business, or if there is no question of any irregularity in the procedure. Conversely, the courts have also on several occasions exercised restraint from interfering into the internal proceedings of the Parliament, for instance in Pakistan Versus Ahmed Saeed Kirmani (PLD 1958 SC 397).
Protection of parliamentary proceedings has also been respected by the courts from across the border. In India, parliamentary proceedings have been given protection in many cases. The leading authority for this is the case titled as Jagjit Singh Versus State of Haryana and others reported as AIR 2007 SC 590, wherein it was held that “even if the independents have not formally joined the political party whose government they support, they can be disqualified on the ground that they have joined a political party if the facts and the circumstances strongly suggest they have. If after winning the election he joins hands with any of those political parties and starts supporting the government led by the party or becomes a minister in that government, he is betraying the mandate of the people who chose him in preference to the political parties.”
The proceedings of the Parliament are justiciable in certain circumstances: where they do not fall in the internal proceedings or within the meaning of business, or if there is no question of any irregularity in the procedure
Likewise, parliamentary proceedings have also been given protection in Britain. A few of such like cases are as follows: The recent judgment on this is the case titled as R (Miller) Versus The Prime Minister reported as 2019 UKSC 41 wherein it was held that “the prorogation of Parliament had been unlawful and was null and void”.
The Rules of Procedure and Conduct of Business in The National Assembly 2007 define Speaker as follows:-.
“Speaker” means the Speaker of the Assembly and includes the Deputy Speaker or any other member for the time being acting as a chairperson.
In light of Rule 28, whenever the Speaker decides or gives his ruling on any matter on the floor of the House or in his office on the file, as the case may be, it shall not be called in question, and that shall be final except on a motion for rescinding it. And Rule 161 empowers the Speaker to decide the admissibility of a resolution. In case he considers the resolution to be an attempt to obstruct or prejudicially affect the procedure of the Assembly or is in contravention of any of these rules, he may declare it inadmissible.
Rule 15 grants the Chairperson the same powers as the Speaker when presiding at a sitting and all references in these rules to the Speaker shall be deemed to include a reference to the Chairperson.
Rule 276(7) bars a member from voting on any question in which he or she has a pecuniary interest. If he votes on such a question, the vote shall, on a substantive motion carried by the Assembly, be disallowed.
Reading of the above-referred rules clearly suggests that the role of Speaker is not that of a postman. In fact, he is required to apply his mind to any proposition that he is confronted with before passing a ruling.
Article 69 of the Constitution then imposes an explicit bar upon the Courts that they shall not and are not supposed to interfere or intervene in the parliament’s internal proceedings.
The Supreme Court must be mindful of the tricky and dangerous situation that the political parties have dragged it into. This is a time when it must exercise judicial restraint and let the political parties resolve it in parliament. Any decision passed by the Supreme Court is most likely going to be unacceptable to one political camp, which will charge up the already polarised crowd.
I would like to conclude by referring to the famous quote by Sir Edward Coke while quoting Sir William Blackstone in Dr. Bonham’s case, where he once said, “The powers of the Parliament are so transcendent and absolute that what the parliament doth no authority upon earth can undo.”