“O you who believe, be maintainers of justice, bearers of testimony for Allah, even though it be against your own selves or (your) parents or near relatives whether one be rich or poor….” ( The Quran 4:135);
In a politically charged environment, the incumbent Government is trying to put up a brave face and believes that the Prime Minister Khan has defeated the no-trust motion against him. What an awe-inspiring week it has been, for the people of Pakistan who have been striving for the basic necessities and its dignity, as opposed to the alleged foreign interference orchestrated by the joint opposition. On April 3 the Federal Minister for Law and Justice rose on a point of order in the National Assembly and drew the attention of the Chair to the no-trust Resolution moved by the joint opposition against Prime Minister Khan. During his speech, Minister of Law & Justice emphasized the spirit of Article 5 of the Constitution, whilst expounding the gist of it and the cardinal duty of every citizen to show loyalty to the State.
The controversy can be devolved into two fundamental questions. Firstly, whether Article 5 of the Constitution amounts to a mandatory or directory provision? The second question that entails from the discussion brought before the Apex Court in the Suo Moto Case No. 1 of 2022, is whether it could prove fatal, if interpreted otherwise or not observed. To distinguish where the directions of the legislature are imperative and where they are directory, the real question is whether a thing has been ordered by the legislature to be done and what is the consequence, if it is not done. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance. Therefore, a provision in a statute is mandatory if the omission to follow it renders the proceedings to which it relates illegal and void, while a provision is directory if its observance is not necessary to the validity of the proceedings. Thus, some parts of the articles of the Constitution may be mandatory whilst others may be directory. It can even be the case that a certain portion of a provision or an article, obligating something to be done, is mandatory in nature whilst another part of the same provision or an article, is directory, owing to the guiding legislative intent behind it. Suffice it to say, the plain reading of Article 5, vis a vie, loyalty to the State and Obedience to the Constitution, is directory in nature, as opposed to its mandatory attribute.
In these realms of affairs, the Deputy Speaker of the National Assembly, disallowed the motion of no-confidence against the Prime Minister Khan, on the pretext of interference orchestrated from a foreign State in the democratic process of Pakistan; thus the constitutionality of the ruling passed by the custodian of the house, stands under scrutiny before the August Supreme Court of Pakistan. Whereby, the stalwarts of Pakistan Tehreek Insaaf (PTI) prepare to execute their next move and the Prime Minister Khan through an unprecedented move dissolves the National Assembly and calls for early elections within 90 days.
At this point, things have heated to an extent that the threat of violence looms large. If it decides to reverse the prime minister and deputy speaker’s ruling, the ruling PTI and its supporters are not likely to accept it. The political party’s base is highly charged as they see Khan as a victor who defeated an international conspiracy. Pakistan’s political turmoil has loomed, and all eyes are on the Supreme Court of Pakistan.
Conversely, the disgruntled opposition did not seem to decipher what had happened. The ruling of the Deputy Speaker came as an utter surprise to the joint opposition. The unanticipated surprise that Mr. Khan had been warning of since the last week.
Insofar as much, the PTI veterans believe that all the proceedings of the National Assembly are shielded under the garb of Article 69 of the Constitution. Nonetheless, Article 69 of the Constitution does not grant absolute immunity but is rather viewed as a qualified right. The said adage is also incorporated in Article 122 of the Indian Constitution so as to restrict the court’s jurisdiction to examination of the Parliament’s procedure in case of unconstitutionality, as opposed to illegality, which would amount to doing violence to the constitutional text.
Applying the principle of expressio unius est exclusio alteriusl (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of “irregularity of procedure” does not make taboo judicial review on findings of illegality or unconstitutionality. The fundamental constitutional basis for the distinction between an irregularity of procedure and an illegality is that unlike in the United Kingdom where Parliamentary sovereignty governs, countries like India and Pakistan are governed by constitutional supremacy.
The Supreme Court of Pakistan has also reaffirmed the relevant principles, in a judgment reported as Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). While dilating upon the power of judicial review of the Court vis-à-vis Article 69 of the Constitution, the Apex Court noted that although the committee constituted under Article 175A of the Constitution 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 of the Constitution. The same principle applies to the Speaker’s ruling under Article 63(2) of the Constitution. The Speaker performs the administrative task of determining whether a question of disqualification has arisen and if in doing so he goes beyond his constitutional remit, misapplies the applicable law or misuses her discretion, then his decision will be subject to judicial review.
Unfortunately, that’s the political democratic system we have. Where the joint opposition wants to build its narrative of subverting the Constitution through these allegedly unfavourable acts of the ruling elite. On the same stature, just a few weeks ago, about 20 dissident members of the PTI were all set to vote in favor of the resolution of no confidence. Whereas the turncoats were given a deadline to submit their clarifications. Does this mean that the act of luring the disgruntled PTI legislators and their undue captivity does not amount to un-constitutionalism? Can the President order dissolution of the National Assembly, under Article 58(1) of the Constitution, on the advice of the Prime Minister against whom a notice of resolution for a vote of no confidence had been given in the National Assembly but has not been voted upon?
At this point, things have heated to an extent that the threat of violence looms large. If it decides to reverse the prime minister and deputy speaker’s ruling, the ruling PTI and its supporters are not likely to accept it. The political party’s base is highly charged as they see Khan as a victor who defeated an international conspiracy. Pakistan’s political turmoil has loomed, and all eyes are on the Supreme Court of Pakistan.
