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Petitioner: Syed ZAFAR ALI SHAH VS Respondent: FEDERATION OF PAKISTAN through Secretary, JUDGMENT
Court Name: Islamabad High Court Judge(s): Athar Minallah, Aamer Farooq Title:Syed ZAFAR ALI SHAH vs FEDERATION OF PAKISTAN through Secretary,
JUDGMENT
Reported As: PLJ 2015 Islamabad 299 Result: Petition dismissed Judgment JUDGMENT. Ather Minallah, J.--The petitioner is a senior Member of the Bar of this Court as well as the Supreme Court. He is a former Senator and a Member of the ruling political party i.e. Pakistan Muslim League (N) (hereinafter referred to as the 'PML-N'). Through the instant petition various prayers have been sought, which are as follows:- (a) To declare the Respondents No. 7 to No. 35 as former Members of the National Assembly from the date of their resignation, on the ground that the said resignations were genuine and had been voluntarily tendered before the Speaker of National Assembly (hereinafter referred to as the 'Speaker'). (b) To direct the Speaker to send the respective notifications, regarding the vacation of the seats of Respondents No. 7 to 35, to the Election Commission of Pakistan. (c) To direct the Election Commission to announce the schedule of bye-elections on the vacant seats, pursuant to the resignations of the Respondents No. 7 to 35. (d) To restrain the Secretary National Assembly from issuing the salaries or any other financial benefits to the Respondents No. 7 to 35. 2. The facts as narrated in the petition and argued before us, in brief, are that Mr. Imran Khan, Respondent No. 7, had held a Dharna (Sit in) in August, 2014, demanding the resignation of the Prime Minister of Pakistan, namely, Mr. Muhammad Nawaz Sharif. Respondents No. 8 to 35 were duly elected from -their respective constituencies or on reserved seats. The Respondent No. 7 is the Chairman of the Pakistan Tehreek-e-Insaf (hereinafter referred to as "PTI) while the other
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respondents had contested elections on the tickets awarded by the said political party. The - Respondent No. 7 and other respondents had announced publically that they had tendered their resignations by addressing the same to the Speaker. Public announcements in this regard were made by the respondents, inter alia, through media and other means, that the resignations had been tendered. The Respondents No 7 to 35 are alleged to have refrained from attending the proceedings of the National Assembly for 40 consecutive days, which thereby made them liable to be proceeded against under sub Article 2 of Article 64. The Speaker had undertaken an inquiry but the respondents failed to appear before him individually. The petitioner is stated to have been astonished when he came to know on 05-04-2015 that the Respondents No. 7 to 35 will be attending the Session of the National Assembly on the following date, thereby retracting their respective resignations. Hence the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the 'Constitution') has been invoked, seeking the prayers as mentioned above. 3. The petitioner appeared in person and contended that Article 64 of the Constitution is silent regarding the acceptance or rejection of the resignation tendered by a Member of the Parliament. It was forcefully argued that once the resignations had been tendered and the Members had absented themselves without leave of the House for 40 consecutive days of the sitting of the National 'Assembly, then their seats shall fall vacant. The learned counsel took us through the Rules of Procedure and Conduct of Business in the National Assembly, 2007 (hereinafter referred to as the "Rules"), particularly. Chapter-VI thereof, which relates to Leave of Absence, Resignation and Vacation of Seats in the Assembly, in support of his contention that the Speaker is not required to make any inquiry, as the facts and circumstances of the case clearly show that there was no doubt regarding the resignation being voluntary and genuine. He has further contended that the prayer sought in the instant petition would not come within the definition of the expression "internal proceedings" for the purposes of Article 69 of the Constitution. He has relied on the cases of 'Mirza Tahir Beg v. Syed Kausar Ali Shah and others' [PLD 1976 SC 504] and Abdul Razique Khan v. The Province of Sindh through the Chief Secretary, Government of Sindh, Karachi and 3 others' [PLD 1994 SC 79] 4. We enquired from the learned counsel whether he had approached the political party, of which he is a member, regarding raising the issue on the floor of the house, or to resolve his grievance or address the same at an appropriate forum, for example in the Parliament. The petitioner has stated that as a member of the ruling party, he has made a representation, but no action has been taken pursuant thereto. It was also enquired as to whether it was appropriate for this Court to entertain the matter, when no order has been passed by the Speaker of the National Assembly, and also whether it would be appropriate for this Court to interfere in a matter which could best be resolved by the political forces within the confines of the Parliament? The learned counsel has stated that as a citizen, it is his right to invoke the jurisdiction of this Court, as the matter requires the interpretation of the Constitution. 5. We have heard the learned counsel at length and we hold and our opinion is as follows:- 6. From the arguments advanced by the petitioner and the averments made in the petition, two questions emerge for determination by this Court. Firstly, what is the nature of the grievance raised before us in the light of the facts and circumstances of the case, particularly the settled law regarding Article 64 of the Constitution, and whether the grievance placed before us is justiciable under Article 199 of the Constitution? The grievance of the petitioner, as we have understood, is that Article 64 does not envisage either the rejection or acceptance of a resignation tendered by a Member of the National Assembly, and that there is no doubt that the resignations were tendered voluntarily and genuinely and, therefore, the role of the Speaker has become ceremonial and he is under a duty to act mechanically by forwarding the same to the Election Commission of Pakistan
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(hereinafter referred to as the "Commission"). The matter placed before us essentially relates to Article 64 of the Constitution. The law is well settled by now as would be discussed later. For ease of reference Article 64 is reproduced below:-- "64. Vacation of seats.--(1) A member of the [Majlis-e-Shoora (Parliament)] may, by writing under his hand addressed to the Speaker or, as the case may be, the Chairman resign his seat, and thereupon his seat shall become vacant. (2) A House may declare the seat of a member vacant if, without leave of the House, he remains absent for forty consecutive days of its sitting." 7. Pursuant to Clause (2) of Article 67 of the Constitution, the President has made Rules of Procedure and Conduct of Business in the National Assembly, 1973 (hereinafter referred to as the 'Rules'). The Rules were unanimously adopted by the National Assembly on 5th August 1992. Chapter-VI relates to the procedure of Leave of Absence, Resignation and Vacation of Seats in the Assembly. Rule 43 explicitly deals with resignation of seat and the same is as follows:- "43. Resignation of seat.--(1) A member under clause (1) of Article 64 may, by writing under his hand addressed to the Speaker, resign his seat. (2) If,- (a) a member hands over the letter of 'resignation to the Speaker personally and informs him that the resignation is voluntary and genuine and the Speaker has no information or knowledge to the contrary; or (b) the Speaker receives the letter of resignation by any other means and he, after such inquiry as he thinks fit, either himself or through the National Assembly Secretariat or through any other agency, is satisfied that the resignation is voluntary and genuine, the Speaker shall inform the Assembly of the resignation: Provided that if a member resigns his seat, when the Assembly is not in session, the Speaker shall direct that intimation of his resignation specifying the date of the resignation be given to every member immediately. (3) The Secretary shall, after the Speaker satisfies himself that the letter of resignation is voluntary and genuine, cause to be published in the Gazette a notification to the effect that the member has resigned his seat and forward a copy of the .notification to the Chief Election Commissioner for taking steps to fill the vacancy thus caused. (4) The date of resignation of a member shall be the date specified in writing by which he has resigned or if no date is specified therein the date of receipt of such writing by the Speaker." 8. The above provisions have been considered and interpreted by the august Supreme Court in a chain of judgments and, therefore, it would be beneficial to discuss the principles and law enunciated and laid down therein, so as to determine the nature of the grievance raised before us and whether interference by this Court, in exercise of its extraordinary discretionary jurisdiction, is warranted. 9. In the case of 'Mr. A. K Fazalul Quader Chaudhury v. Syed Shah Nawaz & others' [PLD 1966 SC 105], the apex Court, while considering the provisions of the Constitution of Pakistan, 1962, interpreted the duty of the Speaker in the case of resignation tendered by a Member of the National Assembly. In the said case a Member was alleged to have tendered his resignation which he had later denied. The Speaker, after receiving the resignation, caused a notification to be published declaring that the Member had resigned from the seat in the National Assembly. The vires of the notification was challenged before the High Court of West Pakistan. The,. High Court did not accept the plea of the respondent that by .addressing the letter to the President he had not intended to resign. However, the petition was allowed on a different ground i.e that the resignation was not tendered in the manner as required by Article 107 of the Constitution of Pakistan, 1962. The august Supreme Court, nevertheless, held that it was the bounden duty of the Speaker to have taken all the documents
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into consideration and thereafter construe the same so as to form an opinion or arrive at the conclusion whether the Member had intended to resign. 10.In the case of 'Mirza Tahir Beg v. Syed Kausar Ali Shah and others' [PLD 1976 SC 504], a resignation was alleged to have been addressed and sent to the Speaker by a Member of the Punjab Provincial Assembly. It was alleged that the resignation had been obtained under coercion. The Speaker in this case had taken the stance that he was under the impression that his duty was no more than to merely transmit the resignation to the Chief Election Commissioner, and it was for the latter to do the rest. The relevant portions of the judgment are reproduced as follow:- "Needless to say that the Speaker in a parliamentary form of Government holds an office of highest distinction and has the sole responsibility cast on him of maintaining the prestige and the dignity of the House and each and every member composing the House. It is precisely for this reason that the Constitution has ordained that a resignation by a member is effective only when it is "addressed" to the Speaker: it was not intended to be an idle formality. To relinquish a parliamentary seat by resignation is a grave and a solemn act. By and large our political institutions are fashioned on the pattern of those obtaining in England and it is a settled principle of parliamentary law in England that a member of Parliament after he is duly chosen, cannot relinquish his seat by unilaterally resigning his membership. In order to evade this restriction a member who wishes to relinquish his seat, accepts office under the Crown which legally vacates his seat. This is enough to underline the gravity of the matter. (See May's Parliamentary Practice, 18th Edn., p. 45)." "A fortiori in a case where the genuineness or validity, of resignation is challenged or ex facie is doubtful, the Speaker shall be under a duty to enquire into the matter, before he allows the resignation to take effect. This is notwithstanding that the resignation takes effect automatically once it reaches the Speaker for it is implicit in the provision that the resignation is genuine and voluntary and was intended to reach the Speaker. This interpretation accords with the dictates of justice, equity and good conscience. The Courts have always presumed the existence of such implicit power in the appropriate authority." "On the above analysis therefore, I have no doubt in my mind that Speaker had the right and duty under the Constitution to satisfy himself as to the genuineness and the validity of the resignation by a member, before it is allowed to take effect. As a necessary corollary of that, the Speaker will have to make proper enquiry, if there appears anything tending to create any doubt with regard thereto. What will be the magnitude of the enquiry Or whether, in a particular case, any such enquiry will at all be necessary, will depend on the facts of each case and it is not possible nor even desirable to lay down a criterion for general application. For example, if in the instant case, the appellant had himself appeared and presented his resignation to the Speaker and there was nothing to show that it was involuntary, then there is hardly any need for an enquiry. If on the other hand the resignation is not presented personally, but is sent through a messenger, as in the instant case, then Speaker will have to further satisfy himself that the transmission is by an authorized person." 11. The august Supreme Court dilated on the interpretation of the expression 'resignation' in the case of 'Dr. Muhammad Munir-ulHaq and others v. Dr. Muhammad Latif Chaudhry and others' [1992 SCMR 21351 and held as follow:- "There is no dispute about the proposition advanced by the Respondent No. 1 that a resignation has to be intentional and voluntary and as defined in Black's Law Dictionary it means "formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by the act of relinquishment". It is also correct that the totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation tendered was voluntary or not."
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12. In the case of 'Mian Muhammad Nawaz Sharif v. President of Pakistan and others' [PLD 1993 SC 473] a full bench of the august Supreme Court held that not only is the resignation required to be addressed to the Speaker, but that it should be intended to be passed on to the Speaker of the Assembly. The procedure for submitting a resignation by Members of the National Assembly has been described on page-817 as follows:-- "(i) The resignation should be in writing under his hand and should be addressed to the Speaker. (ii) the resignation may be delivered by the member personally or through any other means. (iii) If the letter of resignation is delivered personally, then the Member should inform the Speaker that the resignation is voluntary and genuine. (iv) If the resignation is delivered by any other means, then the Speaker shall make inquiry into the genuineness of the resignation and ascertain whether it is voluntary or not. (v) The Speaker after satisfaction that the resignation is genuine and voluntary, shall inform the National Assembly and then the seat shall be declared vacant. (vi) The date of resignation of a member shall be the same as specified in the letter of resignation or if no date has been given, then the date of receipt by the Speaker." After elucidating the above procedure, it has been held as follows: "...To that extent there may be some disciplinary justification for obtaining and holding such resignation, but in order to make it valid and effective besides complying with the procedure laid down, it should be voluntary, genuine and should be intended to vacate the seat Resignation is a voluntary, act of a member or person submitted with the intention to relinquish, relieve or quit the particular post or position and to vacate die same. It cannot be a two-way traffic or an act to use it for any purpose liked by any third person. The. resignations obtained by any person politically or officially in authority or not from the members and delivery to a third party other than the person authorized to receive them, with the intention to achieve political gains and create a ground for dissolution of the Assembly can neither form basis for such action nor be justified by any principle, of law, morality and ethics." "...The Constitution has thus cast onerous duty on the Speaker to make inquiry into the genuineness and voluntary nature of the resignation and also that it has come through an authorized person, if not submitted personally. The Speaker can neither refuse to discharge this duty nor can any authority bypass him. The solemnity and sanctity attracted to the resignation by a member of the National Assembly shall be eroded if it is made in contravention of the provisions of the Constitution and the rules and furthermore if they are Intended not to vacate the seat, but for any other purposes, ulterior, oblivious or clandestine. Such letters of resignation which do not have any validity or sanction under law can hardly be accepted much less by a person of high position like the President to assess the confidence the members have in the Assembly and also to assess a situation whether the Government can be run in accordance with the Constitution." 13. In the case of 'Abdul Razique Khan v. The Province of Sindh through the Chief Secretary, Government of Sindh, Karachi and 3 others' [PLD 1994 SC 79], the august Supreme Court was considering the effectiveness of the resignation purportedly tendered by a Member of the Sindh Assembly, who also happened to be its Speaker, and in the facts and circumstances of the case it was held and observed as follows:-- "The comments reproduced from the written statement of the Acting Speaker clearly show that the inquiry which was anticipated and which was withholding action on the resignations already submitted was with regard to determination whether these resignations were voluntary or genuine. Just by comparing the signatures and holding it to be of the appellant, it could not be deduced that the resignations were voluntary and genuine in the sense of being intended to be resignations. Therefore, the inquiry which was required, which was anticipated, which had in any case to take place under the law never took place at the hands of the Acting Speaker. Anybody receiving the
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resignation has a duty to ascertain personally whether it is signed by the man resigning whether it is voluntary and whether it is intended to act as a resignation. Unless all the three requirements of the resignation are satisfied it is dangerous in the political melieu in which we are living to give effect to such resignations. Mere prolonged absence of the person resigning, his non-appearance after notice or his absence from the proceedings even after notice could not prove these requirements. Unless these are positively proved, the resignations cannot be given effect to as resignations. The Rules of Procedure drawn up by the National Assembly in the matter of dealing with resignations are fairly exhaustive and consistent with the law laid down by the Supreme Court of Pakistan in the cases of Mr. A.K. Fazalul Quader Chaudhury PLD 1996 SC 105 and Mirza Tahir Beg PLD 1976 SC 504." 14. It would also be pertinent to refer to the relevant portion of a judgment of the Madras High Court in the case of "A Sudarsana Rao v. J. A. Christian Pillai and others" [MR 1924 Madras 396], and the same is as follows: "The contention before me is that the petitioner resigned his office of Honorary Magistrate on 21-9- 22 and that though it was accepted on 17-10-22, he ceased to be a Honorary Magistrate from 21- 09-22. Paine on Elections, page 201, shows that without acceptance, resignation amounts to nothing and the person resigning remains in office. To resign is not a Matter of right.." 15.It is further relevant to refer to the case of "Muhammad Naeem Akhtar and 2 others v. The Speaker, Sindh Provincial Assembly" [1992'''CLC 2043]. The said judgment has been cited with approval by the august Supreme Court in [PLD 2012 SC 774]. The Sindh High Court in the said judgment examined the provisions of Article 64 and articulated the principles relating to the role of the Speaker in accepting or declining to accept resignation of Members of the Assembly as follows:- "Clause (1) of Article 64 of the Constitution does not require acceptance of the resignation by the Speaker for the resignation to become effective and as a consequence the seat becoming vacant but from this it does not follow that the Speaker has no role at all to play in this exercise of resignation. In case the Speaker has any doubts about the genuineness or voluntary nature of the resignation received by him, or he receives information from the concerned member or on his behalf that the resignation was not genuine or had not been given voluntarily, the Speaker was then required to hold an inquiry to satisfy himself as to the genuineness or voluntary nature of the resignation and if in such inquiry he finds that the resignation was not genuine or voluntary, he would record such finding, in which event resignation would become ineffective and the member would continue to retain his seat. In case the Speaker had no reason to doubt the genuineness or voluntary nature of the resignation received by him and he also does not receive any intimation either before the receipt of the resignation or within reasonable time of such receipt from the concerned member or on his behalf that the resignation was not genuine or voluntary or that it was not to be acted upon, there would be no requirement for the Speaker to hold any inquiry and the resignation in such a situation would become effective with the consequence of the seat falling vacant. (g) If the petitioners wanted to back down or retract from their resignations, they should have given a public statement or written a letter to the Speaker to that effect declaring that the resignations are no longer valid and should not be acted upon." 16. Lastly, we may refer to two other judgments of the Supreme Court relating to the contempt and subsequent disqualification of a member of the National Assembly, who also happened to be the leader of the House and thus the Prime Minister at the time. The first case relates to the contempt proceedings decided by seven Honourable Judges of the Supreme Court in suo moto case No. 04/2010 [PLD 2012 SC 553]. In this case the august Supreme Court, in line with its consistent view,
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had left the matter to be decided by the Speaker under Article 63(2) of the Constitution, after sentencing a member of the National Assembly for having committed contempt. The full Court of the august Supreme Court, having regard to the principle of separation of powers, left the matter of disqualification to the Speaker, pursuant to the powers vested under Article 63(2) of the Constitution. Pursuant to the said judgment, the Speaker gave her decision and the same was challenged before the Supreme Court, culminating in the judgment titled 'Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others' [PLD 2012 SC 774], The Supreme Court followed the principles, and affirmed the ratio decidendi laid down in the earlier judgment of "Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan' [PLD 2005 SC 52] besides citing with approval the case of 'Khawar Intezar Muhammad Khan v. Federation of Pakistan' [1995 MLD 1903]. The said judgments had been delivered in the context of determining the role of the Speaker under Article 63(2) of the Constitution. The principles enunciated in the two judgments unambiguously elucidate that it is the exclusive domain of the Speaker to apply his/her own mind judiciously, and after taking into consideration the relevant provisions on the subject, to decide as to whether any question as to the nature of the disqualification has arisen, which may justify making reference to the Chief Election Commissioner. However, in consideration of the facts and circumstances in the case of Muhammad Azhar Siddique (Supra) the Supreme Court held that as there was a determination by way of a final judgment delivered by the apex Court, therefore, giving effect thereto was binding on the Speaker under Article 190 of the Constitution. This is the only exception in our judicial jurisprudence to the settled rule that it is the exclusive domain of…
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