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Petitioner: Muhammad Riaz Khan Fatyana & 29 others VS Respondent: Speaker National Assembly JUDGMENT
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Muhammad Riaz Khan Fatyana & 29 others vs Speaker National Assembly
JUDGMENT
Reported As: 2023 LHC 2719 Result: Petition Allowed Judgment JUDGMENT Shahid Karim, J:-. This litigation has its provenance in a notice of resolution dated 08.03.2022 given by the joint opposition to table a vote of no confidence against Mr. Imran Khan, the then Prime Minister of Pakistan under clause 1 of Article 95 of the Constitution of Islamic Republic of Pakistan, 1973 ("The Constitution") read with rule 37 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 ("the 2007 Rules). There is not much daylight between the parties on the basic facts which form the background of these three petitions (W.P No.8360 of 2023, W.P No.11705 of 2023 and W.P No.11707 of 2023) which have commonality of questions of law regarding legality or otherwise of the resignations submitted by the petitioners and which were accepted by the Speaker National Assembly ("the Speaker"). The notification in respect of the petitioners in W.P No.8360 of 2023 was issued on 22.01.2023 and consequent upon that, the Election of Pakistan (ECP) issued a notification dated 25.01.2023 de-notifying certain Members of National Assembly which are now the petitioners before this Court. In W.P No.11705 of 2023 and W.P No.11707 of 2023 the impugned notifications are dated 20.01.2023 and 17.01.2023 respectively ("The Impugned Notifications"). 2. The facts are refreshingly simple and are stated below: On 10.04.2022 the No Confidence Motion was passed against the former Prime Minister Mr. Imran Khan. On 11.04.2022 on the directions of the leaders of Pakistan Tehreek-e-Insaf (PTI) with Mr. Imran Khan as its Chairman, 123 Members of the National Assembly including the petitioners submitted their resignations en bloc. On 13.04.2022 the then Acting Speaker accepted all 123 resignations under rule 43 of the 2007 Rules. The Deputy Speaker resigned on 16.04.2022 and Raja Pervaiz Ashraf
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was elected as the Speaker National Assembly. On the same date, the newly elected Speaker reviewed and reversed the decision of the Acting Speaker Mr. Qasim Suri and directed the National Assembly Secretariat to resubmit the cases of resignations for verification in the light of rulings of the superior courts and rule 43 of the 2007 Rules. On 30.05.2022 the petitioners were invited in the Chamber of Speaker to verify their resignations and it is admitted on all hands that the petitioners did not appear before the Speaker and the matter was left undecided. There are intervening events which need not be adverted and which relates to resignations of 11 Members and their acceptance. Those Members are not before this Court. While PTI as a party stuck to its stance that the resignations had lawfully been accepted by the Acting Speaker on 13.4.2022, it brought a constitutional petition W.P No.2892 of 2022 before the Islamabad High Court. This was brought by the Secretary General of PTI seeking setting aside of the order of Speaker National Assembly in reviewing the earlier decision of the Acting Speaker dated 13.4.2022. The present petitioners were not petitioners before Islamabad High Court and so did not seek the relief which was being asked for by the Secretary General of the party and it is so contended by the learned counsel for the petitioners that this clearly showed that the petitioners had no intention of tendering resignations which was merely done on dictation of higher office bearers of the party. In short, according to the petitioners, they were merely following the directions of the party leadership which had made a political decision for the resignations to be tendered and which would, in the opinion of the party leadership, have a spiral effect leading to elections and a fresh mandate from the people of Pakistan. The constitutional petition was dismissed. In doing so, the previous judgment of Islamabad High Court reported as Syed Zafar Ali Shah v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan (PLD 2015 Islamabad 156) was reiterated. That judgment addressed the broader question regarding prerequisites for acceptance of a resignation by the Speaker National Assembly which we shall see is a well-worn path. More significantly the Islamabad High Court refused to set aside the decision of the Speaker National Assembly in reviewing the earlier decision dated 13.4.2022 by the then Acting Speaker of the National Assembly. Further the Islamabad High Court concluded that the then Acting Speaker National Assembly had, on 13.4.2022, accepted the resignations without following the principles laid down in the precedents of the superior courts as well as the 2007 Rules and thus the notification dated 13.4.2022 was issued in violation of the Constitution and those precedents. The Speaker National Assembly has also accepted the judgment handed down by the Islamabad High Court and makes a reference to that judgment in the letters which were addressed to the petitioners calling upon them to visit the Chamber of the Speaker National Assembly and to verify their resignations individually. On 15.12.2022 the Vice Chairman PTI, Shah Mehmood Qureshi wrote a letter to the Speaker calling upon him to accept the resignations of the Members of the National Assembly belonging to PTI. A reply was sent by the Speaker National Assembly to the Vice Chairman PTI on 22.12.2022 (the Speaker's Reply) and that reply had some significant features and is set out below: "I am directed to refer to the letter dated 15th December, 2022 on the above subject and to state that verification of resignations is settled principle and indispensable according to the Rules of Procedure and Conduct of Business in the National Assembly, 2007, parliamentary practices, Ruling of the Chair and decisions of superior courts. In this regard Rule 43 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007 is reproduced here for ready reference:- 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
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(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 Election Commission 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. 2. The Islamabad High Court vide judgment 2015 PLD 156 and again in W.P. 2892/2022 upheld the decisions of the Speakers regarding not accepting resignations of Members of the National Assembly without verification thereof. The Supreme Court of Pakistan has seconded the said decision of the Islamablad High Court. It has been held that before accepting a resignation of a member the Speaker has to satisfy himself regarding genuineness and voluntary character of the resignation. 3. The MNAs of Pakistan Tehreek-e-Insaf who submitted their resignations on 11th April 2022 were invited in the Chamber of Honourable Speaker vide this Secretariat letters dated 30th May, 2022 for verification of their resignations from 6th to 10 June, 2022 in pursuance of paragraph (b) of sub-rule (2) of rule 43 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, but none of them came for verification of their resignations. 4. In view of above, Honourable Speaker shall again invite these MNAs in his Chamber one by one for verification of their resignations in pursuance of paragraph (b) of sub-rule (2) of rule 43 of the Rules of Procedure and Conduct in the National Assembly, 2007, please." The first feature which strikes the reader is regarding the reliance of the Speaker National Assembly on rule 43 of the 2007 Rules as well as the judgment of the Islamabad High Court in Zafar Ali Shah. In so relying the Speaker National Assembly was of the considered view that the resignations ought to be verified and for the purpose an inquiry was a sine qua non on the part of the Speaker National Assembly and which was yet to be held and for which the Members are required to be present before the Speaker National Assembly to individually and personally verify the tendering of resignations. In paragraph 4 of this reply sent on his behalf the Speaker National Assembly has indicated that "Honourable Speaker shall again invite these MNAs in his Chamber one by one for verification of their resignations in pursuance of paragraph (b) of sub-rule (2) of rule 43 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, please." It is the case of the petitioners in W.P No.8360 of 2023 is that they had signified their intention to withdraw their resignations but without adverting to this aspect the impugned notification was issued by the Secretariat of the National Assembly on 22.01.2023. In the other two petitions viz. W.P No.11705 of 2023 and W.P No.11707 of 2023 the petitioners do not contend that they withdrew their resignations prior to issuance of the impugned notifications. This is the only distinction amongst these constitutional petitions. During the interregnum, a delegation of PTI met with the Speaker National Assembly on 29.12.2022 to impress upon the Speaker for individual verification of the resignations as a legal requirement and further to hammer in the importance of individual verification prior to acceptance of the resignations. Apparently by this, PTI had decided in its political wisdom to join the National Assembly and required its Members to attend the proceedings of the National Assembly and to
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play its part as the Opposition in the House. The petitioners in W.P No.8360 of 2023 contend that the letters of withdrawal of their resignations were sent to the Speaker National Assembly by the petitioners through an email at 8:30 a.m. on 23.01.2023 and the Secretary of the National Assembly was also informed that the petitioners had withdrawn their resignations. This was also done through a WhatsApp message. They also visited the Secretary of the National Assembly on 23.01.2023 and filed an application regarding withdrawal of their resignations. Despite this, the Speaker National Assembly accepted the resignations and consequently the impugned notification was issued by the Secretary. 3. The facts adumbrated lead to the ineluctable conclusion that the Speaker National Assembly did not complete the inquiry regarding the tendering of resignations by the Members of PTI and no decision was made in this regard as none has been placed on record. The only document from which this decision can be inferred is the impugned notification issued by the Secretariat of the National Assembly. The further conclusion that can be drawn is that the Speaker National Assembly contrary to his own showing as reflected in various letters written to the Members as well as to the Vice Chairman PTI, proceeded to accept the resignations and directed the Secretary of the National Assembly to issue the impugned notifications. In the letter dated 30.05.2022 issued by the Addl. Secretary, National Assembly Secretariat to the individual members who are now the petitioners before this Court, it was stated that: "I am directed to refer to the letter dated 11-4-2022 regarding your resignation from the seat of the National Assembly and to state that in pursuance of paragraph (b) of sub-rule (2) of rule 43 of the Rules of Procedure and Conduct of Business in the National Assembly, 2007, Honourable Speaker has desired to invite you in his Chamber for inquiry regarding voluntary character and genuineness of aforesaid resignation letter before its acceptance. 2. You are, therefore, requested to call on Honourable Speaker on Tuesday, the 7th June, 2022 at 12:05 p.m in his Chamber, please. 4. Doubtless, by the above letter, Speaker National Assembly set in motion the process for an inquiry into the submission of resignations from individual members and relied upon rule 43 of the 2007 Rules in this regard. This was followed by reiteration of the same principle in the Speaker's reply on 22.12.2022 to the Vice Chairman PTI which has already been set out above. This stated position of the Speaker National Assembly was firstly reflected in the act of reviewing the earlier notification dated 13.4.2022 by which the Acting Speaker of the National Assembly had accepted the resignations of 123 members of PTI. In sum, there is absolutely no doubt as inferred from the documents explicated above that Speaker National Assembly was of the firm view that an inquiry into the genuineness of the resignations was a prerequisite and must be completed by the Speaker before a decision was reached with regard to the resignations. The impugned notifications issued by the Secretariat of the National Assembly are contrary to the stated position of the Speaker National Assembly as also offend the precedents of the superior courts as well as the obligation cast upon the Speaker National Assembly in terms of paragraph (b) of sub-rule (2) of rule 43 of the 2007 Rules. 5. In resolving the controversy, Article 64 of the Constitution and rule 43 of the 2007 Rules would be engaged. Article 64 of the Constitution provides that: "64. (1) A member of 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 sittings." 6. At first blush, Article 64 is couched in simple terms and states that a member of Parliament may by writing under his hands addressed to the Speaker or to the Chairman of the Senate resign his
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seat. There could not be a simpler procedure for an act of resignation by a member of the Parliament. Yet in the peculiar political landscape of Pakistan, the superior courts have intervened to carve out rules which cast an obligation on the Speaker National Assembly to undertake an inquiry into the circumstances which led to the tendering of a resignation by a member of the Parliament who intends to resign his seat. These rules and the prerequisites so enunciated by the superior courts are now cast on a tablet of stone and this aspect is not disputed by the Speaker National Assembly and is clearly discernable from the missive that were exchanged between the Speaker National Assembly and the members as well as with the PTI leadership. 7. Rule 43 of the 2007 Rules provides that: "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 Election Commission 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. Therefore, apart from the holding of the superior courts on this aspect, the Rules of Procedure and Conduct of Business in the National Assembly have also been enacted which oblige the Speaker National Assembly to conduct an inquiry to satisfy himself that a resignation is voluntary and genuine. This process has to be set in motion upon receipt of the letter of resignation and only upon completion of this process shall the Speaker inform the Assembly of the resignation. This obligation was sought to be performed by the Speaker National Assembly when it was suddenly terminated and the impugned notifications were issued by the Secretariat of the National Assembly. The fact that the Speaker failed in his duty to comply with the terms of rule 43 is sufficient for the impugned notifications to be declared without lawful authority and of no legal effect. 9. The courts, however, put further constraints upon the Speaker National Assembly in accepting or rejecting the resignation of a member of the Parliament. These precedents have been handed down in the peculiar backdrop of the history of this country where resignations have been tendered or procured by the leadership of a political party sans independent decision-making on the part of an individual member. Not only that a reading of Article 64 would clearly show that its tenor refers to the resignation of an individual member. In our political history however, there have been instances where en bloc tendering of resignations has been taking place and this has led the courts to formulate prior conditions to be fulfilled for their acceptance. 10. Mirza Tahir Beg v. Syed Kausar Ali Shah and others (PLD 1976 Supreme Court 504) is a watershed case and has been followed in later judgments. It will not be necessary to refer to each
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judgment which dealt with the issue of resignations. I will only be referring to three major cases in which the question fell for determination. The consideration of case law therefore starts with Mirza Tahir Beg. 11. The facts which formed the background of the case and which led the Supreme Court to lay down the rules to be followed by the Speaker National Assembly are peculiar in nature and merely signify one of numerous instances in which resignations may be tendered and so enhances the importance of an inquiry to be conducted. 12. The appellant Mirza Tahir Beg was the President of Lahore Branch of Pakistan Peoples Party (PPP) and his resignation was received by the Speaker of the Punjab Legislative Assembly. The resignation was accepted and a notification was duly issued. A report was later on lodged by one Mirza Aziz Ullah who was the cousin of the appellant and it was stated that the appellant had been kidnapped earlier in the day and had been forced to resign his seat from the Provincial Assembly. On 17.2.1974, Mirza Tahir Beg sent telegram to the Speaker as well as the Prime Minister, the Governor and other authorities complaining that he had been made to sign his resignation and there was no intention on his part to resign his seat. It was under these circumstances that the Supreme Court analyzed the question regarding validity of a resignation. The following observations of the Supreme Court will be reproduced in extenso in order to appreciate the circumstances under which the holding of the Supreme Court was handed down: "In the instant case, the Speaker if I may say so with respect, treated the whole matter casually. Apart from the mechanical endorsement on the resignation brought to him by Syed Kausar Ali Shah, he remained insensitive to the extraordinary circumstances surrounding the resignation. The appellant is a resident of Lahore and in the normal course should have himself banded over his resignation to the Speaker, or should have dispatched it to the Speaker through ordinary mail. No question appear to have been asked from Syed Kausar Ali Shah as to bow be secured. the resignation and whether he was authorised to present it before the Speaker. Ordinarily, this should have raised curiosity if not suspicion in the mind of the Speaker. 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). The Speaker in the instant case laboured under the false motion that he need not look beyond the surface of the document presented to him by Syed Kausar Ali Shah, particularly when the appellant did not disown his signature on it. Unfortunately, this stand was endorsed by the High Court while dismissing Writ Petition No. 286/74 moved by the appellant and in support of its decision, the High Court relied on this Court's judgment in A.K. Fazalul Qadir Chuudhry v. Shah Nawaz. In that case a member of the National Assembly addressed his resignation to the President instead of the Speaker. Like the appellant herein, he did not deny his signature on the resignation. Later, his resignation was forwarded by the President to the Speaker who acting on it declared the seat of the resigning member vacant resulting in a bye election. With reference to Article 107 of the 1962 Constitution which is in pari materia with Article 64 of the present
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Constitution. But what the learned Judges missed was that it was held by this Court that the communication to the Speaker "is an essential ingredient of the application of Article 107 of the Constitution". The Court went on to observe in that case "that the transmission of the resignation to the Speaker in the absence of express authorisation by the member concerned was not valid" and therefore the notification by the Speaker declaring the vacancy and the resulting bye. election were set aside with one sweep as being without lawful authority. 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. See Craies on Statute Law, 6th Edition, page 111, under the caption "Implication". Where an enabling or remedial statute omit details, the treatise mentioned numerous cases in which omission relating to matters of procedure were supplied by the rule of liberal construction. Similarly, in Article 168 under the caption "Implications" in the Statutory Construction by Crawford, 1940, it is stated :- "The implications and intendments arising from the language of a statute are as much a part of it as if they had been expressed . .…
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