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Petitioner: Pakistan Tehreek-e-Insaf through its Secretary General Mr Asad Umar VS Respondent: Speaker of the National Assembly of Pakistan through its Secretary National Assembly Sectt. & 126 others
Court Name: Islamabad High Court Judge(s): Athar Minallah (C.J) Title:Pakistan Tehreek-e-Insaf through its Secretary General Mr Asad Umar vs
Speaker of the National Assembly of Pakistan through its Secretary National Assembly Sectt. & 126 others Case No.: W.P. No.2892/2022 Date of Judgment:2022-09-06 Reported As: 2022 IHC 214 Result: Accordingly Dismissed Judgment ORDER Athar Minallah, C.J. Pakistan Tehreek-e-Insaf (hereinafter referred to as the "petitioner Party") has invoked the jurisdiction of this Court vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") seeking a declaration that the acceptance of resignations of 123 members of the National Assembly by the then Deputy Speaker vide notification, dated 13-04-2022, had taken effect and that the worthy Speaker has no power or jurisdiction regarding confirmation / verification thereof. Moreover, a further declaration has been sought to the effect that the worthy Speaker is bound to forward the 123 accepted resignations of PTI MNAs en bloc to the Election Commission of Pakistan to enable it to de-notify all the 123 members at one time and the same time and issue schedule for the bye-election. In addition the following directions have also been sought:- "(ii) The directions may please be issued: (a) to the Resp.No.1/Speaker National Assembly to forthwith notify the aforementioned 123 resignations of PTI's MNAs, en bloc to the Election Commission of Pakistan, instead of illegally and malafidely delaying the matter on the pretext of so-called illegal verification, or forwarding the same in a piecemeal manner for ulterior political motivation; and (b) to the Election Commission of Pakistan to de-notify all the 123 Members and declare their seats as vacant at one and the same time, instead of doing it in a piecemeal manner for the political considerations and advantage of the present government."
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2. It is the case of the petitioner Party that during the proceedings relating to the vote of no confidence against the Leader of the House, it was decided in a meeting of the Parliamentary Party held on 11-04-2022, chaired by its Chairman, Mr Imran Khan, that elected representatives of the party in the National Assembly shall tender their resignations. This was followed by an announcement by the Deputy Parliamentary Leader of the petitioner Party, Mr Makhdoom Shah Mehmood Qureshi on the floor of the House. The written resignations of 125 members were submitted. Consequently, the Deputy Speaker, Mr Qasim Khan Suri, accepted the resignations "en mass" followed by notification, dated 13-04-2022, issued by the Secretary, National Assembly Secretariat. However, members were not notified by the Election Commission of Pakistan nor their notifications as returned candidates were withdrawn. 3. According to the report submitted on behalf of the National Assembly Secretariat, 131 resignation letters were received. Two members, Mohammad Nawaz Allai and Jawwad Hussain later informed in writing that their resignations were not genuine. According to the stance of the Secretariat, the resignations were not notified and the file was resubmitted to review the decision regarding acceptance of the resignations. Mr Qasim Khan Suri resigned on 16-04-2022 from the office of Deputy Speaker and Raja Pervaiz Ashraf was elected as the Speaker of the National Assembly. The latter, on 16-04-2022, gave a ruling in the House pursuant to point of order raised by one of the members, Mr Sardar Ayaz Sadiq, directing the Secretariat to resubmit the resignations for verification in the light of the past rulings and precedents of the superior courts. 4. Mr Faisal Fareed Chaudhry, learned ASC, has been heard at length on behalf of the petitioner Party. He has argued that an inquiry or verification is not a condition precedent for acceptance of a resignation under Article 64 of the Constitution; the resignations were accepted by the Acting Speaker vide notification, dated 13-04-2022; the said notification has taken effect; the petitioner Party has decided to take fresh mandate from the people of Pakistan; the worthy Speaker was not empowered to review the decision of the Acting Speaker notified vide order/notification, dated 13-04-2022; the Secretariat is required to send the notification, dated 13-04-2022, to the Election Commission; the members whose resignations were accepted have not objected nor challenged the decision of the Acting Speaker. 5. Mr Irfan Qadir, learned ASC, has appeared on behalf of the National Assembly Secretariat and has raised multiple objections regarding maintainability of the petition. He has placed reliance on the judgment of this Court reported as PLD 2015 Islamabad 156 titled "Syed Zafar Ali Shah v. Federation of Pakistan, through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad and 34 others" in support of his contention that the purported notification, dated 13-04-2022, issued pursuant to decision of the Acting Speaker was unconstitutional, void and illegal. He has further argued that the worthy Speaker has initiated the process of verification of the resignations in the light of the principles and law highlighted in the aforementioned judgment of this Court. 6. With the able assistance of the learned counsel for the petitioner Party, the judgment of this Court in Syed Zafar Ali Shah's case, supra was carefully perused. The relevant portion is reproduced as follows.- "17. It is obvious from the above precedent law that for a resignation to take effect under Article 64 of the Constitution, it is not enough that the member has written it under his or her name addressed to the Speaker. The crucial test, or mandatory prerequisite for the seat to become vacant on resignation, is the fulfillment of the Constitutional duty of the Speaker to be satisfied that three factors are established; firstly, that it is tendered voluntarily, secondly, it is genuine and lastly, that the member actually intended to relinquish, relieve or quit the post, position or seat and thereby vacate the seat. It is also not enough that the member who has tendered the resignation makes public announcements in this regard, or presents him or herself in mass before the
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Speaker. The Speaker is under a Constitutional duty to undertake an inquiry personally to satisfy himself regarding the three factors or requirements in each case independently. The aforementioned three requirements are to be "proved positively" to the satisfaction of the Speaker. Furthermore, if before the inquiry is concluded, or/and the Speaker has not passed any order, nor achieved the level of satisfaction so required for giving effect to the resignation, the member retracts by communicating in any manner, whether in writing or through conduct, such as by making a public announcement, or attending the sittings of the National Assembly, then the resignation written and addressed to the Speaker becomes ineffective as it is no more valid and no further order or action would be required. 18. It would also not be out of context to look at the scope and meaning of the two expressions i.e. 'genuine' and 'voluntary' which have to be positively proved to the satisfaction of the Speaker. 'Genuine' has been defined in Black's Law Dictionary, 8th Edition as (of a thing) authentic or real; something that has the quality of what it is purported to be or to have <the plaintiff failed to question whether the exhibits were genuine> (of an instrument) free of forgery or counterfeiting <the Bank teller could not determine whether the signature on cheque was genuine>. Likewise the definition in the 4th Edition is, 'As applied to notes, bonds, and other written instruments, this term means that they are truly what they purport to be, and that they are not false, forged, fictitious, simulated, spurious, or counterfeit'. 'voluntary' has been defined as "Done by design or intention <voluntary act>, 'unconstrained by interference; not impelled by outside influence; spontaneous; acting of oneself without valuable consideration; gratuitous. The scope and meanings are expansive and, therefore, determines the heavy bar of duty on the Speaker in reaching the level of satisfaction required to give effect to the resignation, thereby depriving the actual stake holders of the seat in the National Assembly, i.e. the people of the concerned constituency. This becomes even more important, as highlighted in the precedent law, when the resignations have been given in mass by Members belonging to a particular political party. It is for this reason that the august Supreme Court has laid stress in Abdul Razique Khan v. The Province of Sindh, supra, that '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'. 19. The nature of the political arena is such that while the member may have individually written his resignation addressed to the Speaker, coupled with announcing it publically, yet may not have intended to actually relinquish or quit the seat. Such reasons may be countless and unfathomable. Our political history is replete with such instances as affirmed and reflected in the cases referred to above. Mass resignations have been handed over to please the leader of a political party, or it may also have been tendered as an expression of protest without actually intending to completely relinquish ties with the seat against which the people had elected the Member. It is settled law that the Constitution has, therefore, clearly vested these powers in the Speaker, and to his or her satisfaction pursuant to undertaking an inquiry. If the Speaker has not attained the level of satisfaction required, the resignations will remain ineffective. Even if the Speaker has expressed his satisfaction that the resignations were not intended to be voluntary or genuine, or that the member had not intended to relinquish his or her seat, the judicial review of such opinion formed by the Speaker and his satisfaction will remain beyond the pale of jurisdiction of this Court under Article 199 of the Constitution. Similarly, if the member retracts during the inquiry undertaken by the Speaker and before the latter gives effect thereto, the resignation becomes automatically ineffective In such an eventuality, no direction by way of issuing a writ of mandamus can be issued in exercise of powers vested by this Court under Article 199 of the Constitution, as there is no law which requires the Speaker to give effect to an instrument which has become ineffective. It would be otherwise if the seat falls vacant due to the action or order of the Speaker, which has been taken or passed without lawful authority or
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jurisdiction. This fine distinction will be discussed in the following paragraphs. The "satisfaction" of the Speaker in refusing to give effect to a resignation can neither be made the subject of a judicial review by this Court in exercise of its jurisdiction under Article 199 of the Constitution, nor may be substituted by an opinion or satisfaction of its own. The Court does not merely consider the Member who is holding a seat, but simultaneously has to protect and guard the interests of its constituents who may be adversely affected by giving effect to the resignation, even though the Speaker is not satisfied that such an event took place. There is no force in the argument of the petitioner that the Speaker has no role, as it is not in consonance with settled law as discussed above. 20. In order to understand and appreciate the genesis of the above principles, particularly the onerous duty imposed on the Speaker under Article 64 of the Constitution, to exercise extreme care and caution before giving effect to a resignation, it would be relevant to examine the scheme of the Constitution and the law relating to filling a seat of the National Assembly and the vacation thereof. Article 50 of the Constitution provides that the Majlis-e-Shoora (hereinafter referred to as the 'Parliament) shall consist of the President and two Houses, respectively known as the National Assembly and the Senate. Article 51 provides for the composition of the National Assembly and the manner in which its 342 seats are to be filled. 272 seats, divided amongst provinces and other specified areas, fall under the category known as general seats. The general seats are filled by members from each constituency through election by direct and free vote in accordance with law, while the sixty seats reserved for women or the minorities are filled in the manner as provided under Article 51(6) of the Constitution. The qualifications and disqualifications for membership of the Parliament are provided in Articles 62 and 63 of the Constitution. The vacation of a seat is to take effect under Article 64. Likewise Chapter 2 of Part IV of the Constitution provides for the elections for filling the seats in the respective Provincial Assemblies. Part VIII of the Constitution i.e. Articles 213 to 226, specifically relate to elections. The Election Commission of Pakistan has been established as a constitutional entity, inter alia, to organize and conduct the elections and to make such arrangements as are necessary for ensuring that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. Article 222 provides that subject to the Constitution, the Parliament may make laws, inter alia, for the conduct of elections and election petitions; the decision of doubt and dispute arising in connection with elections. Article 225 places a constitutional bar to the effect that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by the Act of Parliament. Article 59 exclusively relates to the Senate. 21. In order to provide for the conduct of elections to the National Assembly and the Provincial Assemblies and to guard against corrupt and illegal practices and other offences related to or in connection with the elections, the legislature has enacted the Representation of Peoples Act, 1976 (hereinafter referred to as the 'Act of 1976). Similarly the Senate (Election) Act, 1975 (hereinafter referred to as the 'Act of 1975') has been enacted to provide for the conduct of elections to the Senate and for matters connected therewith. Both these laws comprehensively cover the conduct of elections and provide for a scheme to resolve election disputes. Section 52 of the Act of 1976 and section 34 of the Act of 1975 provides that no election can be called in question except by an election petition made by a candidate for that election. The contents of the petition have to be precise. Under Section 63 of the Act of 1976 an election petition is liable to be dismissed if there is non-compliance with the provision of section 54 or section 55. While in case of the Act of 1975 similar provisions are contained in section 44 thereof. The non-compliance is fatal and the august Supreme Court has consistently held that the provisions are mandatory as no power or jurisdiction is vested in the Tribunal to dispense with or cure such non-compliance. It is further
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noted that it is settled law that the burden of proof in election matters for establishing corrupt or illegal practices, inter alia, rigging, under the two Statutes has been placed at par with the burden of proof in a criminal case. Not every person but only one of the candidates to the concerned seat may challenge the election of a returned candidate and the elections will be set aside or declared void if he is able to prove the allegations beyond a shadow of doubt and the returned notified candidate is entitled to the benefit of doubt. Affirming the law laid down in PLD 1957 SC 91, the Supreme Court held in Saeed Hassan v. Pyar Ali and 7 others [PLD 1976 SC 6] as follows.-- "While agreeing with the proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non-commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged--" Reliance in this regard is also placed on the cases of Ram Singh and others v. Col. Ram Sing [AIR 1986 SC 3], Syed Qutub Ahmed v. Syed Faisal Ali Subzwari and others [2007 CLC 1682], Dr. Abdul Sattar Rajpar v. Syed Noor Muhammad Shah and 8 others [2005 YLR 937], Capt. Syed Muhammad Ali v. Salim Zia [1999 CLC 1026]. 22. In other words, the law relating to elections, filling of seats in the Assemblies or setting aside the elections provides for highly stringent requirements, particularly for declaring an election void and resultantly allowing the seat to fall vacant. We may pose a question to ourselves, as to why such a high bar has been prescribed under the special laws for matters having the consequence of vacation of a seat? Why have the framers of the Constitution and the legislature made it so difficult, stringent and challenging for removing a returned candidate once he has filled the seat against which he had been elected by the constituents? 23. The reason for examining the election laws in the context of the instant petition was to discover the intention of the framers of the Constitution and the legislature for placing such a high bar by imposing an onerous duty on the Speaker to ensure satisfaction regarding the three requirements, already discussed above, before giving effect to the resignations. Why is such sanctity attached to exercising extreme care and caution in any proceedings which may have the effect of vacation of a seat in the National Assembly? Why is it so essential to uphold the sanctity of elections by drawing an analogy with the principles of criminal law in establishing an allegation beyond a shadow of doubt? The Constitution and the law unambiguously intend and envisage that once a person has been elected and duly notified, and has filled a seat in the Parliament, then the vacation of the seat is neither taken for granted nor such a consequence can take effect if there is doubt that the cause is not clearly established. The answer is simple. A Member of the National Assembly filling a seat is not just an individual, nor the actual stakeholder of this exalted and revered position. He or she acts on behalf or as an agent for the hundreds and thousands of constituents who are the real occupants and claimants of the seat. The sanctity attached to the elections, particularly the stringent requirements to be fulfilled before it would lead to the vacation of a seat, is based on one solemn universal principle, that the 'will of the people is sacrosanct'. The 342 Members of the National Assembly are elected by the eligible voters and, therefore, they represent the 180 million people of Pakistan. The National Assembly and Senate seats are in fact not merely to be filled casually and occupied by individuals, each one of them represents the will and aspirations of the people. Vacation of the seat, for any reason, whether under Article 64 or for corrupt or illegal practice, inevitably has the effect of depriving the actual stakeholders, the people of the constituency, of their rights, without affording them an opportunity of due process. We are afraid that the bye-elections are not a panacea to a wrongful vacation of seat or an erroneous setting aside of the election. A wrongful, erroneous, doubtful or questionable vacation of a seat in the National Assembly, or setting aside of an election, violates the sanctity attached to the Parliament, and above all undermines the 'will of the people'. The wrongful vacation of a seat
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cannot be compensated through bye-elections, and it is for this reason that the bar of standard has been kept so high for the satisfaction of the Speaker regarding the three requirements, so as to exclude any doubt lest the will of the people of the concerned constituency be wrongfully undermined and resultantly adversely affect their fundamental rights. The law leans in favour of keeping the seats filled once the returned candidate has been notified. This also explains the distinction earlier discussed relating to a situation when the resignation has been given effect wrongfully and the other when the Speaker is either not satisfied that the resignation has been tendered voluntarily and was intended to quit or relinquish the seat, or it becomes ineffective having been retracted. The former eventuality may entitle an aggrieved person, either a constituent or the concerned member, to invoke the jurisdiction of this Court, while in the case of the latter there would be no lis justifiable as discussed earlier. 24. We now revert to considering whether there is any question requiring our intervention under Article 199 of the Constitution. What emerges from the facts admitted in the petition, or argued before us, and publically known are that, PTI announced protests and held sit-ins (Dharna) on the Constitution Avenue in front of the Parliament; during the protest the Members of National Assembly elected on the tickets of PTI, pursuant to the party policy, had tendered mass resignations in their respective hand writings, by addressing the same to the Speaker; some Members later informed the Speaker of their intention to retract, the others refused to appear before the Speaker individually, as required by the latter for his satisfaction that each had resigned voluntarily, that the resignations were genuine and that they actually intended to relinquish or quit their respective seats; negotiations, in the meanwhile, were initiated between the political party in power i.e. PML(N) and PTI with the assistance of other political parties in the Parliament, and the disputes were resolved by the promulgation of an Ordinance; pursuant to the said Ordinance the honourable Chief Justice of Pakistan has constituted a three member Commission; consequently, PTI publically announced to retract the resignations and attend the session of the Parliament, while the inquiry undertaken by the Speaker had neither been concluded nor had any order been passed by him; this fact came to the knowledge of the petitioner through the media and consequently respondents Nos.7 to 35 attended and participated in the Joint Session of the Parliament. Is there any matter to be adjudicated, or would such adjudication be justifiable in the light of the admitted facts and the law discussed above? As discussed above in detail, and in the light of the settled law, the resignations have become ineffective and ceased to be valid as, admittedly, before the Speaker could complete his inquiry and satisfy himself regarding the three essential requirements for giving effect, the respondents Nos.7 to 35 publically announced retraction of the resignations and have attended the proceedings. Assuming that the Speaker had passed an order expressing his satisfaction that the resignations were not to take effect, the matter would still have been out of the pale of jurisdiction of this Court, nor would the petition have been maintainable under Article 199 of the Constitution. 25. Lastly, we will consider whether the matter placed before us is justiciable on the touchstone of the doctrine of political question? It is settled law that political questions are out of the scope of jurisdiction of this Court under Article 199 of the Constitution. It has been consistently held that as a rule political questions, as far as possible, should not be decided by Courts and ought to be left for consideration to the authority vested with such power under the Constitution, and particularly to the wisdom of the Parliament. It is further noted that such rule is not absolute and the Courts do not refuse to exercise its jurisdiction of judicial review if the aggrieved person demonstrates that the question raised, though having political content, involves a legal or constitutional issue. Reliance is placed on PLD 2015 Islamabad 7 and PLD 2012 Lahore 515. The honourable Justice Hamood-ur-Rehman, Chief Justice of Pakistan, as he then was, has aptly observed in the case of The State v. Zia-ur-Rehman and others (PLD 1973 SC 49), that while exercising the power of
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judicial review, the judiciary claims no supremacy over the other organs. Even where it declares a legislative measure unconstitutional and void, it does not do so because the judicial power is superior in degree or dignity of the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It…
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