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Official Citation: 2023 IHC 170
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-01-17
Parties: Maj (R) Shahzad Saleem vs Federation of Pakistan etc.
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-01-17, officially reported as 2023 IHC 170. In this matter between Maj (R) Shahzad Saleem and Federation of Pakistan etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023IHC170
Court Name: Islamabad High Court Judge(s): Aamer Farooq (C.J) Title: Maj (R) Shahzad Saleem vs Federation of Pakistan etc. Case No.: W.P. NO.2667-2022 Date of Judgment:2024-01-17 Reported As: 2023 IHC 170 Result: Petition Disposed of
JUDGMENT
JUDGMENT AAMER FAROOQ C.J. This judgment shall decide instant writ petition as well as writ petitions mentioned in the Schedule attached herewith, as they are interlinked. 2. In all the writ petitions, the petitioners are aggrieved of the notices issued by Public Accounts Committee (PAC) for their attendance and/or directions issued by it. In this regard, in W.P. No.2667- 2022, W.P. No.2872-2022 & W.P. No.2742-2022, on the complaint of one Tayyaba Gul, PAC issued notices to the petitioners and also required to attend the proceedings before it pursuant to the complaint. The referred notices were issued through Office Memorandum dated 28.06.2022 requiring the referred petitioners to appear on 07.07.2022. Subsequently, on 07.07.2022, in the minutes of the meeting, it was decided that the said petitioners should appear before Public Accounts Committee (PAC) and provide it certain information and also justify the contents of the complaint. The referred minutes of meeting dated 07.07.2022 have been called in question by National Accountability Bureau (NAB) through W.P. No.2742-2022. In W.P. No.4370 2022 & W.P. No.4836-2022, the petitioners are the employees of Pakistan Science Foundation and are aggrieved of actions and directions issued by PAC. The petitioner in W.P. No.2272-2023 is an employee of NADRA Technologies Limited and is aggrieved of the directions by PAC. 3. Learned Additional Prosecutor General, NAB, appearing for NAB in W.P. No.2742-2022, inter alia contended it is not the domain of PAC to entertain a private complaint lodged by one Mrs. Tayyab Gul against the incumbents of NAB. It was submitted that function of PAC is purely to examine the accounts of the Organizations, to which, public funding is provided by the government exchequer and ancillary matters thereto; that allegation of sexual harassment and threats does not come
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within the domain of PAC. It was argued that PAC is a body/committee constituted through Rules of Procedure and Conduct of Business in the National Assembly, 2007 under the Constitution and its minutes are not protected in any way. In this regard, learned counsel made reference to a recent judgment of the Supreme Court reported as Pakistan Peoples Party Parliamentarian (PPPP) through its Secretary General and 4 others Vs. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and 4 others' (2022 PLD 574 Supreme Court), wherein it has categorically been held that immunity provided to the parliamentary proceedings is not universal and/or absolute but is restricted. It was contended that since the matter does not fall within the domain of PAC, hence issuance of notice, or calling of the petitioners/employees of NAB, on the complaint of one Mrs. Tayyaba Gul, is without lawful authority and beyond the jurisdiction of PAC. 4. Learned counsel for the petitioners in W.P. No.2667-2022 & W.P. No.2872-2022 endorsed the arguments of learned Additional Prosecutor General NAB and contended that calling of the employees of NAB is beyond the authority of PAC. It was submitted categorically that officials of NAB can be called by PAC for funding provided to it by the government or any matter related thereto, but not on the private complaint. In support of his contentions, learned counsel placed reliance on cases reported as Muhammad Zahid Akram Vs. Pakistan Agricultural Research Council (PARC) through its Chairman, Islamabad etc. (W.P. No.3228-2021), Nawab Khan Khattak Vs. Public Accounts Committee & Others (2002 YLR 2209), Nazir A.M. Joint Venture through Chief Executive Vs. The National Highway Authority through Chairman and 4 others (PLD 2020 Lahore 801), Decision of Lahore High Court dated 13.04.2022 in case titled Muhammad Hamza Shahbaz Sharif Vs. Province of Punjab and 4 others (W.P. Nos.21710 & 21711-2022), Muhammad Sibtain Khan and others Vs. Province of the Punjab etc (PLJ 2022 Lahore 675), Pakistan Muslim League Vs. Sardar Dost Muhammad Mazari and others (PLD 2022 Lahore 469). 5. Learned counsel for the petitioners in W.P No.4370-2022, W.P. No.4836-2022 & W.P. No.2272-2023 adopted the arguments by learned counsels mentioned above. 6. Learned counsel for PAC and National Assembly Secretariat inter alia contended that writ petitions are not maintainable on many counts; firstly, it was submitted that petitioners have no locus standi to file instant writ petitions, as no adverse order has yet been passed against them. It was contended that in the minutes of meeting, only it has been penned down to call them or make directions to FIA or other bodies to investigate the matter and nothing, as such, has been done; that on account of said fact, the petitioners are not aggrieved persons. It was submitted that even- otherwise, proceedings of PAC or other parliamentary committees are exempted from judicial scrutiny. In this regard, reference was made to Article 69 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). It was submitted that under the referred Article, the proceedings of the Parliament, including its Committees, are privileged and drew attention of the Court towards Article 66(5) of the Constitution. Learned counsel further drew attention of the Court towards minutes of meeting of the PAC to highlight that officials of NAB were not only called pursuant to the complaint filed by Mrs. Tayyaba Gul, but also on account of other funding and accounting matters. Reference was made to cases reported as Lt. Col Farzand Ali and others Vs. Province of West Pakistan through the Secretary (PLD 1970 SC 98), Commodore Retd. Shamshad Vs. FBISE (PLD 2009 SC 75), Wasi Zafar Vs. Speaker, National Assembly (PLD 1990 Lhr 401), Nawab Khan Khattak Vs. Public Accounts Committee & Others (2002 YLR 2209), Muhammad Ali Vs. Additional IG Faisalabad and others (PLD 2014 SC 753), Brig. Retd. Imtiaz Ahmed Vs. Government of Pakistan and two others (1994 SCMR 2142), Muhammad Zahid Akram Vs. Pakistan Agricultural Research Council (PARC) through its Chairman, Islamabad etc. (W.P. No.3228-2021), Asif Ali Zardari Vs. FOP and others (PLD 1999 Karachi 54), Muneer Hussain Bhatti, Advocate and others Vs. FOP and others (PLD 2011 SC 407), Action against distribution of
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development funds by Ex-Prime Minister Raja Pervaiz Ashraf (PLD 2014 SC 131) and Atif Riaz Vs. Federation of Pakistan through Secretary, Ministry of Religious Affairs, Islamabad (PLD 2023 Lah. 536). 7. Learned Additional Attorney General also adopted the arguments by learned counsel for National Assembly Secretariat, but added that petitioners have an alternate remedy by way of making a reference/representation before the Speaker, National Assembly. 8. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance. 9. Since an objection has been taken regarding maintainability of writ petitions with respect to Article 69 of the Constitution, hence the same is taken up first. 10. The issue of parliamentary privilege, as provided in Article 69 of the Constitution, was traced by this Court in case reported as Syed Yousaf Raza Gillani Vs. Federation of Pakistan etc. (2022 PLD Islamabad 326), in the following paragraphs:- "9. Like many other countries, the constitutional scheme of Islamic Republic of Pakistan (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; reliance is placed on case reported as 'Zia ur Rehman Vs. The State' (PLD 1973 SC 49). The underlined principle of this constitutional aspect of the governance in Pakistan means that no organ of the State should encroach on the domain and powers of the other State organ, however, judiciary though, as such, cannot encroach upon the powers and functions of the Legislature and/or Executive but has unique feature 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 Hon'ble Supreme Court of Pakistan). The possession of jurisdiction of 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 conceived by the courts over a period of time in various pronouncements. 12. In case reported as 'Bradlaugh Vs. Gosset' (1884 QB 271), the decision of the Queen's Bench Division of the High Courts of England and Wales, Mr. Bradlaugh was elected in the House of Commons for Northampton and expected that that Speaker shall administer his oath for participating in the affairs of the House of Commons, however, the Speaker ousted him by calling Serjeant-at-Arms instead of administering oath; in this behalf, the House of Commons also passed a resolution. The matter was agitated in the court and it was observed that House of Commons is not subject to the control of Her Majesty's Courts in her administration of that part of the statute law which has relation to its internal proceedings and that the use of actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable; it was added that whatever may be the reasons of the House of Commons for their conduct, it would be impossible for us to do justice without hearing and considering those reasons, but it would be equally impossible for the House, with any regard for its own dignity and independence, to suffer its reasons to be laid before us for that purpose; it was noted that House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly. In case reported as 'Church of Scientology of California Vs. Johnson Smith', simply another decision of the Queen's Division Bench reported as 'Bradlaugh Vs. Gosset' (1884 QB 271) was followed, as it was noticed that for modern purposes under Article 9 of the Bills of Rights, 1688, the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. In
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the House of Lords, the decision titled 'British Railways Board Vs. Pickin', the earlier decision regarding ouster of jurisdiction of the courts to impeach the proceedings of the Parliament, was upheld and followed. In a fairly recent judgment, the matter of questioning proceedings of the Parliament, came up before Supreme Court of United Kingdom in case titled 'R (On the application of Miller) Vs. The Prime Minister' [2019]UKSC 41; in the judgment of the Court handed down by Lady Hale and Lord Reed, the issue involved was whether the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful; one of the questions framed by the Court was whether the Prime Minister's advice to the Queens was justiciable in a court of law? United Kingdom Supreme Court noted that although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reasons for the courts to refuse to consider it; it was cited with approval from the judgment of the Divisional Court that almost all important decisions made by the executive have a political hue to them; it was added that nevertheless the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries; many if not most of the constitutional cases in our legal history have been concerned with politics in that sense; the Court concluded that Prime Minister's advice to the Queens was justiciable; the reasoning of the Court, on the merits of the case as noted in paras 64 to 70, is as follows:- "64. Article 9 provides: "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament." The equivalent provision in the Claim of Right of 1689, an Act of the Parliament of Scotland, is this: "That for redress of all grievances and for the amending strenthneing and preserveing of the laws Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members." 65. The first point to note is that these are Acts of Parliament. It is one of the principal roles of the courts to interpret Acts of Parliament. A recent example of this Court interpreting article 9 is R v Chaytor [2010] UKSC 52; [2011] 1 AC 684. The case concerned the prosecution of several Members of Parliament for allegedly making false expenses claims. They resisted this on the ground that those claims were "proceedings in Parliament" which ought not to be "impeached or questioned" in any court outside Parliament. An enlarged panel of nine Justices held unanimously that MPs' expenses claims were not "proceedings in Parliament" nor were they in the exclusive cognisance of Parliament. There is a very full discussion of the authorities in the judgments of Lord Phillips of Worth Matravers and Lord Rodger of Earlsferry which need not be repeated here. 66. That case clearly establishes: (1) that it is for the court and not for Parliament to determine the scope of Parliamentary privilege, whether under article 9 of the Bill of Rights or matters within the "exclusive cognisance of Parliament"; (2) that the principal matter to which article 9 is directed is "freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place" (para 47). In considering whether actions outside the Houses and committees are also covered, it is necessary to consider the nature of their connection to those and whether denying the actions privilege is likely to impact adversely on the core or essential business of Parliament; (3) that "exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament" (para 63); it was enjoyed by Parliament itself and not by individual members and could be waived or relinquished; and extensive inroads had been made into areas previously within exclusive cognisance. 67. Erskine May, Parliamentary Practice (25th ed 2019, para 13.12) is to similar effect:
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"The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the 17th century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of article IX. An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking." 68. The prorogation itself takes place in the House of Lords and in the presence of Members of both Houses. But it cannot sensibly be described as a "proceeding in Parliament". It is not a decision of either House of Parliament. Quite the contrary: it is something which is imposed upon them from outside. It is not something upon which the Members of Parliament can speak or vote. The Commissioners are not acting in their capacity as members of the House of Lords but in their capacity as Royal Commissioners carrying out the Queen's bidding. They have no freedom of speech. This is not the core or essential business of Parliament. Quite the contrary: it brings that core or essential business of Parliament to an end. 69. This court is not, therefore, precluded by article 9 or by any wider Parliamentary privilege from considering the validity of the prorogation itself. The logical approach to that question is to start at the beginning, with the advice that led to it. That advice was unlawful. It was outside the powers of the Prime Minister to give it. This means that it was null and of no effect: see, if authority were needed, R (UNISON) v Lord Chancellor [2017] UKSC 51, para 119. It led to the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. 70. It follows that Parliament has not been prorogued and that this court should make declarations to that effect. We have been told by counsel for the Prime Minister that he will "take all necessary steps to comply with the terms of any declaration made by the court" and we expect him to do so. However, it appears to us that, as Parliament is not prorogued, it is for Parliament to decide what to do next. There is no need for Parliament to be recalled under the Meeting of Parliament Act 1797. Nor has Parliament voted to adjourn or go into recess. Unless there is some Parliamentary rule to the contrary of which we are unaware, the Speaker of the House of Commons and the Lord Speaker can take immediate steps to enable each House to meet as soon as possible to decide upon a way forward. That would, of course, be a proceeding in Parliament which could not be called in question in this or any other court". As noted in the above judgment, the United Kingdom Supreme Court cited paragraphs from Erskine May's Treaties on the Law, Privileges, Proceedings and Usage of Parliament-24t Edition; as to the concept of Proceedings in Parliament' at pages 235 and 236, observed as follows:- "Proceedings in Parliament The terms proceedings in Parliament' has received judicial attention (not all of it in the United Kingdom) but comprehensive lines of decision have not emerged and indeed it has been concluded that an exhaustive definition could not be achieved. The primary meaning of proceedings, as a technical parliamentary terms, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognized by its inclusion in the formulation of article IX. An individual Member takes part in a proceedings usually be speech, but also various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a
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petition or report from a committee, most of such actions being time-saving substitutes for speaking. On a number of occasions, the House of Commons or a committee has endeavored to elucidate this very broad understanding. The Select Committee on the Official Secrets Act in 1938-39 argued that proceedings' covered both the asking of a question and the giving of written notice of the question, and as a Member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business. After considering the scope of the protection, the committee concluded: Cases may be easily imagined of communications between one Member and another or between a Member and a minister so closely related to some matter pending or expected to be brought before the House that, although they do not take place in the Chamber or a committee room, they form part of the business of the House, as for example where a Member sends to a minister the draft of a question, he is thinking of putting down, or shows it to another Member with a view to obtaining advice as to the property of putting it down or as to the manner in which it should be framed." 13. In so far as the Courts and Parliamentary Privilege' is concerned, it discusses the evolution of the concept of immunity' from impeachment of the proceedings from the courts and at page- 291, it was concluded that in general, the judges have taken the view that when a matter is proceedings of the House, beginning and terminating within its own walls, it is obviously outside the jurisdiction of the courts. 14. The above set of judgments from the jurisdiction of United Kingdom can be used only as a guideline for interpreting the provisions of the Constitution inasmuch as in all above judgments, United Kingdom courts laid down the law on the basis of their conventions, practices and privileges in the country inasmuch as United Kingdom does not have a written constitution unlike Pakistan. 15. Before deliberating upon the judgments and arguments addressed before the Court, relevant constitutional provisions are summarized for the sake of brevity. Article 50 of the Constitution defines Majlis-e-Shoora (Parliament) as consisting of the President and two Houses to be known respectively as the National Assembly and the Senate; Article 59 of the Constitution provides for The Senate' consisting of 104 members and as per Article 60, after the Senate has been duly constituted, it shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Chairman and a Deputy Chairman and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Senate shall elect another member as Chairman or, as the case may be, Deputy Chairman; under Article 61 of the Constitution, the provisions of sub-clauses (2) to (7) of Article 53 are to apply mutatis mutandis; the fundamental Article, with respect to which the controversy in the case in hand involved, is Article 69, which reads as follows:- "69. Courts not to inquire into proceedings of Majlis-e-Shoora Parliament).- (1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. (2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. (3) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article 66". Moreover, under Article 53 (7) (c) of the Constitution, the Office of Speaker or Deputy Speaker shall become vacant, if he is removed from office by a resolution of the Assembly, of which not less than seven day's notice has been given and which is passed by the votes of the majority of the
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total membership of the Assembly; under Article 61 ibid, provisions of sub-clauses (2) to (7) of Article 53 shall apply to the case of Chairman and Deputy Chairman Senate, meaning thereby that a Chairman or Deputy Chairman of the Senate, can be removed from the office by a resolution of Senate of which less not than seven day's notice has been given and it is passed by the votes of the majority of the total membership of the Senate. 18. There are three judgments of Hon'ble Supreme Court of Pakistan, which are crucial to the determination of the controversy raised in the instant appeal, viz 'Pakistan Vs. Ahmed Saeed Kirmani etc.' (PLD 1958 Supreme Court (Pak.) 397), 'Lt. Col. Farzand Ali and others Vs. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore' (PLD 1970 Supreme Court 98) and Muhammad Azhar Siddqiui and others v. Federation of Pakistan and others' (PLD 2012 SC 774), as the three discuss the question of jurisdiction of the courts to scrutinize the proceedings of the Parliament. 19. In case reported as 'Pakistan Vs. Ahmed Saeed Kirmani etc.' [PLD 1958 Supreme Court (Pak.) 397], the Court had to consider various provisions of the Constitution of 1956 and the controversy revolved around the election of Speaker of the National Assembly. After taking stock of the case law from jurisdiction of United Kingdom and examining Erskine May's Treaties on the law, Privileges, Proceedings and Usage of Parliament-24th Edition', the Hon'ble Supreme Court noted that the judges are therefore bound…
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