Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mrs. FARYAL TALPUR VS Respondent: PROVINCE OF PUNJAB through Chief Secretary, Lahore and 6 others
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title:Mrs. FARYAL TALPUR vs PROVINCE OF PUNJAB through Chief Secretary,
Lahore and 6 others Case No.: WRIT PETITION NO.2387 of 2019 Date of Judgment:2019-09-13 Reported As: PLD 2020 Lahore 122, 2019 LHC 3171 Result: Petition allowed Judgment MIRZA VIQAS RAUF , J. The petitioner herein is a member of Provincial Assembly of Sindh. She was arrested on 14th June, 2019 by the National Accountability Bureau (hereinafter referred as "N.A.B"), Rawalpindi on account of her involvement in an offence, subject matter of Accountability Court Reference (A.C.R) No.02 of 2019. After her arrest the petitioner was produced before the Accountability Court No.II, Islamabad (respondent No.6). After being remained on physical remand, the petitioner was finally sent to judicial custody vide order dated 09 August, 2019, in consequence thereof, she is now confined in Central Jail Adiyala, Rawalpindi. 2. As the session of the Provincial Assembly of Sindh was in progress, so Speaker of the Assembly in exercise of powers vested upon her under Rule 82(2) of the Rules of Procedure of the Provincial Assembly of Sindh, 2013 (hereinafter referred as "Rules, 2013") summoned the petitioner , being member of the Assembly to attend the session till prorogation through an order dated 15 August, 2019 addressed to respondents No.1 to 5 (hereinafter referred as "contesting respondents") including the Secretary to Government of Pakistan, Ministry of Interior , Islamabad. It is the grievance of the petitioner that despite adopting all possible modes, she has not been allowed to attend the session of the Assembly in compliance of the production order issued by the Speaker , hence this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred as "Constitution") seeking writ of mandamus in the form of a direction to "contesting respondents" to make all necessary arrangements for allowing the petitioner to attend the current session of the Provincial Assembly of Sindh as well as future sessions and its standing committees of which she is a member or chairman. 3. At the time of preliminary hearing of this petition, learned Advocate General Punjab tendered his appearance before the Court and raised certain preliminary objections qua its maintainability . After hearing the respective contentions of both the sides, the petition was admitted for regular hearing by way of order dated 02nd September , 2019 in furtherance thereof "contesting respondents" submitted their joint written statement.th th
---
## Page 2
4. Mr. Mujeeb-ur-Rehman Kiani, learned Additional Advocate General for Punjab at the very outset submitted that he wants to raise multiple preliminary objections with regard to the competency of instant petition and as such he be allowed to proceed first. It is contended by the learned law officer that production order dated 15 August, 2019 was for the previous session and with its prorogation this petition has become infructuous. He added that Federal Government was a necessary party and without any formal order from the Central Government, the production order is not enforceable against the Province of Punjab. While making reference to Rule 82(3) of "Rules, 2013", it is submitted that production order issued by the Speaker can only be enforced against the Government of Sindh or the Authority under whose control the petitioner is held in the custody. Maintained that petitioner is in judicial custody of Accountability Court Islamabad as such this Court lacks territorial jurisdiction. In order to supplement his contentions, learned law officer also referred Article 141 of the "Constitution". In the last, it is emphatically argued that the present case has its own facts and the judgment in the case of "Mr. ASIF ALI ZARDARI, SENATOR versus FEDERATION OF PAKISTAN through Secretary Interior, Pakistan Secretariat, Islamabad and others" (1999 SCMR 2166) is not applicable. 5. On the contrary , Mr. Farooq H. Naeek, Advocate for the petitioner after giving factual resume of the case submitted that there is no cavil that production order dated 15 August, 2019 was for the previous session till its prorogation but now a fresh session of the Assembly has been convened for which Speaker has issued a fresh order , so the contention of learned law officer is misconceived that writ has become infructuous. Learned counsel contended that petitioner is in the custody of prison authorities under the control of Province of Punjab and as such production order is to be complied with by "contesting respondents". It is further contended while making reference to Article 149 of "Constitution" that intervention of the Federation is neither necessary in the matter in hand nor it is imperative to implead the Federal Government as party . In order to rebut the argument of his adversary on the basis of Article 141 of "Constitution", Mr. Farook H. Naek after making reference to certain constitutional provisions submitted that intergovernmental cooperation and coordination in administrative and legislative matters is one of the basic theme of "Constitution". In furtherance to that he has referred the case of "ACTION AGAINST DISTRIBUTION OF DEVELOPMENT FUNDS BY EX-PRIME MINISTER RAJA PERVAIZ ASHRAF: In the matter of Constitution Petition No.20 of 2013" (PLD 2014 Supreme Court 131) and "PUNJAB HIGHER EDUCA TION COMMISSION versus Dr . AURANGZEB ALAMGIR and others" (PLD 2017 Lahore 489 ). 6. Mr. Salman Talibuddin, learned Advoca te General Sindh submitted that matter in issue is not a factual dispute but it relates to the adherence of law and its implementation. He added that while ignoring the production order of the Speaker , the "contesting respondents" are denying the right of freedom of movement to the petitioner as guaranteed under the "Constitution". Learned Advocate General Sindh in the end submitted that he undertakes that if the petitioner be allowed to attend the session of the Assembly , she will be brought back as and when her appearance is needed before the Accountability Court by the "N.A.B". Placed reliance on "ASIF Ali ZARDARI versus FEDERA TION OF PAKIST AN and others" (PLD 1999 Karachi 54 ). 7. After having heard all in attendance, I have also perused the record with their able assistance. Adverting to the first question raised by the learned law officer on behalf of the "contesting respondents" it is observed that there is no denial to the fact that petitioner is a member of Provincial Assembly Sindh. Being the member of the legislative assembly on the one hand, she has to attend the sessions to contribute her bit to the business of the Assembly and on the other, she has to represent her constituency. If the petitioner is precluded and debarred from attending the sessions of Assembly, it would amount to denial of her right to represent the people and in that event her constituency would go unrepresented. While dealing with a similar issue in the case of "Makhdoom JAVED HASHMI versus THE ST ATE and 2 others" (2003 PCr .LJ 266) this Court held as under :- "6...The petitioner during his period of custody contested the election for the seat of National Assembly . His nomination papers were scrutinized, the objections were repelled and he stands elected as member of the National Assembly from Lahore. This development has two-fold dimensions, firstly as a Legislator he has to attend the Sessions of the National Assembly to contribute his bit in the business of Parliament and, secondly , he has to represent his Constituency . If the opportu nity to attend the Sessions of Parliament is not given to the petitioner itth th
---
## Page 3
would be denial of his right to represent the people. In that event even his const ituents would go unrepresented which would be violative of their Constitutional rights 8. This might be a debatable question that whether a member of Parliament in custody is vested with an automatic right to attend the session in all eventualities or he/she can only be allowed to attend the session when a production order has been passed by the Speaker to this effect. Since the matter in hand is related to second limb of above referred question, so it would be apt for this Court to confine itself to the moot point instead of pondering upon a matter which is not in issue. 9. This petition is an offshoot of order dated 15 August, 2019 of the Speaker of Provincial Assembly Sindh, whereby she required the summoning of the petitioner being member of the Assembly to attend the session till prorogation. Admittedly the session in question was started on 12 June, 2019 and it ended on 02 September, 2019, during the pendency of this petition. This is surely the sole reason which prompted learned Additional Advocate General Punjab to assert that writ petition has become infructuous but I am afraid such contention is highly ill founded and misconceived due to multiple reasons. Firstly after passing of the production order, the petitioner made all her endeavors before the concerned authorities to get it implemented but after receiving no positive response, she first approached the learned Islamabad High Court through Writ Petition No.2961 of 2019 which was disposed of vide order dated 27 August, 2019 in the following manner :- "The learned counsel for the petitioner has been heard at length. The grievance of the petitioner is regarding refusal by the Government of Punjab to implement the production order issued by the Speaker, Provincial Assembly of Sindh so as to enable her to attend the proceedings. The petitioner has thus sought a writ against the Government of Punjab and the Superintendent Central Prison, Adyala. Both are situated outside the territorial jurisdiction of this Court. The prayer sought in this petition, therefore, cannot be granted due to lack of territorial jurisdiction. However, the petitioner, if so advised, may approach the High Court vested with territorial jurisdiction relating to the Government of Punjab for redressal of her grievance. This petition stands disposed-of accordingly." The petitioner then preferred the instant petition and during its pendency the session of the Assembly stands prorogated. This Court while exercising constitutional jurisdiction is not supposed to shut its eyes on the developments occurred during the pendency of lis and the reasons for such events. Even otherwise no party can be knocked out merely on the basis of technicalities if once it is established that there is infringement of any right, constitutional provision or law. Secondly the Governor of Sindh in exercise of powers conferred upon him by clause (a) of Article 109 of "Constitution" has summoned the Provincial Assembly of Sindh to meet on 13 September, 2019 i.e. today and the Speaker issued a fresh production order of the petitioner. The direction to the "contesting respondents" through instant petition is yet not confined to the previous session but it was for future sessions of the Assembly as well. 10. So far role of Federal Government is concerned, suffice to observe that produc tion order stems from Rule 82 of "Rules, 2013" which reads as under :- "82. ARREST AND PRODUCTION OF A MEMBER:- (1) When a member is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a court or is detained under an executive order, the committing judge, magistrate or executive authority , as the case may be, shall immediately intimate such fact to the Speaker indicating the reasons for the arrest, detention or conviction, as the case may be, as also the place of detention or imprisonment of the member in the appropriate form set out in the Fourth Schedule. Provided that no member shall be arrested or a notice of arrest shall be served on him within the precincts of the Assembly (2) The Speaker or Chairman of a Comm ittee may summon a member in custody to attend the sitting(s) of the Assembly or meeting(s) of a Committee of which he is a member , if he considers his presence necessary . (3) On a production order signed by the Secretary or by any other officer authorized in this behalf, addressed to the Government or the Authority where the member is held in the custody , the Government or such Authority shall cause the member in custody be produced before the Sergeant-at Arms, who shall after the conclusion of the sitting or the meeting deliver the member into the custody of the Government or other Authority , as the case may be. "th th nd th th
---
## Page 4
It is clearly manifest from sub-rule 3 that a production order can be addressed to the Government or the Authority where the member is held in the custody . Though "Government" is defined in the "Rules, 2013" as Government of Sindh but "Authority" is nowhere defined in the rules ibid. In order to find out the literal or plenary meaning of the word "Authority" we will have to seek guidance from the law dictionaries. Black' s Law Dictionary Tenth Edition provides the definition of "Authority" as "The official right or permission to act, esp. to act legally on another 's behalf; esp., the power of one person to affect another 's legal relations by acts done in accordance with the other 's manifestations of assent; the power delegated by a principal to an agent <authority to sign the contract>. - Also termed power over other persons. "The term 'authority,' like the term 'contract,' may easily be used in three senses, and is therefore a term to be avoided when accurate reasoning is desirable. It may be used to mean (1) the operative acts of the principal, (2) a physical document executed by the principal, or (3) the legal relations consequent upon the preceding operative facts (1) and (2), and especially the legal power conferred upon the agent to bring the principal into new legal relations without any further action by the principal. The operative facts may be spoken words, a document together with the acts necessary to execute it, or other conduct by the principal apparently expressing an intention to create a power. Hereafter, the word 'authority' will be used to denote these operatives facts; in other cases the word power will usually be substituted. This latter word is not so likely to be taken in shifting senses, in spite of the fact that 'power of attorney' generally means a physical document under seal." Websters' s New Twentieth Century Dictionary portrays the meaning of "Authority" as noted below :- "1. the power or a right to command, act, enforce, obedience, or make final decision; jurisdiction. 2. this power as delegated to another; authorization; as, he has my authority to do it. 3. the power derived from opinion, respect, or esteem; influence of character or of fice. 4. testimony; witness. 5. weight of testimony; credibility; as, a historian of no authority . 6. a person or thing that may be appealed to for support of an opinion an act. 7. warrant; justification. 8. in law , a precedent or decision of a court; an of ficial declaration, an eminent opinion or saying. 9. the author of authoritative statement, or one commanding the respect of others; also, a book containing the writings of such an author . 10. the of ficers of government; the persons or the body exercising power of command. " Cambridge Dictionary defines "Authority" in the following manner : "Authority noun POWER 1 the moral or legal right or ability to control: The United Nations has used/exerted/exercised its authority to restore peace in the area. - We need to get the support of someone in authority (=an important or high-ranking person). - They've been acting illegally and without authority (=permission) from the council. - [+ to infinitive] I'll give my lawyers authority (= permission) to act on my behalf. - He's got no authority over (= ability to control) his students. - She spoke with authority (= as if she was in control or had special knowledge). 2 a group of people with official responsibility for a particular area of activity: the health authority - the local housing authority 3 the authorities [plural] the group of people with official legal power to make decisions or make people obey the laws in a particular area, such as the police or a local government department: I'm going to report these holes in the road to the authorities. EXPERT 4 an expert on a subject: She's a world authority on 19th-century Irish history." Whereas in LEXICO "Authority" is defined as under : "Noun (authorities) 1 The power or right to give orders, make decisions, and enforce obedience. 'he had absolute authority over his subordinates' 'a rebellion against those in authority' 2 (often authorities) A person or organization having political or administrative power and control. 'health authorities issued a worldwide alert' " After going through the dictionary meaning of the word "Authority" it can safely be observed that since the petitioner is confined in Central Jail Adyala, Rawalpindi so far all intents and purposes "contesting respondents" can be
---
## Page 5
termed as Authority mentioned in sub-rule 3 of Rule 82 of the "Rules, 2013". The intervention or command of the Federal Government is thus not necess ary for causing the production of the petitioner in the session of the Assembly . Needless to observe that Federal Government in such eventuality is neither necessary nor proper party to this petition and non-impleadment of the Federation would have no adverse bearing on this petition. 11. Next comes the matter of enforcement or execution of an order for production issued by the Speaker of an assembly of a Province into another. Before pondering upon this important aspect it would be advantageous to understand the theme of the "Constitution" with regard to cooperative Federalism, intergovernmental corporation and coordination in administrative and legislative matters as ordained in Part V of Chapter 2 of the "Constitution". In this context case of "PUNJAB HIGHER EDUCA TION COMMISSION versus Dr. AURANGZEB ALAMGIR and others" (PLD 2017 Lahore 489) is a guider one wherein this Court ruled as under :- "21. Constitution is not a straitjacket, but a breathing document, that is alive and living. Intergovernmental cooperation and coordination in administrative and legislative matters under Chapter 2 of Part V of the Constitution reflect constitutional vitality. The biological architecture of our constitution rests on co-operative federalism, which is a concept of federalism in which national, state and increasingly local governments interact cooperatively and collectively to solve common problems, rather than making policies separately. Cooperative federalism, also known as marble-cake federalism, is a form of federalism where there is mixing of powers, resources, and programs between and among the national, state, and local governments. Federalism is a system of government in which power is divided between a central government and regional or sub-divisional governments. In marble cake federalism there will be an intermingling of all levels of government in policies and programming. This is also known as co-operative federalism. Cooperative Federalism simply refers to making federalism work through cooperation between various levels of government. It emphasizes the partnership between the different levels of government providing effective public service for the nation...the various levels of governments, under this arrangement are seen as related parts of a single government system, and characterized more by cooperation and shared functions than by conflict and competition. A critical feature of cooperative federalism is the balance it strikes between complete federal preemption (a preemptive federalism) and uncoordinated federalism (dual federalism). Under preemptive federalism, federal law preempts a provincial law to enter the common legislative field. While under dual federalism two legislatures retain their uncoordinated domains. Cooperative Federalism blends these two models. Cooperative federalism rejects the suggestion that federal law demands uniformity in all situations. Rather, cooperative federalism presumes that supplementation of a uniform minimum standards should be left to the States. Supreme Court of Canada went further in acknowledging that the principle of federalism encouraged intergovernmental cooperation. It rejected rigid formalism and favoured accommodating cooperative intergovernmental efforts to challenge complex issues that could not be allocated to any specific head of power. Cooperative federalism is embedded into our constitutional architecture under Part V. Chapter 1 of this part deals with distribution of legislative powers, while chapter 2 deals with administrative relations between Federation and Provinces. Chapter 3 deals with special provisions including Council of Common Interest (CCI) which is forms the fulcrum of cooperative federalism under our Constitution. 22. Cooperative Federalism, being an intrinsic part of our constitutional design, is also an effective and potent interpretative tool for the courts. The overlap in legislative space between the Federation and the Province over standards in institutions of higher education and education and the limits of exclusivity under Article 142 of the Constitution can be resolved through purposive interpretation with this clear constitutional purpose in mind. Article 142 opens with: "subject to the Constitution." This means that while interpreting the article, other provisions of the Constitution and foundational constitutional principles envisaged in the Constitution will take preference over Article 142. The legislative subjects of standards in institutions of higher education and education have to be contextualized within the constitutional architecture of federalism and made to co-exist under the principles of cooperative federalism. Courts must, therefore, favour functional coexistence of the federal and provincial statutes in cases where there is vertical sharing or an overlap of legislative powers. Cooperative federalism flowing
---
## Page 6
through the Constitution helps prevail over and dilute the exclusivity of Article 142 into a more workable and constitutionally compliant inclusivity. Giving both the legislatures space to co-exist. Only in cases of irreconcilable inconsistency between the federal and provincial statutes, Article 143 provides a solution, but only as a last recourse. Constitutional Court of South Africa when dealing with a similar issue held: where two legislature have concurrent powers to make laws in respect of same functional areas, the only reasonable way in which these powers can be implemented is through co-operation. And this applies as much to policy as to any other matter. It cannot therefore be said to be contrary to the constitution for Parliament to enact legislation that is premised on the assumption that the necessary cooperation will be offered and which requires provincial administration to participate in cooperative structures and to provide information or formulate plans....and are relevant to finding the best solution to an impasse that has arisen.". Justice Iacobucci, speaking for the Supreme Court of Canada in Husky Oil, held: In closing, although I find there to be no conflict between section 133 (1) and the Bankruptcy Act, I posit that, even if there were to be some element of conflict, this must be evaluated in light of the fact that the provincial legislation is intra vires. Legislation that is intra vires is permitted to have an incidental and ancillary effect on a federal sphere. I would emphasize again that this court has traditionally declined to invoke the parmountcy doctrine in the absence of actual operational conflict. I am uncomfortable with the "water tight". approach to federal bankruptcy legislation propounded by the respondents. To interpret the quartet as requiring the invalidation of provincial laws which have any effect on the bankruptcy process is to undermine the theory of cooperative federalism upon which (particularly post war) Canada has been built....it is appropriate to adopt as narrow a definition of operational conflict as possible in order to allow each level of government as much area of activity as possible within its respective sphere of authority." In Attorney General for Saskatchewan, Supreme Court of Canada held: "Given the guiding principle of cooperative federalism, paramountcy must be narrowly construed. Whether under the operational conflict or the frustration of federal purpose branches of the paramountcy analysis, courts must take a "restrained approach", and harmonious interpretations of federal and provincial legislation should be favoured over interpretations that result in incompatibility... Constitutional doctrine should give due weight to the principle of cooperative federalism... this principle allows for some interplay, and indeed overlap,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.