RULING
IN
THE MATTER OF SYED YOUSAF RAZA GILLANI, PRIME MINISTER OF PAKISTN UNDER CLAUSE
(2) OF ARTICLE 63 OF THE CONSTITUTION
1.
The Criminal Petition
No.06 of 2012 in Suo Motu case No.4 of 2010 was decided by the Supreme Court of
Pakistan vide Short Order dated 26.4.2012 whereby the Prime Minister of
Pakistan was punished under Section 5 of Contempt of Court Ordinance, 2003
(Ordinance V of 2003) with imprisonment till the rising of the Court. Sentence
was executed forthwith. The detailed judgment was released on 8.5.2012. Both
the Orders have been conveyed to me.
2.
Meanwhile, on 30.4.2012,
a reference under clause (2) of Article 63 by Moulvi Iqbal Haider was also
received in my office. He prayed for referring the question of
disqualification of Syed Yousaf Raza Gillani from being a member, to the
Election Commission, as he has become disqualified from being a member of the
Assembly due to his conviction by the Supreme Court of Pakistan under Contempt
of Court Law.
3.
I have gone through the
said reference application, the Short Order and detailed judgment of the
Supreme Court. I have also gone through the relevant provisions of the
Constitution and the Contempt of Court Ordinance, 2003.
4.
Before proceeding
further, I may like to show my serious concerns regarding letters through which
Short Order and detailed judgment of the Supreme Court were separately conveyed
by the Assistant Registrar writing for Registrar and addressed directly to the
Speaker. The Speaker holds a constitutional position. She is an elected
head of the House and guardian of the rights of 342 Members of the country,
representing the will of the people of Pakistan. The provision of clause
(2) of Article 72 of the Constitution confers the privilege upon the Speaker to
preside over a Joint Sittings of the Majlis-e-Shora (Parliament), comprising
446 members. She may often require to perform the functions of the President of
Pakistan under Article 49. The Speaker is placed in Article 2 of Warrant of
Precedence. In view of the above, the office of the Speaker demands the
highest respect from other organs of the State and functionaries of the
Government. The contents of the letters are in bad taste and also against
the parliamentary norms and traditions.
5.
Now coming to the point
as to whether any question arises for disqualification of a member from
being a Member of Parliament under clause (2) of Article 63 of the Constitution
on the basis of material and information placed before me and the powers and
jurisdiction of the Speaker under the said Article. I may like to reproduce the
provision of clause (2) of Article 63 as under:-
“If any question arises whether a
member of the Majlis-e-Shoora (Parliament) has become disqualified from being a
member, the Speaker or, as the case may be, the Chairman shall, unless he
decides that no such question has arisen, refer the question to the Election
Commission within thirty days and if he fails to do so within the aforesaid
period it shall be deemed to have been referred to the Election Commission.”
6.
It would be advantageous
here to quote the case law on the subject. It has been held in Kanwar Intizar
Muhammad Khan VS Federation of Pakistan and others reported in 1995 MLD Lahore
1903 that the Speaker while examining a reference under Article 63 (2) of the
Constitution is not supposed to act merely as post office. If a reference is
submitted to him, he is not bound to forward/transmit the same, to the Chief
Election Commissioner for decision forthwith. The Speaker has to apply
his own mind judiciously after fully taking into consideration the relevant
provisions on the subject and then decide as to whether “any question” in the
nature of disqualification has “arisen” which may justify the making of
reference to the Chief Election Commissioner.” The same view was also
expressed by Supreme Court of Pakistan in PLD 2005 SC 52.
7.
The Supreme Court framed
the following charge against Syed Yousaf Raza Gillani, Prime Minister of
Pakistan:-
“That you, Syed Yousaf Raza Gillani,
the Prime Minister of Pakistan, have willfully flouted, disregarded and
disobeyed the direction given by this Court in para 178 in case of Dr. Mobashir
Hassan v Federation of Pakistan (PLD 2010 SC 265)” to revive the request by the
Government of Pakistan for mutual legal assistance and status of civil party
and the claims lodged to the allegedly laundered moneys lying in foreign
countries, including Switzerland, which were unauthorizedly withdrawn by
communication by Malik Muhammad Qayyum, former Attorney General for Pakistan to
the concerned authorities, which direction you were legally bound to obey and
thereby committed contempt of Court within the meanings of Article 204 (2) of
the Constitution of Islamic Republic of Pakistan, 1973 read with section 3 of
the Contempt of Court Ordinance (Ordinance V of 2003), punishable under Section
5 of the Ordinance and within the cognizance of this Court. We hereby direct
that you be tried by this Court on the above said charge.”
8.
It appears from above,
that no specific charge regarding the propagation of any opinion or acting in
any manner against the independence of the judiciary or defaming or ridiculing
the judiciary as contemplated under Article 63 (1) (g) has been framed.
9.
I may like to cite here
the case of Mr. Makhdoom Javed Hashmi, the then MNA who, vide judgment dated:
12th April, 2004 passed by Sessions Judge, Islamabad in Session case
No.52 of 2003 was convicted and sentenced to imprisonment of 19 years in
aggregate under sections124-A/131/109/505 (a)/ 468/471/500/469, PPC.
10.
Makhdoom Javed Hashmi, MNA on 26.08.2004 filed three separate nomination papers
as candidate for ascertainment of the Leader of the House. The Government side
raised objection that Mr. Hashmi being convicted is no more Member of
National Assembly as he has become disqualified under Article 63 (1) (g) for
propagating and defaming the Armed Forces of Pakistan, therefore, he cannot be
a candidate for ascertainment of the Leader of the House and his nomination
papers be rejected. However the former Speaker of the National Assembly
over ruled the objection and accepted the nomination papers of Mr.
Hashmi on 26.08.2004 and accordingly the Secretariat made all the
arrangements/preparations for ascertainment of the Leader of the House for
27.8.2004 between two contesting candidates i.e. Mr. Shoukat Aziz and Makhdoom
Javed Hashmi.
11.
In the light of what has been stated above, I am of the view that the charges
against Syed Yousaf Raza Gillani are not relatable to the grounds mentioned in
paragraph (g) or (h) of clause (1) of Article 63, therefore, no question of
disqualification of Syed Yousaf Raza Gillani from being a member arises under
clause (2) of Article 63 of the Constitution. The letters of the Assistant
Registrar (IMP) for Registrar of the Supreme Court stands answered
accordingly. Furthermore, the petition of Moulvi Iqbal Haider, Advocate
being without any merit, is not maintainable and accordingly rejected.
Sd/
DR. FEHMIDA MIRZA
Speaker
National Assembly
Dated: 24th May, 2012
Islamabad.
