Court can’t disqualify premier, AG tells SC

Published November 1, 2014
A security person stands outside the Supreme Court of Pakistan premesis in Islamabad. — File photo by AP
A security person stands outside the Supreme Court of Pakistan premesis in Islamabad. — File photo by AP

ISLAMABAD: Attorney General (AG) Salman Aslam Butt urged the Supreme Court on Friday to throw out petitions seeking the disqualification of Prime Minister Nawaz Sharif for an alleged misstatement on the floor of the National Assembly.

In a concise statement before the apex court to answer questions raised by petitioner Gohar Nawaz Sindhu, the AG stated that after the elections, a member’s disqualification was the jurisdiction of the National Assembly speaker, Senate chairman and the Election Commission of Pakistan (ECP).

Also read: IHC rejects petition to disqualify PM Nawaz

At the last hearing on Oct 23, the bench headed by Justice Jawwad S. Khawaja had ordered the AG to submit a concise statement on Mr Sindhu’s petition after delinking it from those filed by Pakistan Tehreek-i-Insaf leader Ishaq Khakwani and the Pakistan Muslim League chief Chaudhry Shujaat Hussain.


Salman Butt says parliamentary proceedings are privileged, can’t be challenged in court


All three petitioners are seeking the PM’s disqualification for an allegedly false statement he made in the National Assembly on Aug 29 when he said that the government did not ask the army chief to mediate or become a guarantor between the government and the protesting parties, PTI and Pakistan Awami Tehreek.

In his rejoinder, the AG explained that the proceedings of parliament could not be called into question by any court. In addition, the jurisdiction invoked by Mr Sindhu could not be exercised by the courts due to the factual nature of the dispute and the requirements of the Constitution, clearly reinforced after the 18th Amendment.

The 18th Amendment has introduced Article 10A in the Constitution as a fundamental right and requires that for the determination of civil rights in any criminal charge against a person, the accused is entitled to a fair trial and due process.

The AG emphasised that the assumption of a jurisdiction by the court, which falls within the domain of another branch of the government, would upset the delicate equilibrium between different organs of the state and the Constitution and would disrupt the smooth functioning of the government.

Mr Sindhu’s petition, he argued, sought the disqualification of members of the parliament, which is not a fundamental right but a substantive part of the constitutional scheme, which should be taken up before the returning officers who allowed the prime minister to contest elections.

Mr Sindhu has not pleaded a violation of any of his fundamental rights, the AG said, adding that the petitioner had also sought to call proceedings of the parliament into question.

Article 63 (2 and 3) of the Constitution lays down the complete procedure for disqualification and in the present case, the basis on which disqualification is being sought is a statement said to have been made on the floor of the House, the AG said.

This statement is protected under Articles 66 and 69 of the Constitution, since the parliamentarian enjoys complete freedom of speech in respect of anything said in the House and is not liable to any proceedings in this respect, except Article 68 of the Constitution, the rejoinder emphasised.

Moreover, the AG explained, the Constitution has also expressly limited the court’s jurisdiction with regards to the proceedings of parliament. This mutual respect and deference between the legislature and the judiciary is also reflected in Articles 68 and 69 of the Constitution. The matter of a members’ disqualification, therefore, is in its nature a “political question”, which falls under the constitutional purview of the NA speaker, Senate chairman and the ECP, the AG pleaded.

The rejoinder argued that there was no substance in the arguments as adduced by the petitioner.

The question of disqualification of any member cannot be considered an ordinary issue because the membership, procedure and business of parliament were unique in character. Parliament is the highest legislative body under the Constitution and, accordingly, has been afforded a special constitutional status.

Published in Dawn, November 1st, 2014

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