Analysis: The disqualification game

Published August 21, 2016
Procedure laid out under Article 62(3) of the Constitution
Procedure laid out under Article 62(3) of the Constitution

ISLAMABAD: After a spate of disqualification references was filed against Prime Minister Nawaz Sharif in the wake of the Panama Papers revelations, a veritable war of references has broken out in recent days. Both ruling and opposition parties are seeking the disqualification of each other’s members over various pretexts.

The Pakistan Tehreek-i-Insaf (PTI), former chief justice Iftikhar Mohammad Chaudhry’s Pakistan Justice and Democratic Party and Sheikh Rashid Ahmed’s Awami Muslim League have submitted references against Prime Minister Sharif and members of his family to the National Assembly speaker.

The Pakistan Peoples Party, Tahirul Qadri’s Pakistan Awami Tehreek and the PTI, meanwhile, have moved the Election Commission of Pakistan (ECP), maintaining that the prime minister had submitted incorrect statements of assets to the commission and are asking for his disqualification.

References against PM, other lawmakers can only be submitted to NA speaker who decides their fate

In a tit-for-tat response, PML-N members have already filed references asking for the disqualification of PTI leaders Imran Khan and Jahangir Tareen with the National Assembly speaker.

While it would seem that parties are using two parallel forums to deseat the prime minister and other members of parliament, the law is quite clear.

Article 63 of the Constitution, which deals with ‘Disqualifications for membership of Majlis-i-Shoora’, lists actions that could result in a member’s disqualification.

“If any question arises whether a member of parliament has become disqualified from being a member, the [National Assembly] speaker or ... [Senate] Chairman shall, unless he decides that no such question has arisen, refer the question to the ECP within 30 days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the ECP,” it reads.

The article goes on to say that the ECP “shall decide the question within 90 days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.”

Former ECP secretary Kanwar Dilshad told Dawn that once the National Assembly speaker decides that no question of disqualification arises, that is considered the final word on the matter. However, such a decision may be challenged before the Supreme Court.

Otherwise, if the matter is referred to the ECP or reaches the commission after 30 days, the commission will have to decide whether the member stands disqualified or not.

However, he claimed that even if the speaker recommended a member’s disqualification, the ECP would still have to conduct its own inquiry to determine whether the recommendation bears merit.

Veteran jurist S.M. Zafar told Dawn that this stipulation was included in the Constitution with the knowledge that once a candidate was elected to parliament after crossing all legal hurdles where his candidacy could be questioned, only the speaker of the house should have the power determine wither he or she could be disqualified.

It is a good constitutional provision, he said, which wasn’t put to good use because the office of the speaker — that should ideally be bipartisan — had remained under the influence of each respective ruling party.

“Had successive speakers been non-partisan in their manner, it would have strengthened democracy in the country and cemented the supremacy of parliament,” Mr Zafar lamented.

But Nawaz Sharif is not the first prime minister to be assailed by such challenges. In the 1980s, a ruling was issued by then-National Assembly speaker Fakhar Imam against prime minister Mohammad Khan Junejo.

Former federal minister Syeda Abida Hussain, who is also Mr Imam’s wife, said the ruling was based on evidence that the late prime minister’s party wasn’t registered with the ECP at the time. Since the 1985 general elections were not held on a party-basis, the ruling noted that Mr Junejo had simply formed the Pakistan Muslim League after the elections in order to get elected as the prime minister, by virtue of being the leader of the party.

Mr Dilshad was head of the commission’s PR wing at the time. He told Dawn that General Ziaul Haq had blocked the reference by issuing a presidential ordinance which declared the speaker’s reference ‘unconstitutional’.

To exact political revenge, Mr Junejo removed the speaker through a vote of no-confidence and had Hamid Nasir Chattha elected as the new speaker, Mr Dilshad said.

This is the first recorded instance of a ruling by the speaker against any sitting member. The next time a speaker gave a ruling in such a matter came in May 2012, after Yousuf Raza Gilani was charged with contempt of court for not writing to the Swiss government to open cases against president Asif Ali Zardari.

After a reference against the then-prime minister was filed by Shahid Orakzai, former speaker Dr Fehmida Mirza authored a detailed ruling rejecting the request for Mr Gilani’s disqualification on the grounds that he had committed contempt of court.

During the Musharraf years, National Assembly Speaker Chaudhry Amir Hussain shielded members of the PPP who broke away to form the PPP-Patriots. The party then filed references for the disqualification of members including Faisal Saleh Hayat, Rao Sikandar Iqbal and others, but the speaker took no action throughout his five-year stint as custodian of the house.

This was why a stipulation was added, through the 18th constitutional amendment, that the speaker had to take a decision on such references within 30 days, failing which the reference would automatically stand referred to the ECP.

ECP route

Nearly all five petitions, which the ECP has clubbed together, primarily allege that the prime minister and his family members had deliberately lied in their statement of assets and liabilities submitted to the commission.

Under section 42A of the Representation of People Act (Ropa) 1976, each member of parliament is bound to submit details of assets and liabilities for him/herself, their spouses and dependents. If a statement is “found to be false in material particulars”, the law treats it as a ‘corrupt practice’.

The punishment prescribed for corrupt practices, under section 80 of the same law, is up to three years in prison and a maximum fine of Rs5000, or both.

The law also specifies that in such a case, a sessions judge will be the competent authority to hear a case against the member of parliament in question, who will have the opportunity to challenge the judge’s decision before a high court division bench. But since Ropa defines this as a cognisable offence, an individual can also directly move a sessions court, rather than coming to the ECP first.

In any case, if the ECP finds cause to proceed with the matter, it will also issue orders to a sessions judge to initiate proceedings, who can then hand out a punishment or acquittal, as the case may be.

But it is interesting to note that under Article 63 of the Constitution, a person is only ineligible for membership of parliament if they have been convicted for not less than two years. Therefore, even if someone goes to jail for one year, or any period less than two years, they could still not be disqualified from membership of parliament.

Mr Dilshad recalled how the National Accountability Bureau (NAB) had asked the ECP in 2005 to take action against PPP Chairperson Benazir Bhutto and her spouse Asif Ali Zardari, for allegedly providing false information about their assets.

He claimed that hawks in NAB wanted the ECP to register cases against the couple for corrupt practices, but the commission was of the opinion that only an individual could approach the courts to challenge the veracity of statements of assets and liabilities. Although NAB did eventually institute the cases, the slate was wiped clean by the National Reconciliation Ordinance.

Published in Dawn, August 21st, 2016



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