OF late, the term ‘production order’ has gained much greater currency in our political discourse than before. As more members of the national parliament or a provincial assembly are picked up by the police on one charge or the other, the demand to produce them in the house is raised by their party colleagues as soon as the sitting of the legislature is convened.
It is generally the speaker of the national or provincial assembly or the chairman of the Senate who has the authority to summon a member who is in police custody to the sitting of the concerned legislature or of one of its committees.
Although the rules of the legislatures also authorise the chairpersons of the committees to call a detained committee member to the meetings, these cannot, in effect, be successfully applied without the consent of the speaker or the chairman because production orders are to be signed by the secretary of the legislature or another officer designated by the presiding officer.
At the heart of a production order is the right of the people, who elected the lawmaker, to be represented in the legislature through their elected representative.
At the heart of a production order is people’s right to be represented in parliament by their elected lawmaker.
It is a widely accepted democratic principle that until such time an elected representative is disqualified by a court of law, he or she cannot be denied the responsibility or the right to represent his or her constituents at all relevant fora — whether it is the legislature or any of its committees of which the lawmaker in question is a member. It is another matter and probably a side issue that such production opportunities do provide a very welcome respite to the detained legislator from the punishing confinement of a prison or detention centre.
While dealing with the cases of issuing production orders for legislators belonging to parties opposed to the party of the speaker, a serious dilemma sometime arises. Although the presiding officers are expected to act in a purely nonpartisan manner as custodians of their respective houses, the fact is that they are members of one political party or the other and the parties which nominated them to occupy that position expect them to serve their party interest, and this is where the speakers have to face the twin pressures of their position and their party.
Gohar Ayub, speaker of the National Assembly from 1990 to 1993, faced this pressure when he issued production order for a detained Asif Ali Zardari, husband of the then leader of the opposition, at the risk of displeasing his party the PML-N and its leader prime minister Nawaz Sharif.
Similar was the difficult position of Syed Yousuf Raza Gilani who as speaker from 1993 to 1996 and at the risk of displeasing his party, the PPP, and its leader prime minister Benazir Bhutto, issued production orders for several MNAs including Sheikh Rashid Ahmed, a PML-N MNA at the time and a bitter critic of the PPP and Benazir Bhutto.
Recently, the incumbent speaker of the National Assembly, Asad Qaiser, faced this twin pressure when he issued the production order for Shahbaz Sharif, the leader of the opposition arrested by the National Accountability Bureau (NAB) that is investigating some charges against him.
Shahbaz Sharif is not only an MNA from the arch rival PML-N, he is also the leader of the combined opposition in the National Assembly and has faced direct verbal assaults from Prime Minister Imran Khan. Despite tremendous pressure from some of his colleagues in the PTI, the speaker stood his ground and repeatedly issued production orders for Shahbaz Sharif for each session.
Former railways minister, Saad Rafique, was another beneficiary of the production orders issued by speaker Asad Qaiser. Unfortunately, Saad Rafique’s brother Salman Rafique, who is also in NAB custody, was not as lucky as his elder brother because he is a member of the Punjab Assembly which happened to be the only legislature of Pakistan where the rules did not provide for the provision of production orders by the speaker at that time.
Subsequently, the assembly amended its rules on Jan 15, 2019, and empowered its speaker to issue production orders for the arrested members. An unexpected beneficiary of this amendment in the rules turned out to be former senior Punjab minister Aleem Khan of the PTI who was also arrested by NAB and brought to the assembly for its sittings thanks to this amendment.
The Senate, the National Assembly and all the four provincial assemblies now have almost identical rules which empower their presiding officers to, either of their own accord or at the request of the arrested member or his party, summon the arrested member for a sitting of the legislature or of one of its committees.
The rules also empower the chairpersons of the standing committees to summon the members of the committees for their meetings. This, at least in theory, means that Shahbaz Sharif, as chairman of the Public Accounts Committee, can summon a detained PAC member for a meeting without asking the speaker to do so.
The court has released Shahbaz Sharif on bail in the meantime otherwise it would have been interesting to see whether he, as chairman PAC, could summon himself to attend a meeting of the accounts committee. Had it been so, it would probably have created history, just as his arrest as leader of the opposition and subsequent production order was a unique instance in Pakistan’s parliamentary history.
Although the arrest of elected representatives is a sad occurrence, one can celebrate the fact that despite the limitations of democracy in Pakistan, parliamentary rules and traditions of detained legislators’ production in parliamentary sittings are taking root and proving strong enough to withstand partisan pressures. As long as these rules are proving effective, one may arguably choose to ignore the demand that issuing production orders should be made obligatory on presiding officers rather than leaving it to their discretion.
The writer is president of the Pakistan Institute of Legislative Development And Transparency.
Published in Dawn, March 4th, 2019