Poll funds: In letter to CJP, NA speaker urges higher judiciary to respect parliament’s legislative domain

Published April 26, 2023
National Assembly Speaker Raja Pervaiz Ashraf presides over session of the House on Wednesday. — DawnNewsTV
National Assembly Speaker Raja Pervaiz Ashraf presides over session of the House on Wednesday. — DawnNewsTV

National Assembly Speaker Raja Pervaiz Ashraf wrote a letter to Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday night in which he urged the higher judiciary to “exercise restraint” and respect parliament’s legislative domain.

During today’s NA session, the speaker had said that he would write a letter to the CJP and other top court judges to convey the “sentiments and thoughts” of members of the House about the court’s orders on elections in Punjab and Khyber Pakhtunkhwa as well as the release of funds in this regard.

Ashraf had announced the decision after taking “sense of the House” — expressed by members by thumping of desks — and on the call of several lawmakers, particularly the PML-N’s Muhammad Barjees Tahir, who asserted parliament’s supremacy.

The NA speaker’s decision also followed the federal cabinet’s decision to again refer to parliament the finance ministry’s summary for the release of funds to the Election Commission of Pakistan (ECP) for polls in Punjab and KP.

Earlier today, a statement issued by the Prime Minister’s Office said the federal cabinet had approved that the matter for the release of Rs21 billion, initially ordered by the Supreme Court in an April 4 order, be taken to parliament for a second time.

The decision comes a day before the SC is set to resume hearing a case pertaining to elections in the country, the latest development in a weeks-long impasse between the judiciary and executive regarding the matter.

In the five-page letter, a copy of which is available with Dawn.com, Ashraf said: “The SC must, as far as possible, avoid getting involved in [the] political thicket. It is best to leave resolution of political matters by the parliament and the political parties.

“I, on behalf of the NA of Pakistan, urge the honourable chief justice and judges of the SC to exercise restraint, and respect the legislative domain of parliament.

“We must work together to uphold the Constitution, protect democratic values and work within our respective constitutional domains to ensure that confrontation between the organs of the state is avoided and constitutional order is maintained,” he said.

At the outset of the letter, the speaker said he was writing to convey the “profound concern and unease” of the country’s elected representatives regarding recent decisions by the top court as well as some comments made by judges.

He said that the House felt that the “recent decisions” amounted to encroaching on its two core constitutional functions i.e. law making and power of the purse.

Citing Article 73 of the Constitution, the NA speaker said he was writing to convey the assembly’s “profound concern and deep unease” regarding the orders passed by the three-judge SC bench, in which it directed the central bank, the Finance Division and the government to allocate/release Rs21bn to the ECP.

Article 73 of the Constitution deals with the “procedure with respect to money bills”, which are only required to be passed by the NA.

Ashraf went on to say that by doing so, the bench had ignored the fact that the NA had passed a resolution against the SC’s decision to quash the ECP’s decision to delay polls in Punjab till October and had rejected the Charged Sums for General Elections (Provincial Assemblies of the Punjab and KP) Bill, while the NA standing committee had directed the Finance Division to seek the assembly’s prior approval.

“It is sadly noted that the three-member bench’s orders have completely disregarded the constitutional process and the prerogative of the NA with respect to financial matters,” he said.

He added that the bench “appeared to be in a hurry” and had, therefore, given “unusual directions” to the government to authorise the expenditure of Rs21bn from the Federal Consolidated Fund (FCF) “and then present it as fait accompli to the NA”.

“The ex-post facto rejection of this amount by the NA, which will most certainly happen, would make this authorisation, albeit on court orders, unconstitutional and will surely lead to untoward consequences for the federal government.

“The NA notes with great concern that despite knowing the consequences and effects of such prior authorisation, which will be rejected by the NA when presented for ex-post facto approval, the three-judge bench of the SC has threatened the federal government of ‘serious consequences’ for not authorising the expenditure of Rs21bn.

“This, the NA notes with great dismay, is an attempt to undermine the NA and amounts to breakdown of the constitutional order. The NA is quite clear that such direction is an impermissible intrusion into the exclusive jurisdiction and authority of the NA, a breach of its privilege,” Ashraf said.

The NA speaker further said that the power of the purse belonged solely to the lower house of parliament, adding that the assembly would defend this right. “Any attempt to circumvent and sidestep the constitutional mechanism and due process shall be repelled by the NA,” he said.

He said that he was also conveying the sense of the House that an “unnecessary confrontation, deeply damaging to national interest, is being created by the repeated orders to release funds to the ECP, disregarding the express will of the NA”.

Ashraf said the assembly would approve the expenditure for general elections to all assemblies in the annual budget for the next fiscal year. He said that directing the executive to authorise expenditure from the FCF and seek ex-post facto approval when the NA had repeatedly rejected the demand “militates against the trichotomy principle embedded in our Constitution”.

‘Funds cannot be released without due process’

Speaking during today’s NA session, Finance Minister Dar stressed that funds could not be released without following due process as per the law and the Constitution.

The minister stated this while explaining the procedure adopted by parliament and the government for the release of funds for elections in Punjab and KP as well as the subsequent rejection of the proposal.

He recalled that a resolution was passed in the House on April 6, which bound the finance ministry not to make additional payments for elections.

Then, referring to the apex court’s directives, Dar said, “If there is a court order to provide funds, make no mistake, nobody can give the money unless the process and procedure is followed as per the Constitution and the law.”

He said no summary was moved by the ECP or any other authority for the release of the grant of supplementary funds, as required by the Constitution and the law.

Eventually, he added, the matter was referred to the federal cabinet, which gave approval for it to be taken to parliament.

“This House has the sovereign will to decide whatever they want to decide — and I believe they have a reason to decide what they decided,” he said, adding that there was a “rationale” behind the rejection of the government’s money bill.

The rationale, he said, was the House maintaining that it didn’t accept the decision of the three-member SC bench.

But keeping these judicial, legal and constitutional matters aside, he said, “we tried our best to find an instrument under which we can proceed [to release the amount] as charged expenditure.

“So […] the bill was presented in the House and the House rejected it. And obviously the House is sovereign. Nobody can do anything.”

Following the rejection of the bill, the SC directed the SBP to release the funds, Dar noted.

“But the SBP cannot disburse money. Its trustee and operator is the Finance Division,” he contended, adding that the central bank could only allocate the funds which it had already done.

On the other hand, he continued, the finance ministry needed parliament’s approval for issuing supplementary grants whereas the April 6 resolution barred it from releasing the funds.

Then, on the recommendations of the NA Standing Committee on Finance and Revenue, a motion was moved for the release of the funds, he said. “That, too, was voted down by this House.”

Dar further termed the release of funds “an extraordinary transaction in an extraordinary situation”.

He added, “This is a situation in which no payment can be made, whether the prime minister, federal government or the Finance Divison wishes for it. This House has categorically stopped the payment.”

He conluded his address by saying that the NA should decide the way forward. “It is my request to this House to guide [us] by tomorrow,” he said, adding that what the federal cabinet was being asked to do was “unconstitutional”.

“We simply cannot disburse this money. So it is my request that this House, using its wisdom and prudence, guide the federal government and the prime minister as to what should be our next course of action,” the minister said.

‘Contempt of parliament’

During his address, PML-N’s Tahir — who is a member of the NA Standing Committee on Finance and Revenue — questioned the need for coming to the lower house of parliament if the powers to decide the matter lay with the judges.

“We have powers, civil powers. Would it be appropriate to exercise these civil powers and summons judges here?”

The MNA was then quick to add that he did not want to summon judges but wanted to “give a chance to the institutions of this country to operate within their respective jurisdictions”.

He recalled that a resolution was passed to stop the disbursement of poll funds. “Tell me if someone doesn’t agree [with this resolution], doesn’t this amount to the contempt of this House?”

He called for “contempt of parliament” action against those disagreeing with the resolution and asked the NA speaker to write a letter to the CJP, urging the top judge to stop “humiliating” the NA.

The MNA pointed out that under Article 73 of the Constitution, only parliament had the authority to allow the release of funds and citing an SC judgment on the matter, he said it was “contempt of parliament as well as the judiciary”.

Again urging the speaker to write a letter to the CJP, he said, “Ask them to stay in their domain. We don’t want to give away our legislative rights […] to anyone.”

Bilawal says breach of privilege has taken place

Speaking on the floor of the NA after the speaker announced he would be writing to the CJP, Foreign Minister Bilawal Bhutto-Zardari said that the government was not the first to break the constitutional requirement of holding polls within a certain timeframe.

Referring to the en masse resignations of PTI lawmakers, he said that the same requirement was applicable to holding by-elections on the vacated seats.

He said that during the PTI’s rule, local government polls were not held in Punjab despite court orders. Bilawal said said that the SC’s “minority” order, which it wanted to impose on the nation, was also not in accordance with the 90-day limit for conducting polls.

He further said that the orders issued on April 30 and May 14 also went beyond the 90-day limit, adding that attempts were being made to take steps that were against the Constitution.

“Representing the PPP, I want to clarify on the floor (of the assembly) that neither in the 90-day context or in any other context do we want to go against the Constitution. But you have to read the whole Constitution. You have to understand the context. It is the SC’s job to interpret the Constitution, not to being about changes to the Constitution.”

He quipped that if any top court judge had any misunderstanding regarding the Constitution, then the PPP could send a committee to clarify it.

“Right now in the country, due to the stubbornness of a few elements, again and again parliament — the mother of all institutions, the mother of the Constitution — is being disrespected.”

He said that during today’s cabinet meeting, the law minister and the attorney general explained the “latest order” issued by the top court, adding that he was “shocked and horrified”.

“How can it be that an institution which is supposed to protect all of our rights […] how can they indicate that parliament should be forgotten, its decision should be forgotten, its voting on the money bill be ignored and the order of the minority bench should be accepted?”

The foreign minister said that the PPP could not even conceive violating the Constitution. “It is against the basic principles of our democracy and of our Constitution. Not only of our democracy and Constitution, but of any democracy anywhere in the world.”

He said that parliament was the “custodian of the national purse”.

“We will decide how the money of the people of Pakistan is spent and where it is spent and how it is spent. The executive does not have this authority […] this is only the responsibility of this institution.”

He said that today if parliament approved the release of funds, then the premier would honour that decision. But if parliament refused, then “we respect the Constitution and this institution”, he said, adding that the executive was bound to follow the orders of the NA.

Bilawal, however, went on to say that a mere letter would not suffice. “If the higher judiciary is committing contempt of this House, if it is undermining this House through its decisions, if it is trying to make us take an unconstitutional step through its decisions […] in my opinion, in the PPP’s opinion, contempt of parliament has happened.

“A breach of privilege has taken place. How is it that one institution directs us to violate the Constitution, to not listen to what parliament has said?” he asked, adding that the House’s privilege was being breached.

He said that there was a procedure in place for when this had happened. “I think that this offensive order by the higher judiciary should be taken up in the privilege committee.

“The very concept of democracy is that the prime minister is answerable to the elected representatives of the people of Pakistan. When the premier is made fun of, it is criticism of all of us […] We tolerated it for a while but until when?” he asked.

Elections impasse

On April 4, a three-member bench, including CJP Bandial, directed the ECP to hold elections in Punjab on May 14 and instructed the government to issue funds for the purpose by April 10.

But the government has yet to release the funds and maintains that elections to the National Assembly and all provincial assemblies be held on the same day.

On April 10 — the initial deadline set by the top court for the release of funds — Finance Minister Ishaq Dar tabled a money bill in the NA, seeking funds for conducting polls in Punjab and KP. The bill, titled Charged Sums for General Election (Provincial Assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, was subsequently rejected by the NA.

Prior to that, the government-dominated standing committees of both Houses of parliament also rejected the bill in their separate meetings.

The matter was then again taken up by the apex court, which directed the State Bank of Pakistan (SBP) to provide funds to the ECP for Punjab and KP polls by April 17.

The court directed the SBP to release funds worth Rs21bn for elections from from Account No I — a principal component of the Federal Cons­olidated Fund (FCF) worth Rs1.39 trillion — and send an “appropriate communication” to this effect to the finance ministry by April 17.

Following the top court’s orders, the central bank allocated the funds and sought the finance ministry’s nod to release the amount to the ECP. But, the government’s approval was required to release the amount from the FCF while the government had to get the National Assembly’s approval for its release.

Subsequently, on April 17, the coalition government managed through the NA yet another rejection of its own demand for the provision of Rs21bn as a supplementary grant to the ECP for holding polls in the two provinces — nullifying the SC’s third directive for the release of funds for the purpose.

A day later the SC, while hearing a defence ministry plea for same-day polls, warned the government of “serious consequences” if it failed to release the funds required for conducting polls in Punjab and KP. It had also said that since the office of the prime minister had primacy, the premier “must enjoy the confidence of the majority of the NA at all times.”

“It follows from the foregoing (and this is an important constitutional convention) that the government of the day must be able to secure the passage of all financial measures that it submits before the NA. This would be certainly true for a financial measure of constitutional importance,” the order said, adding that when viewed from this perspective, the NA’s rejection of the demand to release poll funds held “serious constitutional implications”.

On Wednesday, the matter was taken up in the NA again after the federal cabinet’s approval to refer it to parliament.

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