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.
DR. FEHMIDA MIRZA
Dated: 24th May, 2012