Article 69 of the 1973 Constitution of Pakistan

Article 69(1) says,

“The validity of any proceedings in [Majlis-e-Shoora or Parliament] shall not be called in question on the ground of any irregularity of procedure.

Article 69(2) says,

“No officer or Member of [Majlis-e-Shoora (Parliament)] in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in [Majlis-e-Shoora (Parliament)], shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.”

 

Current Situation

The recent decision made by the parliamentary speaker of Pakistan to dismiss the no-confidence vote in parliament against Prime Minister Imran Khan on the basis of Article 5, and the subsequent dissolution of the National Assembly, has triggered a constitutional crisis as the opposition has appealed against this move at the Supreme Court.

Also, the Chief Justice of Pakistan Umar Ata Bandial, himself, took notice of the dismissal of the no-confidence motion because a motion of no confirmation can not be dismissed according to the law, and further it is not for the speaker of the assembly to dismiss the motion.

The question here which comes to the discussion in regard to Article 69 is whether the Supreme Court has the power to challenge the powers and decisions of the parliament?

 

Explanation

Article 69 was inserted in the 1973 Constitution to ensure the concept of the sovereignty of Parliament. This does not mean that the Chairman or the Speaker of the Senate or the National Assembly have gained unbridled powers and their decisions cannot be questioned by other members.

Every law does have its exception. The exception which comes in here is that the Parliament does not have unlimited and unchecked powers, there is a body .i.e. Judiciary which maintains a balance somewhat through the process of Judicial review. Therefore, in this case, the Supreme Court can review the decision on the basis of a generally accepted principle, “that an authority passing an order can review the same.” 

 

Point of View of A Supreme Court Lawyer – Salman Akram Raja

“There is a provision in the constitution, Article 69, that says courts are not to look into the matters on the floor of the House, but there are exceptions.

And we have precedence in the past where the ruling by the speaker has been set aside by the Supreme Court. Article 5 of the constitution says that you will obey the constitution and be loyal to the constitution. This has nothing to do with the resolution in the House. For the speaker to say he has decided this resolution is based on disloyalty is a nonsensical position.”

Previous Intervention by the Courts of Pakistan

The courts of Pakistan have intervened in the matters of the Parliament several times whenever there arises an issue of constitutional importance. Following are some situations:

Saifullah Khan v Federation of Pakistan

In this case, the Supreme Court held that the dismissal of Mohammad Khan Junejo’s government by General Zia in May 1988 was unconstitutional.  However, it refused to restore the National Assembly.

Ahmed Tariq Rahim v. Federation of Pakistan

On 6 August 1990, President Ghulam Ishaq Khan, under Article 58(2)(b) of the constitution had dissolved the National Assembly and the government of Benazir Bhutto.

The said dissolution order was challenged. The Supreme Court – by a majority – upheld the dissolution of the National Assembly.

Molvi Tamizuddin Khan v Federation of Pakistan

The first ever constitutional case in the history of Pakistan was the case of Molvi Tamizuddin Khan.

In 1954, Governor-General Ghulam Muhammad dissolved the Constituent Assembly of Pakistan. Along with the PM Khawaja Nazimuddin who enjoyed the confidence of the constituent assembly.

So, then Maulvi Tamizuddin Khan, the President of the Constituent Assembly and a representative from East Bengal, challenged the Governor General’s actions in the Sindh High Court, where the dissolution was ruled as ultra vires. 

The case was then appealed in the Federal Court of Pakistan, who ruled in favor of the Governor-General’s dismissal of the 1st Constituent Assembly of Pakistan.

Except one dissenting opinion, the majority of the court supported the dismissal on grounds of the doctrine of necessity. The verdict was considered a blow to democratic norms, which had its ramifications and led to the dismissal being described as a constitutional coup.

This judgment of the Supreme Court is always strongly criticized by all democratic parties of Pakistan and is referred to as a root cause of unstable democracy in Pakistan until this very day.

 

Conclusion

Going through these precedents, it is explicitly seen that the courts may interfere in the matters of parliament where the need arises. Currently, it might be a “need” for the Supreme Court of Pakistan to interfere because of the step taken by the Deputy-Speaker of the National Assembly.

However, while the Supreme Court may well find that it can interfere, the question remains: how far will it go?

Given the precedents, the Supreme Court might find the dismissal of the motion of no confidence as illegal. However, it seems almost impossible that the court will resume the status of National Assembly and consider the dissolution of the Assembly illegal. The then best solution will be to appoint a government in charge by conducting fresh elections. Whereas, if the opposite happens, then it could very well set a new precedent in the constitutional history of Pakistan.