4th April 2022
By Rehan Piracha
Article 5 of the Constitution relating to loyalty to State and obedience to the Constitution and law cannot be invoked for taking any action as it is of a declaratory nature, according to senior jurists.
On April 3, Deputy Speaker Qasim Suri disallowed proceedings of a vote of no confidence against the prime minister declaring it to be contradictory to Article 5. “Circumstances show that there is a nexus between the no-confidence motion, foreign intervention and the activities of the state’s representatives deputed to Pakistan,” Suri said in a four-page controversial ruling.
No action entailed in Article 5: Tariq Mahmud
According to Article 5 (1), loyalty to the State is the basic duty of every citizen. The second sub-clause of Article 5 reads that ‘obedience to the Constitution and law is the obligation of every citizen wherever he may be and of every other person for the time being within Pakistan’.
Speaking to Voicepk.net, Justice (r) Tariq Mahmud, former president of Supreme Court Bar Association, termed the deputy speaker’s ruling a blatant joke about constitutional provisions relating to proceedings of the vote of no-confidence in Parliament.
“The Article 5(1) cited in the ruling is just an affirmation that all citizens would stay loyal to the State but does not mention any action to be taken in case they do not do so,” Mahmud pointed out. Secondly, the deputy speaker conveniently forgot to mention the second clause of Article 5 that obedience to the Constitution and law is the obligation of every citizen, he added.
The former SCBA president questioned as to from where did the deputy speaker got the powers to disallow the no-trust motion on the last day of voting as per constitutional provisions. “The deputy speaker could not prorogue the NA session until the vote of no-confidence had been voted upon,” he explained.
Speaker’s ruling can be challenged: Hamid Khan
Hamid Khan, former president of SCBA, was also of the opinion that Article 5 of the Constitution is of a declaratory nature. “The Constitution is silent on the question when a citizen is not loyal to the State, leaving it to the courts to determine it,” the senior jurist said.
Asked whether Article 69 of the Constitution provided protection to the deputy speaker’s ruling, Hamid Khan said the constitutional provision related to providing immunity to parliamentary proceedings as well as speeches of parliamentarians on the floor against any contempt of court. However, rulings of speakers have been successfully challenged in courts. He referred to the Supreme Court judgment in former prime minister Yousaf Raza Gillani’s disqualification case which had overturned the ruling of former speaker Fehmida Mirza.
Parties should have moved resolution instead of approaching courts: Ranjha
However, Dr Khalid Ranjha, former law minister, is of the view that a speaker’s ruling is protected under Article 69. “The Supreme Court in its judgment has clarified that proceedings of parliament cannot be challenged in courts,” Ranjha explained, adding that the apex court has ruled that it could intervene only in case of any mala fide in parliamentary procedures.
According to Ranjha, the deputy speaker’s ruling was an extra-constitutional measure but the opposition parties should have resolved the impasse inside parliament by bringing out another motion against the ruling instead of approaching the apex court.
In his view, the Supreme Court was unlikely to set aside the deputy speaker’s ruling and it would allow the fresh election to take place as announced in the notification of the dissolution of the National Assembly. “The Supreme Court had not restored the Junejo government while ruling its dismissal by President Zia-ul-Haq as illegal,” Ranjha said. The apex court allowed the holding of fresh election, he added.
All the above senior jurists were unanimous that if the deputy speaker ruling on dismissal of vote of no-confidence resolution was set aside by Supreme Court, all subsequent actions relating to dissolution of National Assembly, formation of the caretaker government, and fresh election would stand reverted.