‘Parliament’s privilege breached’: Speaker writes to CJP to convey lawmakers’ ire

ISLAMABAD: National Assembly Speaker Raja Pervez Ashraf Wednesday wrote a letter to Chief Justice of Pakistan (CJP) Umar Ata Bandial to convey concerns and sentiments of parliamentarians on some recent decisions of the Supreme Court and comments made by some judges.

“As Speaker of the National Assembly of Pakistan (National Assembly) and custodian of the House, I am writing to you to convey profound concern and unease of the elected representatives of the people of Pakistan regarding some recent decisions of the Supreme Court and comments made by some Honourable Judges, as reported in media,” the Speaker said at start of his letter titled ‘Encroachment upon the National Assembly’s Power To Approve Expenditure From Federal Consolidated Fund’.

The speaker said that the Supreme Court must, as far as possible, avoid getting involved in political thicket. It is best to leave resolution of political matters by parliament and the political parties.

”I, on behalf of the National Assembly of Pakistan, urge the Hon’ble Chief Justice and Judges of the Supreme Court, individually and collectively, to exercise restraint and respect the legislative domain of the parliament. We must work together to uphold the Constitution, protect the democratic values and work within our respective constitutional domains to ensure that confrontation between the organs of the State is avoided and the constitutional order is maintained,” the letter read.

The speaker pointed out that constitutional courts have the power to interpret the Constitution; however, such power does not include rewriting the Constitution or undermining the sovereignty of parliament. It is not the prerogative of the three-member bench of the Supreme Court to give directions for release of funds while ignoring the constitutional provisions, which the judges have taken oath to preserve, protect and defend.

“The National Assembly firmly believes that the power of the purse belongs solely to the National Assembly, comprising of the directly elected representatives of the people of Pakistan.

“The National Assembly shall defend this right and prerogative granted to it by the people and the Constitution. Any attempt to circumvent and sidestep the constitutional mechanism and due process shall be repelled by the National Assembly,” he said.

“The National Assembly strongly feels that these recent decisions amount to encroachment upon two core constitutional functions of the National Assembly i.e. (i) law making and (ii) power of the purse.”

For present purposes, he drew attention of the chief justice to Article 73 of the Constitution which vests powers related to money bill exclusively in the National Assembly. Articles 79 to 85 confer power and authority to approve expenditure from the Federal Consolidated Fund on the elected members of the National Assembly.

“Keeping in view these unambiguous constitutional provisions and division of powers and functions, I write to convey the profound concern and deep unease of the National Assembly with the orders passed by a 3-member bench of the Supreme Court, on 14-04-2023 and 19-04-2023, directing the State Bank of Pakistan and Finance Division, Government of Pakistan to allocate/ release Rs21 billion to the Election Commission of Pakistan. These orders have been passed notwithstanding that such release has expressly been forbidden by the National Assembly. While doing so, with great regret, the 3-member bench of the Supreme Court has ignored the resolution of the National Assembly dated 06-04-2023 resolving that the decision, in SMC No. 1/2023 and CPs No.1 and 2 of 2023 passed by a majority of 4-3, had dismissed the SMC and CPs. Thus, CP No. 05/2023 was not maintainable and as such, the decision dated 04-04-2023 has no force of law or has any binding effect.”

The letter said that on April 10, the National Assembly refused to pass the Charged Sums for General Elections (provincial assemblies of the Punjab and the Khyber Pakhtunkhwa) Bill 2023, whereunder a charge was sought to be created on the Federal Consolidated Fund for Rs21 billion, under Article 81(e) of the Constitution.

“On April 17, 2023, the National Assembly Standing Committee on Finance and Revenue directed the Finance Division to seek prior approval of the National Assembly in order to avoid constitutional violation for this unauthorised expenditure, because the National Assembly would have rejected ex-post facto approval for Rs21 billion demand for supplementary grant as other expenditure, keeping in view the foregoing position of the National Assembly,” it added.

The speaker said that it is sadly noted that the three-member bench orders have completely disregarded the constitutional process and the prerogative of the National Assembly with respect to financial matters.

“The 3-member Bench of the Supreme Court appears to be in a hurry and has given unusual directions to the Federal Government to authorise the expenditure of Rs21 billion from the Federal Consolidated Fund and then present it as fait accompli to the National Assembly,” he said.

The letter said the ex-post facto rejection of this amount by the National Assembly, 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 National Assembly notes with great concern that despite knowing the consequences and effects of such prior authorisation, which will be rejected by the National Assembly when presented for ex-post facto approval, the three-member SC bench threatened the federal government of ‘serious consequences’ for not authorising the expenditure of Rs21 billion.

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

Finally, as the National Assembly Speaker and custodian of the House, he invited attention to the following:

(a) The National Assembly believes that since SMC No. 1/2023 and CPs No. 1 and 2 of 2023 were dismissed by a majority of 4-3, therefore, the so-called ‘3-2’ decision has no legal force. As such, the orders dated 04-04-2023, 14-042023 and 19-04-2023 passed in CP No. 05/2023 and various CMAs have no legal force. Therefore, they neither enunciate a principle of law nor are to be implemented in terms of Articles 189 and 190 of the Constitution;

(b) Notwithstanding the foregoing, the rejection of Rs21 billion, either as a charged sum or as other expenditure through supplementary grant, by the National Assembly does not constitute loss of confidence of the National Assembly in the federal government or the prime minister. The rejection of Rs21 billion is based on the understanding of the National Assembly that the orders of the 3-member Bench dated 04-04-2023, 14-04-2023 and 19-04- 2023 are in violation of a 4-3 majority decision in SMC No 1/2023 and CPs No 1 and 2 of 2023.

“We have always believed in the principle of separation of powers, and parliament has always respected the independence of the judiciary. However, it is important to remember that each branch has its own domain and should not encroach upon the powers of the other. I am also to convey to you the sense of the House that an unnecessary confrontation, deeply damaging to the national interest, is being created by the repeated orders to release funds to the Election Commission of Pakistan, disregarding the express will of the National Assembly. The National Assembly will approve the expenditure for the general elections to all the assemblies (National and four provincial) in the annual budget (statement) for the next financial year, presented by the federal government, in due course.

“It has been 50 years since the adoption of the Constitution and during this time, we have witnessed numerous encroachments upon the powers of parliament by the dictators. The higher judiciary has, and sadly so, mostly ratified the undemocratic interventions. However, the people of Pakistan have always fought back, struggled for the restoration of democracy, with their blood and sweat and have always prevailed. They also strived for the establishment of an independent judiciary. However, unfortunately, the judiciary mostly trained its gun towards the same politicians who defended it during difficult times. Forgetting that it is the politicians and parliamentarians of the All-India Muslim League who struggled and won independence. The Objectives Resolution unambiguously declares the supremacy of parliament, in accordance with the vision of Quaid-i-Azam. By virtue of Article 2A, the Objectives Resolution is now a substantive part of the Constitution, which, inter alia, states ‘wherein the State shall exercise its power and authority through the chosen representatives of the people’. Therefore, neither the Executive nor the judiciary can encroach upon the powers of the National Assembly. Directing the Executive to authorise expenditure from the Federal Consolidated Fund and seek ex-post facto approval from the National Assembly, in the circumstances where the National Assembly has repeatedly rejected this demand, militates against the trichotomy principle embedded in our Constitution.”

Addressing the National Assembly session, Pakistan Peoples Party (PPP) Chairman and Foreign Minister Bilawal Bhutto Zardari, meanwhile, termed the latest decision of the Supreme Court as shocking and horrifying and suggested the chair to refer the same to the privilege committee of the House.

Bilawal was of the view that the Supreme Court had breached privilege of the House by ordering that parliament’s decisions should not be accepted. “How the apex judiciary can order the prime minister and us to violate the Constitution and not to accept parliament’s orders,” he said. He said the latest Supreme Court decision was shocking and horrifying. “They are saying that you should ignore the decision of parliament and accept minority verdict of Supreme Court,” he said.

Bilawal asked how the apex court could give directions to the government and prime minister to violate the Constitution. “How the Supreme Court could give an opinion that the prime minister had lost confidence of the House. If we are giving our opinion in his favour, it means that we have confidence in him,” he said. The PPP leader said as the House passed a resolution on elections of National and provincial assemblies on the same day, rejected money and supported 4-3 decision, it means the members were with the prime minister.

“We have expressed no confidence in 3-2 decision,” he said.

He observed that all what was going on was against the national interests. “The people are observing that there is something wrong.” He said that his party was in favour of dialogue which was possible only when the judiciary and parliament worked in their respective domains. “Dialogue cannot be possible under pressure or when the Supreme Court acts as Panchayat,” he said.

He said that judges of the Supreme Court would not like that they are remembered as the Tiger Force of PTI. It would be better for them that they should be remembered in history as non-controversial judges. There is also an opportunity that the chief justice leaves behind a strong judiciary.

“It is also better for them to go for dialogue among themselves,” he added. “The Peoples Party never thought of violating the Constitution but the apex court is asking us to ignore the decision of parliament which is not acceptable to us,” Bilawal said. He said it was also against the basic principles of democracy that an institution stops parliament, particularly the National Assembly, to decide about the money bill and how the national exchequer is to be spent.

“We are not bound to accept the decision of any other institution,” he said, adding that they were not going to make headlines but history would remember them that they continued to stand with parliament.

“The PPP is standing with parliament and would continue to stand by mother of all institutions in future also,” he said, questioning as to how the Supreme Court could order that money bill should not be taken to the National Assembly. He maintained that they were bound to accept the decision of parliament only. He said that the apex judiciary insults and undermines this House and wants them to do unconstitutional task. “It will be tantamount to breach of privilege of parliament that it should order us to violate the Constitution and not to obey parliament’s orders,” he said.

He said that there could be bad intention if emphasis was being given to conduct elections only in one province. Then there could be threats to the Federation, he warned.

Bilawal observed that if holding elections to dissolved assembly in 90 days was a constitutional requirement, then by-elections on seats vacated by PTI members is also a constitutional matter. He said it could be considered as routine if orders only pertains to elections within 90 days but there is something fishy if order is given in the context of Article 63-A.

“We have tolerated enough. How many prime ministers they will hang and how many prime ministers they will remove,” Bilawal said. He said how they could ask us to violate Constitution and disobey the parliament, adding the offensive order was an insult and breach of privilege of parliament. Bilawal said just writing a letter was not enough, rather the issue of offensive order should be raised at privilege committee of the House.

In his address, Finance Minister Ishaq Dar came down hard on Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan and said the two assemblies were dissolved to spread anarchy in the country. Dar categorically said that holding of elections simultaneously in all the provinces and Centre was a constitutional obligation, adding that the country could not afford elections in parts.

The minister said it was not for the first time that election was not being held within 90 days. In the past, the election was delayed due to martyrdom of Benazir Bhutto in 2007 and due to natural calamity in 1988, he added. He said the National Assembly has already rejected Rs21 billion elections fund bill twice besides passing a resolution to reject the bill seeking election expenditure for Election Commission of Pakistan (ECP).

He sought the guidance of the members of the House as the government could not release funds without approval of the National Assembly. The minister said an amount of Rs35 billion was being spent on the population census despite limited resources. Despite spending a hefty amount on the population census in 2017, two provinces expressed severe reservation and the then government had to convene a meeting of Council of Common Interests (CCI).

He said the general elections of 2018 were held on the basis of old census due to reservations of two provinces after bringing necessary legislation. He said the government had allocated Rs5 billion to the ECP in fiscal year 2022-23. The ECP had raised a demand of Rs54 billion in the next fiscal year 2023-24 for holding general elections, he added.

However, he said the Finance Division decided to allocate Rs47.4 billion to the ECP for elections during the next fiscal year. “Today, we would not have faced such a situation if Article 63 A was not rewritten,” he said. He said new interpretation of Article 63-A caused anomalies and it was an attempt to create anarchy in the country. The ECP sought Rs 21 billion for holding elections in Punjab and Khyber-Pakhtunkwa, he added.

He said Rs14.4 billion additional amount would be incurred on holding separate elections in the provinces. The Finance Ministry could allocate funds for elections in the budget and without budget, allocation could only be done through supplementary grants. The Finance Ministry mostly discouraged practice of supplementary grants in order to ensure financial discipline, he added. He went on to say that the Finance Ministry always followed the Constitution and law for payment of funds. The State Bank of Pakistan (SPB) could only allocate fund but it could not released it, he added. The Finance Division could not release funds without approval of parliament, he added.

Dar said the House has passed a resolution with regard to payment of funds to the ECP for elections, adding that the Finance Ministry was bound not to pay the amount. The NA Standing Committee on Finance and Revenue has also directed the Finance Ministry to place the issue before the National Assembly for releasing funds in this regard. However, he said the National Assembly rejected the supplementary grant resolution worth Rs21 billion moved under 64-A.

He said that in the Punjab Assembly case, Article 63-A of the Constitution was re-written and the “world is surprised over the new interpretation” of the article. Dar then slammed the “elements” responsible for derailing Pakistan’s economy and said the country was standing at a critical juncture. “What will happen if the elections happen in the country in October,” he questioned.

The minister said the government was being asked to do an “illegal” thing and he would never advise the cabinet to do so. He added that the law dictates that elections should be held simultaneously. “We cannot go against the Constitution just on court orders,” he said, asking the parliamentarians to suggest what the government should do till tomorrow.

In his speech, Law Minister Azam Nazir Tarar said the lower house of Parliament has already passed resolutions for not providing funds to the ECP for polls.

“When the matter was taken up before the cabinet, the House had already issued its decision,” he said, stressing parliament’s prerogative on the issuance of funds. The minister added that parliament had directed the federal government not to follow up on the Supreme Court’s “minority” decision on the elections.

“Releasing funds from the Federal Consolidated Fund is the parliament’s prerogative,” the law minister added. The minister said a person dissolved the assemblies to satisfy his “ego”. He added that given the current circumstances, parliament has the power to either ratify or review its earlier decisions.

MNA Chauhdry Birjees Tahir said they did not want to summon judges to the privilege committee but those who do not accept resolutions and decisions of parliament could be called at privilege committee. “There is a precedent that ex-president was also summoned by the privilege committee of the House,” he said.

Mohsin Dawar suggested that instead of summoning the chief justice and his colleagues at privilege committee, it would be appropriate to declare the House as whole committee where they should appear. Dawar said that high court judges from Balochistan and Khyber Pakhtunkhwa were ignored during process of elevation to the Supreme Court. “I claim that they will give decisions as per the Constitution and law once they are elevated,” he said.

Shahida Akhtar Ali of JUIF said that it was the discretion of the National Assembly to approve budget for the elections, adding that it was also high time for parliament to assert its supremacy.

“We are with the House whatever decision is taken by it,” she said, adding that the Constitution and parliament’s supremacy could not be sacrificed to fulfil the desires of an individual and for the sake of his ego.

PPP’s Agha Rafiullah called for conducting forensic audit of audio leaks. He accused the judiciary of giving biased verdicts on different occasions at their will. Without naming Imran Khan, he said a Fitna played havoc with the country’s economy and social and moral values and also divided the nation.