Non-production of Saad Rafique: Speaker uses discretionary power against detainee

ISLAMABAD: National Assembly Speaker Asad Qaisar is using his discretionary power regarding issuance of production order of senior Pakistan Muslim League-Nawaz (PML-N) leader Khawaja Saad Rafique against the detainee contrary to the time-tested parliamentary traditions.

As the speaker continues to exercise his authority to the disadvantage of the incarcerated member of the National Assembly (MNA), the House keeps resounding daily with walkouts by the opposition MPs amid furious outbursts.

Under the rules, it is not mandatory for the speaker to order production of an imprisoned member.

Rule 108 of the Rules of Procedure and Conduct of Business in the National Assembly says the speaker or chairman of a committee may summon a member in custody on the charge of a non-bailable offence to attend a sitting or sittings of the assembly or meeting of a committee of which he is a member if he considers his presence necessary.

The rule further says that on a production order, signed by the secretary or by any other officer authorised in this behalf, addressed to the provincial government where the member is held in custody, or to the authority concerned, the provincial government or such authority shall cause the member in custody to be produced before the Sergeant-at-Arms, who shall, after the conclusion of the sitting or the meeting, deliver the member into the provincial government or other authority concerned.

Leading constitutional expert and former Senate Chairman Wasim Sajjad explained to The News that the word “may” used in the rule gives the discretionary power to the speaker which he may use either way--in favour or against an imprisoned legislator.

He said that in their judgements courts at times have treated the word “may” as “shall” and “shall” as “may” depending upon the principle of construction of the relevant statutory provision.

The expert said that after the specific rule relating to the National Assembly was amended incorporating this facility, the Senate had followed suit so that the production of confined lawmakers can be ordered for their participation in the House proceedings.

Wasim Sajjad said that there is a clear dichotomy in the speaker’s approach because on the one hand he has ordered production of leader of the opposition Shahbaz Sharif more than once, and, on the other, he has not done so in the case of Saad Rafique. “The speaker is required to give reasoning for not issuing the production order for Saad Rafique.”

He said that no such clause giving the speakers authority to ask for production of a jailed lawmaker exists in the rules governing the proceedings of the four provincial assemblies. Therefore, he said, their speakers have no powers to order production of any detained legislator. This happened in the case of Saad Rafique’s brother Salman Rafique, member of the Punjab Assembly, when the provincial speaker refused to issue his production order.

The Khawaja brothers were taken into custody by the National Accountability Bureau (NAB) three days ago from the premises of the Lahore High Court after it refused to extend their bail.

A plain reading of Rule 108 shows that while the speaker has discretion to issuance production order for all the held MNAs, chairmen of the standing committees of the National Assembly have the same privilege to seek the presence of their apprehended members to attend their meetings.

Since the opposition parties are going to get a number of their nominees elected as the chairmen of the House committees as per the understanding reached with the government side, they will have the discretion to order production of any of their members, who would be taken into custody by any agency for any reason.

On Thursday, Speaker Asad Qaisar announced amid opposition’s protest, calling for the presence of Saad Rafique, that he would consult with his legal team on the matter and take a decision.

However, on Friday he did not utter a word when a number of opposition lawmakers, including the ruling coalition’s ally, Sardar Akhtar Mengal, Shahbaz Sharif, and former Prime Minister Raja Pervez Ashraf demanded issuance of the production order for Saad Rafique.

Mengal said that he was calling for the presence of the PML-N stalwart although nearly three dozens of his party workers disappeared during the tenure of the previous government. He also joined the walkout to express his solidarity with the protesters.