ISLAMABAD: The speaker has the discretion to issue production order for an arrested member of the National Assembly to attend the House proceedings, a choice that he generally uses in favour of detained MPs as per time-tested parliamentary traditions. However, there is no precedent where the speaker has sought the legal opinion of the Federal Law and Justice Ministry on the request for issuance of production order.
“Under the rules, the speaker has the discretion, but it has to be exercised in a judicious and not arbitrary manner,” prominent legal expert Barrister Omar Sajjad explained to The News when contacted.
He said there is no need for example where the speaker referred the matter to the Law Ministry. He said the speaker has to take the decision one way or the other, and there is no mention of the ministry’s opinion in the rules.
Omar Sajjad said an MP, who is refused the production order, can approach the high court seeking direction to the speaker to allow him to participate in the proceedings. Currently, a standoff has hit the parliamentary scene after Speaker Asad Qaisar has not issued the production orders for Pakistan People’s Party (PPP) co-chairman and former President Asif Ali Zardari and Pakistan Muslim League-Nawaz (PML-N) leader Khawaja Saad Rafique, arrested by the National Accountability Bureau (NAB). This has provoked constant protest by the opposition parties, which said on the floor that the speaker is under pressure not to issue production orders.
In the recent past, the speaker had issued or delayed the issuance of production order for Saad Rafique. The opposition wants the presence of the detained MPs in the ongoing budget session.
Omar Sajjad recalled that back in the nineties when [Senator] Chaudhry Shujaat Hussain was arrested during the tenure of the second Benazir Bhutto government, Rule 72A was created allowing the Senate chairman to issue the production order of the detained MP.
However, the same Senate chief had later declined to issue the production order for Asif Zardari on the ground that he was authorised to do so only in the case of the elected senators and not member-elect. At the time, Zardari had been elected as senator but had not taken oath as the member.
Omar Sajjad said Zardari had challenged the chairman’s ruling in the Sindh High Court (SHC), which had held that the Senate chief’s decision was correct but had ordered that the senator-elect be called to take oath.
The words “may” and “if he [speaker] considers his (detained lawmaker’s] presence necessary”, occurring in Rule 108 of the Rules of Procedure & Conduct of Business in the National Assembly, make it clear that it is the discretion of the speaker to issue or refuse production order.
Rule 108 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 National Assembly or meeting of a committee of which he is a member, if he considers his presence necessary. On a production order, signed by the [National Assembly] Secretary or by any other officer authorised in this behalf, addressed to the government of the province 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 custody of the provincial government or other authority concerned.
While Asad Qaisar has, for the time being, no plan to issue the production order of Zardari and Saad Rafique, Punjab Assembly Speaker Chaudhry Pervez Elahi has instantly given permission to leader of the opposition and PML-N Vice President Hamza Shahbaz and Salman Rafique to attend the budget session. Previously, there was no provision in the Punjab Assembly rules for issuance of the production order. However, a few months back the rules were changed accordingly, and its first beneficiary was Salman Rafique.
It is also clear from Rule 108 that even the chairman of a House committee has the power to issue the production of a detained MP, who is its member, to attend its meetings. Even as the chairman of the Public Accounts Committee (PAC), leader of the opposition in the National Assembly Shahbaz Sharif has the power under this rule to issue his own production order.
Rule 103 says when a member is arrested on a criminal charge or for a criminal offence or is sentenced to imprisonment by a court of law or is detained under an executive order, the committing judge, magistrate or executive authority, as the case may be, will immediately intimate such fact to the Speaker indicating the reasons for the arrest, detention or conviction, as the case may be, as also the place of detention or imprisonment of the member.
According to rule 104, when a member is arrested and after conviction released on bail pending an appeal or otherwise released, such fact will be intimated to the Speaker by the authority concerned.
