P L D 2013 Balochistan 66
Before Jamal Khan Mandokhail and Muhammad Noor Meskanzai, JJ
MUHAMMAD ASLAM BHOOTANI ---Petitioner
Versus
DEPUTY SPEAKER, BALOCHISTAN PROVINCIAL ASSEMBLY and 2 others ---
Respondents
Constitutional Petition No.926 of 2012, decided on 9th January, 2013.
(a) Constitution of Pakistan ---
----Art. 53(7)(c) ---Speaker/Deputy Speaker ---Removal from office by a resolution of the
Assembly ---Procedure ---Conditions ---Article 53(7)(c) of the Constitution provided two
conditions for the removal of a Speaker or Deputy Speaker; firstly the issuance of seven days
prior notice before tabling a resolution, and secondly, the resolution must be carried out with a
majority of the total membership of the Assembly.
(b) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974 --
-
----R.2(o) ---"Motion" moved by a member of the Provincial Assembly ---Meaning ---Motion
meant any proposal made for the purpose of eliciting a decision of the House to do something,
order som ething to be done or express an opinion with regards to the same matter.
(c) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974 --
-
----R. 11 --- Constitution of Pakistan, Art. 69 read with Art.127 ---Court not to inquire into
proceedings (internal affairs) of Assembly ---Scope --- Proceedings of no confidence motion
against Speaker of Provincial Assembly --- Such proceedings came within the purview of
"internal affairs" of Assembly.
(d) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business, 1974 --
-
----R. 11(8) ---Constitution of Pakistan, Art. 69 read with Art.127 ---Court not to inquire into
proceedings (internal affairs) of Assembly ---Parliamentary privilege enjoyed by members of
Assembly ---Scope and exceptions --- Assembly, its members and other par ticipants in the
parliamentary process did enjoy immunity as far as internal affairs of Assembly were concerned -
--Courts always uphold and refuse to question the control of House over its internal proceedings
to ensure smooth functioning of the Assembly ---Assembly was the judge of its internal affairs,
but only when the privilege breached, had been declared by law to be parliamentary privilege ---
Court could however intervene in the internal affairs of Assembly in case of contravention of the
Constitution; i n case of breach of a fundamental rights or violation of the law; in case a criminal
act was committed by a member; in case of an endeavor to trample the constitutional
prohibitions, and cases where interpretation of a provision of the Constitution or any statute was
involved.
(e) Parliamentary privilege ---
----Breach of privilege by member of Parliament ---Initiation of proceedings ---Jurisdiction and
scope ---Constitution in no way prevented the legislature from proceeding against its own
members for th e breach of privilege or any rule, hence, jurisdiction over members exclusively
belonged to the House.
(f) Interpretation of Constitution ---
----Privileges contemplated by the Constitution ---Interpretation ---Such privileges were to be
liberally inter preted.
(g) Provincial Assembly of Balochistan Rules of Procedure and Conduct of Business 1974 ---
----R.11(8) ---Constitution of Pakistan, Art. 53(7)(c) read with Arts.127 & 199 ---Constitutional
petition ---No confidence motion against Speaker of Provin cial Assembly ---Resolution to remove
the Speaker ---Voting ---Allegation against some members of the Assembly of not maintaining
secrecy of ballot ---Plea of petitioner (Speaker removed through no confidence motion) was that
certain members of the Assembly fa iled to maintain secrecy of ballot by exhibiting/showing their
ballots papers during the vote, which was against Rule 11(8) of Provincial Assembly of
Balochistan Rules of Procedure and Conduct of Business, 1974 ---Validity ---Rule 11(8) of
Provincial Assembl y of Balochistan Rules of Procedure and Conduct of Business, 1974 was
directory in nature, as on its violation, no consequence upon the voting proved was suggested,
consequently non -adherence of the said Rule would not vitiate the entire proceedings ---
Allegation of exhibiting ballot papers had been levelled against two to five members ---Such
allegation, even if true, was a personal act of an individual, therefore, his vote could be
cancelled ---47 members cast their vote in favour of the resolution, and even if votes of 5
members against whom allegation was made, were deducted, still 42 votes, i.e. majority
remained in favour of the resolution ---Alleged violation of Rule 11(8) of Provincial Assembly of
Balochistan Rules of Procedure and Conduct of Business, 1 974 by some of the members would
have no bearing upon the net result of the resolution ---Proceedings of the resolution could not be
termed as illegal in circumstances ---High Court, however, observed that members of the
Provincial Assembly who violated sanc tity of secret ballot violated the rules, which was
injurious to the dignity of the House, and it was expected of the Speaker that he might take strict
action against such members ---Constitutional petition was dismissed accordingly.
(h) Provincial Assem bly of Balochistan Rules of Procedure and Conduct of Business 1974 --
-
----R-11---Constitution of Pakistan, Arts. 53(7)(c), 69 (both read with Art.127) & 199 ---
Constitutional petition ---No confidence motion against Speaker of Provincial Assembly ---
Resolut ion to remove the Speaker ---Plea of petitioner (Speaker removed through no confidence
motion) was that procedure provided for no confidence motion against him was violated in the
present case, therefore, notification vide which he was removed from office s hould be set aside --
-Validity ---Motion against petitioner was moved and notices were issued within the time
stipulated under Art.53(7)(c) of the Constitution read with Art.127 thereof ---Resolution was
supported by 47 members out of a total of 65 by casting of votes ---Petitioner failed to show any
constitutional violation to enable the High Court to interfere in the internal proceedings of the
Provincial Assembly --- Constitutional petition was dismissed accordingly.
Hadi Shakil Ahmed, Baz Muhammad Kakar, Jamal Abdul Nasir and Wajahat Khan
Ghaznavi for Petitioner.
Sardar Abdul Latif Khosa, Kamran Murtaza, Raja Abdul Rehman, Asim Mumtaz, Qari
Rehmatuallh, Aminullah Kakar, Munir Ahmed Kakar, Muhammad Qahir Shah and Ali Ahmed
Lehri for Respondents.
Aman ullah Kanrani, A.G.
Date of hearing: 31st December, 2012.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---The petitioner was the Speaker of the
Balochistan Provincial Assembly with effect from 2008. One of the members namely Moulana
Abdul Wassey, the Senior Minister, Government of Balochistan, moved a motion of no
confidence against him under Article 53(7) -C of the Constitution of the Islamic Republic of
Pakistan 1973 (called hereinafter "the Constitution'"). On the basis of said motion, a resolution
was pass ed against the petitioner on 20h December 2012, resulting into his removal. The
petitioner feeling aggrieved from the procedure adopted on the motion and the resolution
preferred the instant petition.
2. Learned counsel for the petitioner stated that sin ce the session of the Assembly was
already summoned by the Governor of Balochistan, therefore, the members of treasury bench
were not entitled to move the motion in the said motion. He further stated that the motion was
moved by Moulana Abdul Wassey, where as, on the point of order, the resolution was tabled by
another member viz. Ainullah Shams, which is against the provisions of the Constitution as well
as the Rules of Procedure and Conduct of Business of the Assembly. He next argued that as per
the rule 1 79 of the Balochistan Provincial Assembly Rules of Procedure and Conduct of
Business 1974 (called hereinafter 'the Rules'), a notice should have been issued to every member
before moving the motion for no confidence, but according to him, the notice has no t been issued
to each and every member, which is an illegality and irregularity. He further contended that as
per sub -rule 5 of rule 11, at the time of moving the motion, it is a condition precedent that 1/4th
of the total members of the Assembly have to r ise on their seats to get permission for carrying
out the motion, but this procedure has also been violated. According to the learned counsel, the
motion was to be submitted before the Secretary of the Assembly, but instead, it was submitted
before the Add itional Secretary, hence committed an illegality and irregularity. The learned
counsel stated that certain members after casting their votes, showed their ballot papers to the
officials, which is against rule 11 and have failed to maintain the secrecy of b allot paper, on the
basis whereof, their votes were liable to be cancelled, but these were counted. The learned
counsel lastly argued that the procedure provided for the resolution of no confidence against the
Speaker has been violated, which vitiates the entire proceedings, but the presiding officer did not
consider this aspect of the case, hence has committed an illegality and irregularity. The
petitioner, therefore, requested for setting aside of the impugned notification dated 26th
December 2012, whereb y he has been removed from his office.
3. Learned Advocate General and the learned counsel for the respondent No.1 opposed the
contention and stated that the procedure for carrying out the resolution was the internal affair of
the Assembly, the same can not be called in question through the Constitution Petition before this
Court. They further stated that even otherwise, no violation of the rules has been committed by
any of the members of the Assembly, therefore, the allegations in this behalf are false and
fabricated. They stated that no constitutional violation in proceedings has been
pointed out by the petitioner. The petitioner has been removed by the majority of the members of
the Assembly, therefore, he is bound to accept the decision of the House.
4. The objection regarding the maintainability of the petition is of a substantial nature,
therefore, we intend to resolve it at the earliest. The Constitution deals with different affairs of
the Parliament, out of which, Article 67 empowers the Parliame nt to frame rules to regulate its
internal affairs. Similarly, Article 53(7) clause "C' of the Constitution assigns powers to the
members of an Assembly to remove a Speaker or a Deputy Speaker from their offices by a
resolution. The Article is reproduced h erein -below:
"53. (7) The office of Speaker or Deputy Speaker shall become vacant if -
(c) he is removed from office by a resolution of Assembly, of which not less than seven
days' notice has been given and which is passed by the votes of the majori ty of the total
membership of the Assembly'
5. It is to be noted that the above provision of the Constitution provides two conditions for
the removal of a Speaker or a Deputy Speaker. Firstly, the issuance of seven days prior notice
before tabling a reso lution, and secondly, the resolution must be carried out with a majority of
the total membership of the Assembly. The record reflects that the motion was moved on 19th
December 2012 and notices were issued within stipulated period accordingly. Finally, a
resolution was tabled on 26th December 2012, which was supported by 47 members out of 65
members of the Assembly by casting their votes. Only one vote was cast against the resolution
and rest of the members, including the petitioner, abstained from casting their votes. Thus, the
learned counsel for the petitioner has failed to show any constitutional violation in the
proceedings.
6. So far the objection of the petitioner with regard to the violation of the rules of business
by the members during the procee dings of the no confidence motion is concerned, it is a fact that
the Constitution does not provide a detailed procedure for conducting an elections of a Speaker
or a Deputy Speaker and a no confidence motion against them. The Assembly by exercising
powers under Article 67 of the Constitution, framed the Rules to regulate its internal affairs. Rule
11 prescribes a detailed procedure for a No Confidence Motion against a Speaker, which is
reproduced herein below: --
"11. (1) A Member may give notice to the Secretary, in writing, of a motion for leave to
move resolution under paragraph (c) of clause (7) of Article 53 read with Article 127 of the
Constitution for the removal of the Speaker or the Deputy Speaker and the Secretary shall as
soon as may be, circul ate the notice to the Members.
(2) The motion for leave to move the resolution shall be entered in the name of the
Member concerned in the Orders of the Day for the first working day after the expiry of 7 clear
days from the date of the receipt of the n otice under sub -rule (1).
(3) No other item shall be included in the Orders of the Day, for the day fixed for a motion
for leave to move a resolution under sub -rule (2).
(4) The Speaker or, as the case may be, the Deputy Speaker shall not preside over a
sitting of the Assembly when a resolution for his own removal is being considered.
(5) Immediately after the motion referred to in sub -rule (2) has been moved, the Presiding
Officer shall call such of the Members as may be in favour of the leave being granted to rise in
their seats and if at least one fourth of the total membership of the Assembly does not so rise, he
shall declare that the Member has not the leave of the Assembly, or such membership so rise,
call upon the Member concerned to move the resolution.
(6) Except with the permission of the Presiding Officer, a speech on the resolution shall
not exceed fifteen minutes in duration:
Provided that the Speaker, or as the case may be, the Deputy Speaker, against whom the
motion has been moved and the mover of the resolution may speak for thirty minutes or such
longer time as the Presiding Officer may allow.
(7) After a motion referred in sub -rule (2) has been moved, the Assembly shall not be
adjourned until the motion for leave is disp osed of or if leave is granted, the resolution has been
voted upon.
(8) Voting on the resolution shall be by secret ballet, which shall be held in such manner
as the Presiding Officer may direct.
(9) If these sessions during which notice has been giv en under sub -rule (1) has been
convened by the Speaker in pursuance of clause (3) of Article 54 read with Article 127 of the
Constitution, the Assembly shall not be prorogued, until the motion is disposed of or if leave is
granted, the resolution has been voted upon.
(10) The Speaker or the Deputy Speaker, as .the case may be, shall stand removed from
his office if the resolution is passed by a majority of the total membership of the Assembly."
7. Though it is not defined as to what is an internal proc eeding, yet it is clear that anything
and everything done within the House can be termed as "an internal affair". Now, a question
arises, as to whether the proceedings upon the motion of no confidence also come within the
purview of internal affairs of the Parliament? In its widest sense, the motion means any proposal
made for the purpose of eliciting a decision of the House to do something, order something to be
done or express an opinion with regard to same matter. In rule 11 supra, it is clearly said tha t if
any member intends to move a resolution of no confidence against the Speaker, he/she has to get
leave. Then, the resolution is placed before the House, the members are called to debate on it and
finally the question is resolved by ballot. When a quest ion on the resolution is agreed by the
majority of the members, it becomes an order of the House. Thus, undoubtedly such proceedings
come within the purview of an internal affair of the Parliament.
8. The proceedings of a Parliament are protected by Art icle 69 of the Constitution, which is
reproduced herein -below:
"69. (1) The validity of any proceedings in [Majlis -e-Shoora (Parliament)] shall not be
called in question on the ground of any irregularity of procedure.
(2) No officer or member of [Maj lis-e-Shoora (Parliament)] in whom powers are vested
by or under the Constitution for regulating procedure of 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.
Pursuant to the above provision, the Parliament, its members and other participants in the
parliamentary process, do enjoy the immunity as far as the internal affairs of the Parliament are
concerned. According to the aforesaid Article of the Constitution, the proceedings of the
Parliament shall not be called in question on the ground of a procedural irregularity or minor
technicalities. The privileges contemplated by the Constitution are to be liberally interpreted ,
therefore, the courts always upheld and refused to question the House's control of its own
internal proceedings to ensure a smooth functioning of the Parliament. In this way, a principle of
the freedom of the Parliament as provided by the Constitution is maintained, which helps
strengthening the democracy.
9. Now a question arises as to whether the jurisdiction of a Court has completely been
ousted in respect of the proceedings of the Parliament? It is true that the Parliament is the only
judge on its i nternal affairs, but that is only, when the privileges breached, has been declared by
law to be the parliamentary privileges. However, in case of a contravention of the Constitution,
breach of fundamental rights, violation of any law, committing a criminal act by a member,
endeavor to trample the constitutional prohibitions, involves interpretation of the provisions of
the Constitution or any statute, while participating in the internal affairs of the Parliament, the
Court can intervene. Since the petitione r through the instant petition, has failed to point out any
ground, enabling us to interfere in the internal proceedings of the Provincial Assembly, therefore,
it is not for us to indulge into a rough and tumble arena of politics.
10. It is the obligation of every member to follow the rules framed by the Parliament to run
its internal affairs, and the Speaker or the Presiding Officer, as the case may be, being the
custodian of the Assembly, has to ensure its implementation. The petitioner pointed out that at
the time of the proceedings of the no confidence motion, rule 11 has not been followed.
According to him, certain members of the Assembly, after casting their votes, allegedly exhibited
the ballot papers to the officials of the Assembly, hence , failed to maintain the secrecy of the
vote, which according to the learned counsel, vitiates the entire proceedings of the no confidence
motion. The learned counsel did not show the consequence of violation of any rule. Sub -rule (8)
of rule 11 of the Bal ochistan Provincial Assembly Rules of Procedure and Conduct of Business
1974 is relevant, which is directory in nature as on its violation, no consequence upon the voting
process has been suggested, consequently its non -adherence will not vitiate the entir e
proceedings. The allegation of exhibiting of the ballot papers has been levelled against two to
five members. If it is believed to be true, even then it was a personal act of an individual,
therefore, under such circumstances, the vote of the individual could have been cancelled. It is a
fact that 47 members cast their votes in favour of the resolution. If five votes are deducted from
these votes, even then, the majority votes, i.e. 42 votes, still remains in favour of the resolution.
In such view of the matter, the alleged violation of the rule by some of the members has no
bearing upon the net result of the proceedings, therefore, no interference is warranted. Hence, on
such ground, the whole proceedings cannot be termed as illegal.
11. It is a fact th at under Article 69 of the Constitution, a member enjoys an immunity from
an external review, while participating in the proceeding, but it does not grant a license to a
member to be free of all restrains, in how one conducts oneself. The Constitution in n o way
prevents the legislature to proceed against its own members for the breach of the privilege or any
rule, hence, the jurisdiction belongs exclusively to the House over its members. After going
through the photographs annexed with the petition, it is p ainfully observed that a few members
exhibited their ballot papers openly to the officials by violating sanctity of the secret ballot. The
alleged act of the members is a violation of the prescribed rules. An infringement of these
general rules or a partic ular conduct, which is injurious to the dignity of the House, is liable to be
dealt with accordingly by the House. We therefore expect that the Speaker being the custodian of
the House may initiate strict action against those, who violated the rules and th ereby disgraced
the Assembly.
12. Thus, in view of what has been stated and discussed hereinabove, the petition is
accordingly dismissed. These are the reasons of our short order dated 31st December, 2012.
MWA/22/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.