Wednesday, June 20, 2012

Supreme Court of Pakistan Cites Two Indian Supreme Court Decisions in the Order Disqualifying Prime Minister Gilani

The Supreme Court of Pakistan has cited Rajendra Singh Rana v. Swami Prasad Maurya (February 2007) and Jagjit Singh v. State of Haryana  (December 2006) in its order that reviewed the decision of the Speaker of the National Assembly (lower house) to not proceed with the disqualification of Prime Minister Gilani. It might be worthwhile to clarify the scope of judicial review permissible under Indian law when it comes to decisions of the Speaker on disqualification of members. 

Readers will remember that Prime Minister Gilani was convicted of contempt of court on 26th April 2012, after which the Speaker of the National Assembly rejected a petition to proceed with the disqualification proceedings. According to Article 63(1)(g) of the Constitution of Pakistan:

63. Disqualifications for membership of Majlis-e-Shoora (Parliament):
A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if:-
(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed since his release;
The question that arose after the Supreme Court's decision on 26th April was whether Prime Minister Gilano was automatically disqualified from being a member of the Majlis-e-Shoora or whether it required the Speaker to refer the disqualification to the Election Commission under Art. 63(2):

(2) If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.
On receiving a petition seeking a reference to the Election Commission, the Speaker announced her decision that a case was not made out under Art.63(1)(g). It was this decision of the Speaker that was challenged in the Supreme Court of Pakistan and led to the order disqualifying the Prime Minister. The Supreme Court of Pakistan has cited the decisions in Rajendra Singh Rana and Jagjit Singh, along with other domestic decisions, to support its position that the decision of the Speaker can be reviewed.

However, those two Indian Supreme Court decisions adopt that position from the judgment in Kihoto Hollohan v. Zachillhu, delivered by a five-judge Constitution Bench in February 1992. In deciding the constitutionality of the 52nd Constitutional Amendment inserting the X Schedule (anti-defection law), the majority in Kihoto Hollohan held that judicial review of the Speaker's decision would be limited to “jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.” However, on the question of the constitutionality of Paragraph 7 (which sought to exclude judicial review) of the X Schedule, all judges in Kihoto Hollohan held that the ratification process required in Art. 368(2) was not completed and therefore invalid [since Paragraph 7 sought, in effect, to change Art. 136 in Chapter IV, Part V and Arts. 226 and 227 in Chapter V, Part VI, it was held that ratification of half the State legislatures was necessary as required by Art. 368(2)]. While the majority held that Paragraph 7 was severable and thereby saving the rest of the X Schedule, the minority (Justices JS Verma and LM Sharma) was of the view that the whole of X Schedule was invalid because Paragraph 7 could not be severed. However, it was held by the majority that irrespective of the position on Paragraph 7, courts could only exercise a narrow judicial review of the Speaker's decisions on disqualifications under the X Schedule. 

The Indian Supreme Court in Rajendra Singh Rana and Jagjit Singh reiterated the limited nature of judicial review while reviewing decisions of the Speaker and go on to exercise such limited review in those cases. As we wait for the more detailed order from the Supreme Court of Pakistan on the disqualification of Prime Minister Gilani, it will be interesting to see the contours of judicial review that is adopted in reviewing the decision of the Speaker of the National Assembly.

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