Behind the Pakistan Supreme Court judgment disqualifying Prime Minister Yousaf Raza Gilani on Tuesday are two 2007 judgments of Indias Supreme Court which essentially address the question of judicial authority vis-a-vis the Speakers authority.
The two Indian Supreme Court cases along with six judgments in Pakistans courts have been cited to demolish Pakistans National Assembly Speaker Dr Fehmida Mirzas ruling last month against sending a reference for Gilanis disqualification to the Election Commission of Pakistan. Mirza is a senior leader of Pakistan Peoples Party and is considered close to President Asif Ali Zardari.
The Indian cases referred to by the Pakistani apex court establish two crucial points: First,the authority of the constitutional court to exercise power of judicial review if the decision of the Speaker is unconstitutional and against the Rules of Business of the House. Second,they establish that the power to disqualify an MP or MLA lies with the Election Commission and not the Speaker,obviously to avoid politically motivated decisions taken by the latter.
A gist of the two Indian cases cited in the Pakistani Supreme Courts verdict:
Rajendra Singh Rana vs Swami Prasad Maurya
In this case,the court ruled that the Speaker has to act fairly as a Tribunal under the Tenth Schedule of the Constitution while deciding whether a member has become disqualified to hold his position as a member of Parliament or of Assembly on the ground of defection.
In 2003,Mayawatis BSP cabinet decided to dissolve the 14th Assembly of Uttar Pradesh. Thirteen BSP MLAs then met the Governor to request him to invite rival SP leader Mulayam Singh to form the government. Knowing this,the then BSP leader of legislature Swami Prasad Maurya moved an application under the Tenth Schedule with the Speaker to disqualify the 13 MLAs on the ground of defection.
But the Speaker ignored this application and took a unilateral decision to recognise the claim of 37 MLAs that the BSP has split and a new party called Lok Tantrik Bahujan Dal was formed by the 37 MLAs,who merged it with the SP.
The apex court called the Speakers decision blatantly illegal as he ignored the disqualification application against the breakaway MLAs and instead went on to believe the MLAs version that there has been a split in the BSP.
Failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure. It goes against the very constitutional scheme of adjudication contemplated by the Tenth Schedule read in the context of Articles 102 and 191 of the Constitution. The same is a jurisdictional illegality,an illegality that goes to the root of the so-called decision by the Speaker on the question of split put forward before him. The decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review, a Bench comprising then CJI K G Balakrishnan,and Justices H K Sema,A R Lakshmanan,P K Balasubramanyan and D K Jain said.
The court upheld the earlier decision of the Allahabad High Court to quash the Speakers decision accepting the split in BSP.
Jagjit Singh vs State of Haryana
The Supreme Court suggested for the first time that the power of disqualification of an MP should be exercised by the Election Commission and not the Speaker. It said this observation came after several decisions taken by Speakers displayed political overtones.
The proceedings before the Speaker,which is also a tribunal albeit of a different nature,have to be conducted in a fair manner and by complying with the principles of natural justice, the Bench comprising then CJI Y K Sabharwal and Justices C K Thakker and P K Balasubramanyan observed.
The case revolved around the disqualification of a Haryana MLA Jagjit Singh,who split from the NCP to form a new party called Democratic Dal of Haryana.
The court said,Without meaning any disrespect for any particular Speaker in the country,but only going by some events of the recent past,certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal. It has been urged that if not checked,it may ultimately affect the high office of the Speaker.
The court referred to recommendations made by the National Commission to review working of the Constitution. The commission recommended that the power to decide on the question of disqualification on ground of defection should be vested in the Election Commission instead of the Speaker of the House concerned.
Whether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for Parliament to decide. We have noted this aspect so that Parliament,if deemed appropriate,may examine it, the court said.