AS the PM’s adviser Babar Awan thundered against the opposition during a convention in Islamabad, and predicted how the hopes of the combined opposition to dethrone the prime minister would be dealt a technical/legal blow, the question asked in the title of this piece became all the more relevant.

The government of the day, for all its supposed confidence in the strength of its numbers, appears to be realising that some of its lawmakers in the National Assembly may, in fact, have cut deals and are making their way off the ship. The government has two options: a) it can either let the opposition have its day in the sun and allow it to browbeat the government and ultimately oust the prime minister with the help of his own allies and party legislators; or b) it can develop a strategy that makes the contest downright dirty.

It appears from countless discussions on news channels that the government has chosen the second option. The government has opted to publicly let it slip that the speaker of the National Assembly could interpret the provisions of Article 63A of the Constitution in a manner which, to most legal minds including myself and others, does not stand to reason and, worse, comes across as a deliberate act of disregarding the express provisions of the Constitution of this great country.

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The speaker of the National Assembly, it is being contended, will not count the votes of ‘turncoat’ members of the PTI, regardless of their presence in the Lower House during the no-confidence motion, on account of their being already ‘disqualified’. In reality, each member of the National Assembly has the right to vote and to have his or her vote counted; any action against a member for their alleged act of commission or omission needs to be taken after and not prior to the exercise of this democratic right.

A closer interpretation of Article 69 reveals that the supposed immunity it provides is being misconstrued.

However, if the speaker of the National Assembly decides to go ahead and acts according to the government’s interpretation of Article 63A, the question then arises whether his decision can be challenged in a court of law. Where the government is concerned, the answer to this question is no. They cite the example of the election of the Senate chairman in 2018 and quote Article 69 of the Constitution to support their stance. It appears from the vantage point of a TV audience that Article 69 and the supposed immunity it grants to the speaker of the National Assembly from having his decisions called into question is the real reason the government has decided to be, for lack of a better word, creative with its interpretation of Article 63A.

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If the government’s interpretation is to be implemented, it would mean that the decision of the speaker of the National Assembly would be placed on higher ground than the written words of the Constitution, which is intended to be supreme in matters of the law. Fortunately, as a student of law, a closer interpretation of Article 69 reveals that the supposed immunity it provides is being misconstrued.

Article 69 of the Constitution provides two sets of immunities. The first is immunity from calling into question the proceedings of parliament ie the National Assembly in this case, for “any irregularity in procedure”. The second is immunity from calling into question, before a court, the exercise of powers by an officer or member “for regulating procedure or conduct of business or for maintaining order”. It is clear, therefore, that the two immunities are with respect to “procedure” — whether it is for the conduct of business or for maintaining order.

So does the interpretation of Article 63A, including the barring of any member of the National Assembly from exercising their right of vote, in stark contrast to what most legal minds consider to be clear and obvious wording, come within “procedure”? The answer to this question lies in Article 67 of the Constitution which lays out what constitutes “procedure” and “conduct of business”, and how the same is regulated by the “rules of procedure made by the President”.

Most importantly, though, Article 67 starts with the words “Subject to the Constitution”. Put simply, this means that all powers of regulating procedure and the conduct of business provided for in the rules of procedure are subservient to the express wording of the Constitution and cannot supersede the document. In case it does, the immunities granted do not extend to such extra-constitutional exercise of powers.

This is where — if the speaker of the National Assembly presses ahead with his rather colourful interpretation of the Constitution — lies the remedy for the opposition: the interpretation of Article 63A, apart from what its express words, would ordinarily entail, would not be a procedural lacuna. In fact, it would be an act ultra vires the speaker’s powers under the Constitution. The wording of Article 67, read with Article 69 and Article 63A, makes it crystal clear that the drafters of the Constitution were aware of the room for extraordinary interpretation of the words enshrined therein. Therefore, they made sure that the immunities supposedly granted to the speaker and other members were kept in check, so as to avoid anarchy and allow for room for the courts to step in and curb disregard of the Constitution.

While this may be a topic for the courts to examine, one hopes that better sense prevails and that the government of the day decides to stick to the actual, precise and unequivocal meaning of Article 63A, instead of once again creating a crisis where the courts have to step in and resolve a purely political matter.

The writer is a high court advocate.

Published in Dawn, March 17th, 2022