Pakistan’s Parliament in an unprecedented move passed a number of controversial bills in a hurriedly summoned joint session of both houses of Parliament (National Assembly and Senate) on 17 November 2021 (yesterday). Two of the bills related to amendments in the Election Act, 2017 whereunder, for the first-time, electronic voting machines (EVMs) would be used for the elections to be held under the Constitution. Moreover, overseas Pakistanis have been given the right to vote via internet through the second amendment in the said law. In addition to the above, some other bills were got approved in the said specially called joint session of Parliament. Apparently, the Federal Government did not have the sufficient majority in previous attempts to get those laws passed through the normal procedure for legislation provided under the Constitution.
The procedure for law-making in Parliament is given in Article 70 of the Constitution. Article 70 was substituted under the 18th Amendment 2010. Previously, under the provisions of Articles 70 & 71 as amended by P.O. 14 of 1985 such matters were resolved through a Mediation Committee comprising of eight members and its chairman used to be from the house where the bill originated. In a normal course a bill (draft law), within the legislative competence of Parliament (under Article 142 (a) all matters contained in the Fourth Schedule to the Constitution) other than the Money Bill, can be introduced in the either house, National Assembly or the Senate. After having been passed in the house where that bill originated it is then transmitted to the other house. If the bill is passed by the other house as well it is then sent to the President for his assent. After the President’s assent that bill becomes law of the land. The said Article 70 (3) envisages a situation where a public bill (a bill introduced by the sitting Government) is either rejected or not passed by a house within ninety days of its transmission to the said house or having been amended by the other house is not passed by that house then on the request of the house wherein the bill originated the same is presented in a joint session of Parliament and if passed by the majority of members present and voting it becomes law after the President’s assent.
The procedure for legislation in a joint session is also provided in the Australian (Article 57) and Indian Constitution (Article 108). Under the Australian provision if a bill cannot be passed after rejection of the Senate, then the Governor General dissolves the Senate and House of Representatives. After the new houses are elected and the deadlock remains over the proposed legislation then Governor General convenes a joint session of both houses and if the bill is passed with an absolute majority of the total members of both the houses it is presented for the assent of the Governor General. Under section 2(1) of the Parliament Act, 1949 of the United Kingdom, if a bill is passed by the House of Commons (directly elected house) twice in a year and the same is rejected twice by the House of Lords (un-elected house) then upon the second rejection by the House of Lords the said bill is presented for Royal Assent and upon the signification of Royal Assent it becomes law. There was a similar provision contained in section 38(2 and (4) of the Government of India Act, 1935. In the Parliamentary history of India only on three occasions laws were passed in a joint session of the Indian Parliament (the Dowry Act, 1960, the Banking Service Commission Repeal Act, 1978 and the Prevention of Terrorism Bill 2002). Under the Indian provision, a simple majority of the total members in both houses present and voting is required to pass a bill in a joint session. Under Article 70(3) of the Constitution of Pakistan, however, the requirement is less stringent. A simple majority of the members present and voting is required to get a bill approved in a joint session. In the United States Constitution there is no provision for joint session. They have evolved other methods to end deadlock over legislation. There is another fundamental departure under Article 70(3) of Pakistan’s Constitution from the Indian Constitution and the Government of India Act provisions. A bill is considered in a joint session at the request of a house in which the bill originated at the request of Speaker or Chairman Senate, as the case may be, when the Parliament is in session and if it is not in session then the Speaker requests the President to summon the Session under Rule 155 of the Rule of Procedure and Conduct of Business, 2007. The joint session for this purpose is summoned by the President of India for that purpose. Under Article 51 of the Constitution of Pakistan, now the President is part of the Parliament.
The Constitution permits passing of laws in a joint session of Parliament. This is however not a rule but an exception for the reason that Constitution envisages a normal procedure for legislation under Article 70 (1) thereof. Pakistan is a federal polity where the Senate represents all federating units. Federalism is now a basic feature of the Constitution as declared by the Supreme Court of Pakistan in the Rawalpindi Bar Association Case (2015). The Constitution is not merely the words inscribed in the Constitution but the larger principles evolved over the centuries of trial an error in the business of Government in England and other modern liberal democracies from where our present Constitution was borrowed in form and substance. One of the founding principles of the Constitutional law is that the representatives of people despite having powers would not pass any law that is against the public opinion. A V Dicey in his seminal work, Lectures on the Relations Between Law and Public Opinion in England During the Nineteenth Century, said “True it is that the existence and alteration of human institutions, must, in a sense, always and everywhere depend upon the beliefs and feelings, or, in other words, upon the opinion of the society in which such institutions flourish”. All these laws passed in a joint sitting were by no means based on a consensus originating from the prevailing public opinion. They are unlikely to serve the cause of democracy. Supremacy of Parliament, rule of law and attainment of true democracy unsullied from any interpolations and manipulations can only be assured by developing a democratic culture for which tolerance is the basic requirement.
(The writer is Advocate Supreme Court and a
former Additional
Attorney-General for Pakistan. The views expressed in this article are not necessarily those of the newspaper)
Copyright Business Recorder, 2021