Production Orders: Parliamentarians License To Violate Law?

Anytime a Parliamentarian has been arrested for having committed a crime, members of the concerned Assembly have immediately demanded the issuance of Production Orders, and procured a (temporary) release of the fellow comrade.

Production Orders

Saad Rasool |

The entire edifice of a constitutional parliamentary democracy rests on the premise that the parliament shall function as a conduit to translate the ‘will of the people’ into an enforceable legislative paradigm; that the people’s representatives will utilize their time and energies to improve the fabric of our governance, and debate the issues that concern the everyday lives of the citizenry. Most importantly, this system of governance, as encoded through the Constitution, rests on the fundamental assumption that the parliamentarians will discharge their “sacred trust” by swearing fidelity to the public agenda, as opposed to fleeting personal interests.

In Pakistan, however, it must be accepted with a heavy heart that our Parliamentarians have (almost) entirely failed in fulfilling this fundamental responsibility to the people.

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Too harsh? Let us investigate this claim. In terms of the National Assembly, over the past three years (including two years of the PML-N government), no major legislation or amendment, concerning public welfare, was passed – with one notable exception, of course: Election Act, 2017. And this legislation (the Election Act) was not passed in the spirit of public welfare or democratic interest; instead, it was passed in the wake of Nawaz Sharif’s disqualification in the Panama Case, and was aimed at achieving two specific objectives: 1) allowing Nawaz Sharif (a disqualified individual) to continue to hold the position of ‘Party Head’; and 2) to remove all requirements of disclosure and asset declaration from the nomination papers in the 2017 elections.

Thankfully, in exercise of judicial review powers, the honourable Courts struck down both these (unconstitutional) objectives. And in each case, members of the Parliament criticized, even scandalized, the honourable Court for taking cognizance of the matter.

Similarly, during this time, none of the Provincial Assemblies passed any meaningful legislation concerning welfare of the people (with recent notable exception of the Punjab Local Government Act, 2019).

However, throughout these years, the National and Provincial Assemblies have been in session for hundreds of days, consumed millions in terms of tax payers’ money, and have occupied an unnecessarily onerous space across the public and media waves. For days – nay, for weeks at a stretch! – we have been subjected to partisan bickering, at the floor of the Parliament, by political stalwarts from all sides of the isle. Members of the Cabinet, former Ministers, Prime Ministers and Presidents have all consumed public money, time and space to settle personal scores, without any legislative agenda.

There is one thing, however, that our Parliament (at the national and provincial level) has excelled in achieving: anytime a Parliamentarian has been arrested for having committed a crime, members of the concerned Assembly have immediately demanded the issuance of Production Orders, and procured a (temporary) release of the fellow comrade. And the existing demand by Mr. Bilawal Zardari (now a de facto member of PTM?), for the Production Orders of Ali Wazir and Mohsin Dawar, is just the latest episode in this abhorrent tradition.

This season of Production Orders was kicked off in October last year, with the arrest of Mr. Shahbaz Shrif, on allegations of corruption, misuse of authority, and accumulation of assets beyond known sources of income. Almost immediately, cloaked under the ill-suited banner of ‘parliamentary sovereignty’, opposition political parties demanded that the speaker issue Production Orders to allow Shahbaz Sharif to attend the Parliamentary session, as opposed to being investigated by NAB officials. The said parliamentary session continued for several weeks, during which time Mr. Shahbaz Sharif was allowed to make his political defense on the floor of the Parliament, was housed in the Minister’s Enclave, and afforded the protocol befitting someone accused of corruption.

Following suit, the Sindh Assembly issued Production Orders of Agha Siraj Duraani, who was also arrested on charges of billions of rupees stashed away in unaccounted wealth. Mr. Durrani was brought to the Sindh Assembly, and even allowed to preside over the on-going session, in an act that defied all democratic traditions and principles of criminal justice.

Most recently, Bilawal Zardari, joined by other opposition leaders, has demanded that Ali Wazir and Mohsin Dawar, the infamous MNAs from PTM, who are under arrest for inciting violence, firing at members of the armed forces, and violating their constitutional oath of ‘loyalty to the State’, be brought to the National Assembly through issuance of Production Orders. And this demand, in defense of those who are palpably against the State of Pakistan and its ideology, requires a deeper analysis.

In this regard, it is important to note that the law concerning the Production Orders emanates from ‘Rules of Procedure and Conduct of Business in The National Assembly, 2007’. Specifically, Rule 108 of the said Rules stipulates that ‘The Speaker or Chairman of a Committee may summon a member in custody on the charge of a non-bailable offence to attend a sitting or sittings of the Assembly or meeting of a Committee of which he is a member, if he considers his presence necessary’. For this purpose, a ‘Production Order’ is ‘addressed to the Government of the Province where the member is held in custody’, which shall ‘cause the member in custody to be produced’. In other words, this provision of the National Assembly Rules allows the accused, who otherwise would not be granted bail by the honourable Courts, to be produced from custody and given centre stage in the Parliament, without recourse to judicial due process of law. Such Production Orders are issued without judicial determination of facts, or any of the other legal requirements that would otherwise be applicable for the ‘temporary’ release of an individual under arrest.

In other words, this summary power is being used by our Parliamentarians to protect their fellow members – even those accused of heinous crimes – by sidestepping the judicial process of seeking bail. Not only that, such Parliamentarians are then afforded the unwarranted opportunity to make their political case on the floor of the Parliament, so as to influence the pending investigations, and malign State institutions in the process.

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Can this really be the purpose of the power to issue Production Orders? Is the issuance of Production Order now the de facto process to procure release of a Parliamentarian who otherwise would not be granted bail? Is the issuance of Production Orders, for partisan reasons, not a self-serving exercise of privilege by our law makers, so as to escape the clutches of our law and the rigors of independent investigation? Does this mean that no Parliamentarian can now be arrested or investigated on charges of corruption (e.g. Shahbaz Sharif) or even terrorism (e.g. Mohsin Dawar), till such time that the Parliament is in session?

And does this not amount to discrimination in favour of the privileged few? Could all the people arrested by NAB petition to be housed in the Minister’s Enclave and given uninterrupted media time, at par with Shahbaz Sharif? Can Allah Ditta fire at a military convoy, injure soldiers, and then be spared his physical remand on the request of Bilawal Zardari? Also, does this mean that being member of the Assembly provides immunity against criminal investigation? And, if so, should members of the ‘chotu gang’ and other criminal elements not aspire to become Parliamentarians – if only to sidestep our criminal justice system?

Furthermore, in a country where three-star Generals are being awarded life imprisonment, and brigadiers are being sent to the gallows on charges of espionage and disloyalty to the State, are we really going to welcome Ali Wazir and Mohsin Dawar (accused of similar charges) with garlands and rose petals? Should we just accept that being a Parliamentarian grants one the license to violate the law, with impunity, without recourse to due process of law?

We live in a caustic political environment. One that is dominated by partisan entrenchments and individual fiefdoms, above all concerns of constitutionalism and our collective national interest. Sadly, the next generation of our politicians – led by Bilawal Zardari and Mariam Safdar – have become the harbingers of this deplorable political culture. In the circumstances, regardless of personal political proclivities, every sensible Pakistani with even the faintest fidelity to rule of law must resist and revolt against this abominable culture of politics.

Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at [email protected], or Twitter: @Ch_SaadRasool. The article originally appeared at The Nation and has been republished with author’s permission.