Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday questioned President Arif Alvi’s lawyer where the constitutional crisis in the country was if everything was happening as per the Constitution.
At the top judge’s inquiry, Senator Ali Zafar voiced his agreement. “I am also saying that there is no constitutional crisis in the country,” the lawyer said.
This exchange came as a five-member bench, headed by the JCP and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel took up the case around 9:30 am.
The CJP’s observation came as the president’s counsel, Zafar, finished his arguments. At one point, Justice Bandial asked the counsel why he was not explaining whether or not there was a constitutional crisis in the country.
During the hearing, Zafar was asked by Justice Miankhel if the prime minister was the people’s representative. The lawyer replied in the affirmative.
Justice Miankhel then inquired if the premier would be protected if the Constitution was violated in parliament. “Is Parliament not the guardian of the Constitution?” he asked. He also questioned how justice would be awarded in case someone is affected due to parliamentary proceedings.
At this, Zafar replied that the Constitution must be protected in accordance with the rules it underlines. He said that in order to protect the Constitution, each and every article had to be kept in mind.
Justice Bandial then asked what would happen when injustice was carried out against the entire assembly, not just one member.
“Can Parliament interfere if there’s a conflict between judges,” Zafar offered as a counterargument. “The answer is no. The judiciary has to settle the matter. It can’t interfere just like Parliament can’t [interfere in judges’ matters].”
The CJP also asked whether the formation of the federal government was an “internal matter” of Parliament.
Zafar said that the no-confidence motion and the prime minister’s election fell within the ambit of Parliament. He said that the National Assembly is formed for the purpose of appointing a speaker and a prime minister.
He also referred to former PM Mohammad Khan Junejo’s case, which was dismissed by ex-president Gen Ziaul Haq. “Junejo’s government was dissolved and the court declared it unconstitutional,” Zafar pointed out, adding that the court did not interfere in actions taken after the dissolution of the assembly.
However, Justice Miankhel said that the matter at present concerned the no-confidence motion. “A ruling came after the motion. Address this issue,” he told Zafar. JCP Bandial also said that the verdict he was referring to was related to the oath. “Here the matter is about the ruling, not the oath. We have to draw a line somewhere.”
However, Zafar argued that in this case elections were announced after dissolving the assembly.
At one point, the JCP asked Zafar why he wasn’t explaining whether or not there was a constitutional crisis in the country. “If everything is happening according to the Constitution, where is the crisis?” he asked.
Zafar replied that he was also saying the same and there was no constitutional crisis in the country.
The JCP also observed that there seemed to be a violation of Article 95. He noted that holding elections cost the nation “billions of rupees”.
However, Zafar argued that the announcement of the election showed there was no malice behind the government’s move.
Justice Mandokhel questioned whether the prime minister could still advise the president to dissolve the assembly if a majority of the members were opposed to it.
Justice Ahsan noted that the PTI still held the majority despite the recent defections. “But what if the majority party is ousted from the system?” he wondered.
Zafar replied that the president’s counsel couldn’t comment on political matters and ended his arguments.
‘NA proceedings beyond judiciary’s jurisdiction
The lawyer for interim Prime Minister Imran Khan, Imtiaz Siddiqui, began by pointing out that the judiciary had not interfered in parliamentary proceedings in the past.
“The matter at hand concerns NA proceedings. [But] NA proceedings lie beyond the judiciary’s jurisdiction,” he argued, urging the court to tell parliament to settle its own matters. He said that the opposition had not objected to the deputy speaker chairing the session.
“The deputy speaker made a decision according to what he thought was best,” Siddiqui contended, adding that the deputy speaker wasn’t accountable to the court for the ruling he gave. He reiterated that under Article 69, the apex court could not interfere in parliamentary proceedings.
Justice Akhtar noted that verdicts referenced observations made by the courts. “The court is not bound by the observations given in the verdicts,” he said.
Here, Siddiqui stated that the deputy speaker had relied on the assessment of the National Security Committee (NSC), adding that no one could influence the top forum.
This led the JCP to ask when the minutes of the NSC meeting were presented before the deputy speaker. Siddiqui said that he was unaware about matters concerning the deputy speaker, which prompted the court to tell the lawyer to refrain from talking about things he was unaware of.
“According to you, the deputy speaker was in possession of material on the basis of which he delivered his ruling,” Justice Bandial observed, asking what would be the consequences of the premier violating Article 58.
He also observed that Suri had not objected to voting on March 28 but had passed the ruling on April 3. “Why did the deputy speaker not dismiss the no-trust motion on March 28?”
Justice Ahsan remarked that if the assembly was not dissolved, the house could have suspended the deputy speaker’s ruling. “The prime minister took advantage of the situation and dissolved the assembly,” he said.
However, Siddiqui argued that if the aim was to harm the Constitution, the deputy speaker could have suspended the membership of the dissident lawmakers. “The prime minister did not show any malice,” he contended.
“You’re saying that the prime minister made a plan,” the chief justice said, again asking why the ruling was not issued on March 28 instead.
Siddiqui replied that no plan was hatched to dismiss the no-trust motion. “We dissolved our government ourselves,” he said. He went on to quote the prime minister as saying that he would never have ended his government if there was any malice behind his actions.
He added that according to Imran, billions were spent on holdings elections and he was going to the nation against those who had ruled the country for many years.
‘Election process not stopped in past after dissolution of assembly’
Naeem Bukhari, the speaker for the NA speaker and deputy speaker, presented his arguments after Siddiqui, stating that he would focus on whether a point of order could be discussed at any time.
Bukhari argued that the apex court had refrained from interfering in parliamentary proceedings in the past and asked whether the court would have taken notice if the speaker had dismissed Fawad Chaudhry’s point of order.
“When assemblies were dissolved in the past, the election process was not stopped even though it was declared unconstitutional,” he said, asserting that the speaker could reject the no-trust move on a point of order. “This has never happened before but the speaker has the power [to do so].”
He said that the former minister had requested a point of order as soon as the session had began. “The point of order couldn’t have been taken up had voting on the no-confidence motion started,” he said.
Bukhari also presented the minutes of the Parliamentary Committee on National Security, during which contents of the ‘threat letter’ were shared with parliamentarians.
Situation in Punjab
At the outset of the hearing, Punjab Advocate General Ahmed Awais brought the court’s attention to the mock Punjab Assembly session held by the opposition on Wednesday where PML-N’s Hamza Shehbaz was declared the new chief minister of the province.
He said that former Punjab governor Chaudhry Sarwar would administer the oath to Hamza at a ceremony at Bagh-i-Jinnah, adding that the PML-N leader had also called a meeting a bureaucrats for today. He contended that the Constitution was a “trivial matter” for the PML-N.
However, the CJP asserted that the apex court would not give any orders regarding the situation in Punjab and advised the counsel to take the matter to the high court.
Meanwhile, Justice Miankhel noted that the doors of the Punjab Assembly were sealed on Tuesday and wondered it this was allowed. However, the CJP reiterated that the court would not divert attention from the case at hand.
‘No-trust resolution had constitutional backing’
During yesterday’s hearing, PTI’s lawyer Babar Awan as well as Senator Ali Zafar, representing President Dr Arif Alvi, had argued before the Supreme Court. Today, the court is expected to hear the arguments of Attorney General for Pakistan (AGP) Khalid Jawed Khan and Naeem Bukhari — the counsel for NA Speaker Asad Qaiser.
Justice Bandial on Wednesday observed that even though Article 69 of the Constitution bars interference in parliamentary proceedings, what happened on April 3 was unprecedented.
“The no-confidence resolution which had a constitutional backing and liable to be succeeded was scuttled at the last minute,” the CJP regretted, adding that if “we permit such a deviation” then it would amount to what Advocate Salahuddin Ahmed had referred to on Tuesday.
Representing the Sindh High Court Bar Association, Advocate Ahmed had cited a 1933 incident when the speaker of the then German assembly, while branding members of the Communist Party as traitors, allowed voting on a constitutional amendment that vested Adolf Hitler and his cabinet with unlimited powers to bring any law without a formal approval of German parliament. That development led Germany’s descent into fascism, the lawyer had recalled.
During the hearing, PML-N Senator Azam Nazir Tarar drew the court’s attention to the precarious situation in Punjab where the provincial assembly secretariat was sealed despite the calling of the session by the deputy speaker. Advocate Imtiaz Siddiqui, who represents the interim prime minister, however, declared the notification as fake.
At this, CJP Bandial said if the system was not functioning then the constitutional functionaries had the authority to assemble anywhere, even at Bagh-i-Jinnah, to hold the session, instead of the assembly hall. He observed that the court didn’t want to get distracted by the situation in Punjab, adding that if “you people are at loggerheads with each other then go to the political sovereign”.
They should learn from the conduct of the National Assembly members who come to the court daily without making any noise and stand here with grace and dignity, the CJP said, adding that the provincial assembly members should find their own solution.
Justice Bandial observed that though the NA deputy speaker’s ruling, according to the lawyer, might be flawed, it was protected under Article 69 of the Constitution. Eventually, the ruling later led to the dissolution of the National Assembly for fresh elections.
“Where is the malice if this development is not anti-democratic,” the JCP wondered, but then said there was an element of trickery and if the members had any grouse then why were they afraid of fresh elections?
Justice Mandokhel observed that when political parties believed that floor crossing was malice and all the political parties had suffered in the past, then they must discover the weaknesses which encouraged members to change loyalties and should find a solution by concentrating on institution building.
He said the court would decide the present case in the interest of the country that would be binding upon all. He wondered why the entire assembly was thrown out instead of inquiring about the conduct of those who connived with a foreign state to dislodge the government.
Justice Akhtar recalled that the UK Supreme Court had ruled the other day that it was the court that would determine the privileges of members of parliament.
Senator Ali Zafar argued that the law of parliamentary privileges had been developed in the context of the principle of trichotomy of powers, under which parliament had certain privileges — the fundamental and foremost privileges are that parliament is the sole and exclusive judge and master of its own proceedings and business and no decisions or rulings made while conducting parliamentary proceedings or business were justiciable.
The president’s counsel cited a recent speech of Justice Maqbool Baqar who emphasised the delicate balance between institutions through mutual balance like honeycomb. He said it was also part of parliamentary privileges that no officer, including the deputy speaker, was subject to jurisdiction of courts in respect of parliamentary privileges or proceedings.
The law on parliamentary privileges is the same as that of the UK House of Commons.
“It is only if a proceeding is outside the scope of proceedings in parliament that the court can examine,” Zafar argued, adding that the Supreme Court could look into the subsequent development of the dissolution of the National Assembly on the advice of the prime minister but not the ruling of the deputy speaker.
“The vote of confidence is clearly a matter of proceedings in the National Assembly and any ruling passed by the speaker or deputy speaker in respect thereof or during the same is not justiciable,” he said.
“In view of the constitutional crisis, the best and the only solution lies with the ultimate sovereign i.e. the people of Pakistan,” he argued, adding that the only remedy available was election.
“Since the appeal has been made to the people of Pakistan and elections are to take place in 90 days, as per the established practice and prudence established by the courts, it should not be interfered at this stage and let the people decide.
“The dissolution of the assemblies is an independent act undertaken by the president under Article 48(5), read with Article 58. At the time, no resolution of no confidence was pending against the prime minister and, hence, the dissolution cannot be questioned under Article 48(4),” the counsel emphasised.
Zafar pointed out that when the elections of the Senate chairman was challenged in the Islamabad High Court, it had ruled that the constitutional elections in parliament were protected [from judicial intervention] as well.
He said the court could only review the speaker’s ruling on the no-confidence motion if it decided to not consider it a parliamentary proceeding.
“What if the votes are not enough but the speaker announces that the no-confidence motion has succeeded?” Justice Mandokhail asked. “What will happen then?
“These may be parliamentary issues but the court cannot monitor the parliament.” The lawyer contended that the parliament should be given a chance to solve its issues itself.
The CJP observed that Zafar’s argument that the speaker’s ruling was protected even if it was wrong was interesting. “After the ruling, the NA was dissolved and fresh elections were announced,” the CJP noted, adding that “it was decided to go to the public.”
The CJP said that the lawyers of PML-N would be asked what the issue was in going to the public. Justice Ahsan then asked how someone’s rights were affected by going into elections. At this point, the CJP reiterated that the case concerned the violation of Article 95 of the Constitution.
“The SC can intervene wherever the Constitution is breached,” Justice Bandial said, but added that “we respect the sanctity of parliament.”
Suo motu notice
On Sunday, CJP Bandial had taken suo motu notice of the situation after the deputy speaker’s dismissal of the no-confidence motion against the premier, clubbing multiple petitions filed by various parties with it.
After a brief hearing, a written order was issued which said the court would like to “examine whether such an action (dismissal of the no-trust motion on the basis of Article 5) is protected by the ouster (removal from the court’s jurisdiction) contained in Article 69 of the Constitution.”
Article 69 of the Constitution essentially restricts the court’s jurisdiction to exercise authority on a member or officer of parliament with respect to the functions of regulating parliamentary proceedings or conducting business.
“No officer or member of Majlis-i-Shoora (parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-i-Shoora, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers,” clause two of the Article reads.
The court had also ordered all state functionaries and authorities — as well as political parties — to refrain from taking any advantage of the current situation and stay strictly within the confines of the Constitution.
Dismissal of no-trust motion
The weeks-long political turmoil in the country reached its climax on April 3 after the NA Deputy Speaker Qasim Suri prorogued a much-awaited session of the lower house of parliament without allowing voting on a no-trust motion against PM Imran.
Suri, who was chairing the session, dismissed the motion in a shock move, terming it against Article 5 of the Constitution.
At the outset of the session, PTI’s Fawad Chaudhry took the floor and referred to the clause, reiterating the premier’s earlier claims that a foreign conspiracy was behind the move to oust the government.
“On March 7, our official ambassador was invited to a meeting attended by the representatives of other countries. The meeting was told that a motion against PM Imran was being presented,” he said, noting that this occurred a day before the opposition formally filed the no-trust move.
“We were told that relations with Pakistan were dependent on the success of the no-confidence motion. We were told that if the motion fails, then Pakistan’s path would be very difficult. This is an operation for a regime change by a foreign government,” he alleged.
The minister questioned how this could be allowed and called on the deputy speaker to decide the constitutionality of the no-trust move.
At that, Suri noted that the motion, which was presented on March 8, should be in accordance with the law and the Constitution. “No foreign power shall be allowed to topple an elected government through a conspiracy,” he said, adding that the points raised by the minister were “valid”.
He dismissed the motion, ruling that it was “contradictory” to the law, the Constitution and the rules.
Dissolution of NA
Within minutes after the NA sitting, PM Imran, in an address to the nation, said he had advised the president to “dissolve assemblies”.
He also congratulated the nation for the no-trust motion being dismissed, saying the deputy speaker had “rejected the attempt of changing the regime [and] the foreign conspiracy”.
The premier further said he had written to the president with advice to dissolve the assemblies, adding that the democrats should go to the public and elections should be held so the people could decide who they wanted in power.
“Prepare for elections. No corrupt forces will decide what the future of the country will be. When the assemblies will be dissolved, the procedure for the next elections and the caretaker government will begin,” he added.
Subsequently, President Alvi dissolved the NA under Article 58 of the Constitution.
Later in the evening, the Cabinet Division issued a notification, declaring that Imran Khan ceased to hold the prime minister’s office with immediate effect. “Consequent upon dissolution of the National Assembly by the president of Pakistan, in terms of Article 58(1) read with Article 48(1) of the Constitution of the Islamic Republic of Pakistan… Mr Imran Ahmad Khan Niazi ceases to hold the office of prime minister of Pakistan, with immediate effect,” it read.
However, later, the president issued a notification allowing him to continue as the prime minister.