April 6, 2022
ISLAMABAD – Chief Justice of Pakistan (CJP) Umar Ata Bandial said on Tuesday that the Supreme Court did not interfere in matters of state and foreign policy and would only determine the legality of National Assembly (NA) Deputy Speaker Qasim Suri’s ruling on a no-trust motion against Prime Minister Imran Khan.
He said this while hearing arguments from PML-N’s counsel Makhdoom Ali Khan on the dismissal of a no-confidence motion against the prime minister by the NA deputy speaker, who had linked the motion to a “foreign conspiracy” to topple the PTI government and ruled that the motion was contradictory to Article 5 of the Constitution.
Subsequently, the CJP had taken suo motu notice of the matter, following which a larger bench was formed to hear the case.
The five-member bench is headed by the CJP and includes Justice Ijazul Ahsan, Justice Mohammad Ali Mazhar, Justice Munib Akhtar and Justice Jamal Khan Mandokhail.
At today’s hearing, when the CJP said the court would not interfere in policy matters and would focus on the deputy speaker’s ruling, the PML-N’s counsel proposed that the apex court may seek an “in-camera briefing about the foreign conspiracy from the intelligence chief”.
“Right now we are looking at the law and Constitution,” the CJP replied, adding that all the respondents would be told to focus on this matter at the moment.
“We prefer that a decision be taken on this matter only,” CJP Bandial said. “We want to see if the court can review the ruling of the deputy speaker.”
The court, he added, didn’t interfere in the state or foreign policy. “We don’t want to indulge in policy matters.”
Justice Ahsan, too, said that the court only wanted to see constitutional matters for now.
The PML-N’s counsel, however, argued that the court could judicially review an illegal and unconstitutional move.
Here, Justice Akhtar said the NA and provincial assembly were masters of their respective houses.
The distribution of powers was also enshrined in the constitution, the judge added.
“We have referred to six court verdicts that clarify the jurisdiction of Article 69,” Khan said adding that the speaker confirmed the deputy speaker’s ruling. He also questioned the transfer of power from the speaker to the deputy speaker.
Here, Justice Ahsan said Naeem Bukhari, the counsel for NA Speaker Asad Qaiser, would aid the court on the matter.
The court adjourned the hearing till 11:30am on Wednesday (tomorrow).
SC seeks record of no-trust proceedings
Earlier at today’s hearing, the SC sought the record of NA proceedings conducted on the no-confidence motion filed against interim PM Imran
At the outset of today’s hearing, PPP Senator Raza Rabbani noted how, according to media reports, the Election Commission of Pakistan (ECP) had said it was not possible to hold general elections within three months. However, the ECP has denied issuing any statement concerning elections.
He also said that the court had to examine the extent of the “immunity” of parliamentary proceedings. “Whatever has happened can only be termed as civilian martial law,” he said.
“The no-confidence motion can’t be dismissed without voting on it,” he said, citing Article 95 of the Constitution.
Rabbani also said that a deliberate attempt was made to construct a narrative against the no-trust move while a foreign conspiracy was also touted. He said that the NA session held on March 21 was adjourned after offering prayers for a deceased lawmaker, adding that this had not happened in the past.
The senator said that Fawad Chaudhry, speaking on a point of order during Sunday’s session, had talked about the letter and the foreign conspiracy even though it was not on the day’s agenda.
He also maintained that it was wrong of Suri to term opposition lawmakers as traitors without providing any evidence. A no-confidence motion was also submitted against Asad Qaiser which limits the power of the speaker, he said, adding that assemblies could not be dissolved during the no-confidence process.
He urged the court to dismiss the deputy speaker’s ruling and to restore the National Assembly, adding that the minutes of the National Security Committee and the ‘threat letter’ should also be presented.
After Rabbani, PML-N’s counsel Makhdoom Ali Khan presented his arguments. He began by stating that the no-confidence motion was submitted to the NA with the signatures of 152 lawmakers while 161 had voted in favour of tabling it. “After that, proceedings were adjourned till March 31.”
As per the rules, the counsel pointed out, a debate on the no-trust move was supposed to be conducted on March 31. “But a debate was not held,” he said, adding that voting was also not conducted on April 3.
He noted that according to the no-confidence motion, the prime minister had lost the confidence of the majority of the National Assembly. “Shehbaz Sharif had submitted the motion as per the rules of business,” he said, adding that the NA session was adjourned till April 3 without conducting any proceedings, he said.
The PML-N’s counsel also said that the deputy speaker did not give the opposition a chance to speak during the session held on April 3 and gave the floor to the former information minister.
At that, Justice Akhtar said that the process of the no-confidence motion was underlined in the rules of procedure, not the Constitution. However, Khan argued that rules were formed on the basis of the Constitution.
Continuing his argument, the PML-N lawyer said that the no-confidence motion can’t be dismissed by the speaker once it is tabled in the NA.
At one point, the CJP asked whether a debate was held on the no-confidence move, to which the PML-N lawyer replied that it was not.
Justice Bandial also asked whether a majority of lawmakers were present in Parliament when the no-confidence resolution against the prime minister was tabled, noting that it required the support of 20pc of the lawmakers.
He observed that constitutional provisions cannot be trampled through rules.
Justice Mandokhail added that the real question was whether the deputy speaker’s ruling was legal or illegal. “The real issue is to examine the constitutional status of the ruling,” he said.
He also questioned whether “illegal factors” in the no-confidence motion could be investigated, to which the PML-N lawyer replied that the apex court had the right to do so.
Here, Justice Akhtar remarked, “How can we give an opinion on the Constitutional rights of the speaker over minor flaws.”
“Do you want to open a new door of litigations? If this happens, application against provincial assemblies will start coming to high courts.”
Meanwhile, Justice Mandokhel asked if the deputy speaker could use powers without taking permission from the speaker. “Is deputy speaker using the powers of speaker Constitutional or not?
The PML-N counsel replied that it was was unconstitutional for the deputy speaker to exercise his powers without the permission of the speaker. “The deputy speaker, while reading aloud the ruling, had taken the name of the speaker too,” he added.
He said the deputy speaker’s ruling “truly and legally falls under the definition of a mala fide” decision.
Objection over former CJP Gulzar Ahmed’s nomination for caretaker PM
The PML-N’s counsel also raised objection to interim PM Imran’s nomination of former CJP Gulzar Ahmed for the caretaker prime minister’s role.
Nominating a former CJP as the prime minister was not a good precedent, he contended.
Moreover, he urged the court to hear out the PML-N on the matter of the Punjab chief minister’s election.
To this, the CJP said the matter was scheduled to be taken up tomorrow.
Presenting his arguments, Sindh Bar Council’s attorney Salahuddin said the SC had complete authority to review the ruling in light of the Constitution.
Similarly, Shehbaz Khosa, the counsel for PPP secretary general Nayyar Bukhari, said the SC not reviewing the deputy speaker’s ruling would benefit “non-democratic forces”.
In his remarks after the arguments, the CJP said, “We cannot determine the working of parliament.”
The CJP sought a copy of the deputy speaker’s order dated March 31 and sought details of the types of motions that the NA could approve.
AGP seeks permission to speak
After the completion of arguments by petitioners’ counsels, lawyer Babar Awan, who is representing the PTI, sought the court’s permission to present his arguments tomorrow.
“I have to present detailed arguments,” he said.
Ali Zafar, the counsel for President Arif Alvi, also said he needed a few hours to present his arguments.
Attorney General for Pakistan (AGP) Khalid Jawed Khan, too, requested the court to give him a chance to speak on the matter on Thursday after the completion of arguments by all counsels.
At that, Justice Ahsan said, “There is no prime minister for you to represent [at present].”
The AGP replied that this was “the most important case of his life and one of national significance”. He said he wanted to assist the court.
“I will present arguments on constitutional points,” he said, adding that the SC was supposed to hear the case for a month.
The CJP, however, said the court wanted to conclude the case soon.
“The [formation of a] caretaker setup has been stalled because of the case”, he noted, adding that the bench would try to issue a ruling on the matter tomorrow.
CJP wonders why opposition skipped parliamentary committee meeting
During Monday’s hearing, Justice Bandial had observed that it seemed that the question of illegality in the filing of the no-trust motion could have been addressed earlier, but once the leave of the house was granted, then the stage of raising objections had passed.
Justice Akhtar, meanwhile, had questioned the deputy speaker’s constitutional authority to pass such a ruling. “I don’t think the deputy speaker had the authority to pass such a ruling,” he had said, adding that only the speaker could do so.
The CJP had also wondered why opposition members failed to attend the meeting of the parliamentary committee on national security, during which contents of the ‘threat letter’ were shared with parliamentarians.
“This needs to be answered by all political parties,” he had said, terming the parliamentary meeting important.
Earlier, Naek had requested the CJP that, in view of the grave emergency and public importance, the court should consider constituting a full court consisting of all judges, as had been done in the past.
At this, the CJP had said that if the counsel had no confidence in any member of the bench, the court would rise, adding that the full court was a luxury and during the last two years “we have suffered since 10,000 cases accumulated because of 63 hearings in the Justice Qazi Faez Isa case by a 10-judge bench”.
The CJP had also remarked that the court would issue a “reasonable order on the issue”, but the hearing was adjourned after Farooq H. Naek, the counsel of PPP and other opposition parties, presented his arguments.
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 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.
It further directed the interior and defence secretaries to brief it on the law and order situation.
President Alvi, the Supreme Court Bar Association and all political parties have been made respondents in the case.
The apex court rejected a request to suspend the deputy speaker’s ruling and issued a notice to Attorney General for Pakistan Khalid Khalid Jawed Khan to discuss the “constitutionality of the [deputy speaker’s] decision” to dismiss the no-trust motion on the basis of Article 5 of the Constitution.
Article 5 obliges every citizen to be obedient to the Constitution and law and says that “loyalty to the State is the basic duty of every citizen”.
In its written order, the court further observed that “prima facie, there is neither a finding recorded in the matter nor was a hearing granted to the affected party” as far as the deputy speaker’s ruling is concerned.
However, the deputy speaker, in his detailed four-page ruling issued by the National Assembly Secretariat on Sunday evening, declared a “foreign state was interfering in the internal affairs of Pakistan and Prime Minister Imran Khan was its primary target”.
Suri said he could not give details about the foreign intentions and its links to the no-confidence motion, but they could be provided in an in-camera session. The deputy speaker also based his ruling on the recent meetings of the National Security Committee, federal cabinet and Parliamentary Committee on National Security that were briefed on the ‘threat’.
A joint petition, filed by the PPP, PML-N and JUI-F through Farooq H. Naek, Azam Nazir Tarar and Kamran Murtaza, has also requested the apex court to declare the ruling of the deputy speaker, as well as the advice of the prime minister to the president to dissolve the National Assembly and the subsequent dissolution of the assembly as illegal and unconstitutional.
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, Pakistan Tehreek-i-Insaf’s (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:
“Imran Ahmad Khan Niazi, shall continue as Prime Minister till the appointment of caretaker Prime Minister under Article 224 A (4) of the Constitution of the Islamic Republic of Pakistan.”