suo-motu notice on Constitutional Crisis

Where are minutes of NSC meeting? CJP asks Babar Awan

The only remedy available is election: Ali Zafar

| CJP Umar Ata Bandial says SC can intervene when there is a violation of Constitution | Asks can Speaker give ruling without presenting facts | Justice Mandokhail asks if PM is unaware
who is involved in conspiracy then how he made key decisions

ISLAMABAD   -  The Supreme Court of Pakistan Wednesday said that it would deliver a judgment which would be in the interest of the nation and binding on everyone.

A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Mohammad Ali Mazhar, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, conducted hearing of the suo-motu notice taken by the CJP on the Deputy Speaker’s ruling on no-confidence motion.

During the hearing, Justice Jamal Khan Mandokhail remarked that they would pass a judgment that would be in the interest of the nation and binding on everyone.

Barrister Syed Ali Zafar, appearing on behalf of the President Dr Arif Alvi, adopted the stance that in view of the constitutional crisis, the best and the only solution lies with the ultimate sovereign i.e. which are the people of Pakistan. The only remedy available is election. He submitted that since the appeal has been made to the people of Pakistan and elections are to take place in 90 days then as per the established practice and prudence established by the courts, courts do not and should not interfere at this stage and let the people decide.

The Chief Justice asked from the counsel that you mean to say that the constitutional crisis can be resolved by going to the elections. He said if the opposition has any grouse they should go to people, adding, but there is an element of trickery.

He said that the dissolution of 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).

Ali Zafar said that the petitioners have challenged the ruling of the Deputy Speaker National Assembly and asked the apex court to examine the validity of the ruling. He said that the possible direction to the Speaker to hold the no-confidence vote, in his opinion, will encroach upon the jurisdiction of the Parliament.

At this juncture, Justice Bandial questioned that though it is not allowed [examine the parliament proceeding], but then there is constitutional violation and in Article 95 the procedure has been prescribed. He said that the limit is crossed when the constitutional provision is violated. The privileges are under the Rules, but there are obligations under the constitution, if the obligation is violated then the court can look at it.

Ali Zafar contended that the concept of trichotomy of powers/separation of powers between legislature, judiciary and executive is well-enshrined in our Constitution under which each organ has its specific role.

The counsel also contended that the Parliament has certain privileges under the procedures – the fundamental and the foremost privileges being that the 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/business are justiciable. It is also a part of Parliamentary privileges that no officer, including the Deputy Speaker, is subject to jurisdiction of Courts in respect of Parliamentary privileges/proceedings.

Ali Zafar cited the judgments of Pakistani courts; the crux of them is that any decisions taken during and within in the parliamentary proceedings/business of Parliament are not justiciable. It is only if a proceeding is outside the scope of proceedings in parliament that the court can examine.

He stated that the vote of confidence is clearly a matter of proceedings in National Assembly and any ruling passed by the Speaker or Deputy Speaker in respect thereof or during the same are not justiciable.

Justice Bandial remarked that Article 69 is ok but something has happened is unprecedented. He also said that the resolution for no-confidence vote was likely to be succeeded, which has the backing of the constitutional provision but at the last minute it was scuttled. He further said that if today it is permitted, then what SCBA President has cited the example of Hitler Nazis party remain in power.

The Chief Justice asked that whether the Speaker has power to give ruling on point of order which was not included in the agenda item of that day of Parliament proceeding. He said that Deputy Speaker Qasim Suri without giving the reasons rejected the resolution and whether the Speaker can ignore the mandate of Article 95 of Constitution.

Barrister Zafar urged the court to let parliament solve its issues on its own. Justice Munib asked that is the election of the PM part of parliamentary proceedings. The counsel replied that as per Article 91, it was a part of parliamentary proceedings.

Justice Bandial said that the lawyer made an “interesting observation” that the false ruling of the speaker was also immune from the scrutiny of the court. He added that the elections were announced after the ruling of the speaker and it was said that they would go to the people for polls. The CJ said that they would ask from the lawyer of N-League why they were opposing going to people [for elections].

Justice Mandokhail said that can the court ask from the premier and the president for reasons behind the dissolution of the assembly. The lawyer said that it was not necessary to tell the reasons.

The CJP said that the case was a violation of Article 95 and the SC could intervene when there was a violation of the constitution. He added, “We respect the sanctity of parliament.” Justice Ahsan asked that is the abrogation of the constitution also protected.

Justice Mandokhail said that the procedure regarding the no-confidence motion and the defectors was enshrined in the constitution. The judge added that as per the lawyer’s argument the majority in the house and the ruling of the speaker were two different things. He asked that can the prime minister remain in power after losing the majority.

Justice Bandial said that in the current case, the prime minister appealed to the nation by announcing elections which was not a bad thing. He, however, added that the speaker’s ruling was unprecedented and if not undone it would have negative impacts in the future.

Earlier, Babar Awan, representing Pakistan Tehreek-e-Insaf, informed that three Pakistani diplomats in Washington, including Head of Mission, Deputy Head of the Embassy and Defence Attaché, met with the USA Assistant Secretary. They conveyed the US concern against Pakistan to Foreign Office in Islamabad. The cipher was sent to Foreign Office on March 07, 2022. The cipher was deciphered in FO then it came to know that conspiracy was hatched against the Prime Minister Imran Khan to topple his government.

When Babar Awan was giving details, the Attorney General came to the podium and said that the issue is related to the PM or the State and, therefore, it should not come from the counsel of the party. The counsel then asked the court to constitute an inquiry commission as the PM wanted through probe on the letter. At that Justice Jamal Khan Mandokhail said that when the PM is unaware who is involved in the conspiracy then how he made important decisions.

The Chief Justice rejected the perception that the apex court is delaying the judgment on suo-motu notice. He said that unfortunately, yesterday adverse comments were made that the court is delaying the case. He added that they have to hear all the parties and without hearing the other side cannot pass the ex-parte judgment.

Chief Justice Bandial also asked the lawyer for the PTI government, Babar Awan, about the minutes of the recent meeting of the National Security Committee which had discussed a letter purportedly showing evidence of a foreign conspiracy to oust the PTI-led government.

During the hearing, Justice Bandial questioned the basis on which the speaker issued the ruling. He observed that, so far, the ruling consisted of accusations not findings. “Can the speaker announce such a ruling without presenting the facts,” he asked, adding that this was the constitutional point on which the court had to make a decision. He also asked Awan to inform the court whether the speaker could issue a ruling that was not on the day’s agenda by bypassing Article 95. He told the PTI counsel to defend the ruling with “solid” evidence.

“Where are the minutes of the NSC meeting?” he asked Awan, also inquiring from him about the basis on which Suri exercised his authority. Justice Bandial added that the court wanted to focus on the legitimacy of the ruling and Article 69. The CJ said that the court wanted to conclude the case early so it was extending the hearing. AGP and Naeem Bukhari both requested the court that they would give their arguments on Thursday. Therefore, the SC bench deferred the hearing in this matter till Thursday (today) for the further proceedings.

SC rejects PTI counsel’s plea for in-camera hearing on lettergate

Also, the Supreme Court Wednesday turned down the plea of Pakistan Tehreek-e-Insaf’s (PTI) counsel Babar Awan for an in-camera hearing on the Lettergate issue.

The PTI’s counsel had asked the five-member larger SC bench, headed by Chief Justice of Pakistan Umar Ata Bandial, whether an in-camera hearing was possible as his client wanted to keep the Foreign Office’s briefing before the court. The CJP, however, rejected Awan’s request, observing that the court was not currently asking for the letter.

The bench comprising Justic Ijaz Ul Ahsan, Justice Mohammad Ali Mazhar, Justice Munib Akhtar and Justice Jamal Khan Mandokhail was heard the suo-motu notice case on the ruling by the National Assembly (NA) deputy speaker on the vote of no-confidence motion against Prime Minister Imran Khan.