New Delhi: Pakistan’s Supreme Court Monday once again deferred its hearing on the ongoing political and constitutional crisis in the country’s parliament. The hearing was meant to ascertain whether Deputy Speaker Qasim Khan Suri’s decision to block a no-confidence vote in parliament against Prime Minister Imran Khan, and the subsequent dissolution of the National Assembly, was unconstitutional or not.
On Sunday, too, the top court was adjourned after an initial hearing in which it took suo motu cognisance. Meanwhile, the Opposition Sunday continued the assembly proceedings despite its dissolution and completed the voting process on the no-trust motion, declaring it successful with 197 votes.
Now denotified as prime minister, Imran Khan has nominated former Chief Justice Gulzar Ahmed as ‘caretaker Prime Minister’ — a move that invites even more questions.
ThePrint spoke to experts who explained how this is yet another example of how matters on the floor of the House often appear to end up in the lap of the Pakistan judiciary, which has in the past invoked the “doctrine of necessity” to rubber-stamp military coups in the country.
The Experts also expressed concerns over the constitutionality of the deputy speaker’s actions, the Supreme Court’s repeated delays of the hearing, and the kind of benches constituted for this case so far.
‘Army and judiciary have always been hand in glove’
In 1958, the then Pakistan Chief Justice Muhammad Munir famously used the “doctrine of necessity” and “test of efficacy” to justify allowing the military to take over the country, laying a dangerous precedent for future courts and verdicts as well as the nature of the judiciary in Pakistan in years to come.
As an essay in The Yale Review of International Studies once put it: “When General Zia-ul-Haq and Pervez Musharraf staged military coups, the court acted as a tool of the state, establishing legality for the extra-judicial actions but, in turn, weakening its own credibility.”
Speaking to ThePrint, Pakistani columnist and human rights defender Gul Bukhari said Pakistan’s Army and judiciary have always been “hand in glove”.
“The Army has always manipulated political processes via the judiciary. Look at how Nawaz Sharif was ousted. Even after 58(2)(B) was taken out of the Constitution — in which the President had the power to make the government go home — we continue to see this. Today also, this should have been resolved in the House but it has gone once again to the Supreme Court,” she said.
Bukhari also expressed concern over the repeated delays in the hearing.
“What worried me was when the Supreme Court decided to adjourn the hearing on whether to reject the trust vote till Monday. It was a sign that they are up to no good. Any serious, professional, democratic, Constitution-respecting judge would have opened up the court immediately and ruled,” she said.
Islamabad-based barrister Zainab Janjua also said that further delays in proceedings could invite more pressure on the Supreme Court to “undo events”.
“The more they [Supreme Court] delay, the more rapid changes would occur. There will be added pressure for the court to undo events and these proceedings may become infructuous,” she said.
Bukhari, meanwhile, also asked why a three-member bench was constituted for the initial hearing Sunday instead of a full bench.
On Monday, a five-member bench, headed by Chief Justice Umar Ata Bandial, heard the case. Justices Ijazul Ahsan, Mohammad Ali Mazhar, Munib Akhtar, and Jamal Khan Mandokhail were the other judges on the bench.
Ayesha Siddiqa, senior fellow at the Department of War Studies in King’s College London further questioned why critical names like Justice Mansoor Ali Shah and Justice Qazi Faez Isa were not included in Sunday’s or Monday’s benches. “All five judges on the bench Monday appeared to be pro-Army,” she added.
Is there a constitutional loophole?
Experts explained that there is a reason why Imran Khan advised the President to dissolve the National Assembly only after the deputy speaker dismissed the vote of no-confidence.
Article 58 (1) of the Pakistan Constitution allows the President to dissolve the National Assembly if so advised by the Prime Minister, but it’s the explanation for this that may provide a loophole.
The explanation states: “Reference in this Article to ‘Prime Minister’ shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a note of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly.”
In short, a Prime Minister cannot advise the President to dissolve the National Assembly if a vote of no-confidence against him/her has been brought in the Assembly and not been voted upon.
“The government has probably tried to get away with this bar by waiting until the time the Deputy Speaker dismissed the no-trust vote, so that they could say that the motion was not pending anymore,” said Janjua.
That said, it has been widely interpreted among legal circles in Pakistan that a vote must be held; it cannot simply be dismissed, she added.
Did the deputy speaker violate Assembly rules?
According to experts, it is difficult to say whether the Supreme Court, and the specific bench constituted, will deem the deputy speaker’s actions as unconstitutional.
However, remarks by the Chief Justice and other judges during Monday’s hearing may provide some insight.
On Monday, Chief Justice Umar Ata Bandial said that even if the Speaker cites Article 5 of the Constitution — which pertains to loyalty to the state and obedience to the Constitution and law — the no-confidence motion cannot be rejected.
According to the National Assembly Rule 28, only the Speaker can issue a ruling, which prompted Justice Munib Akhtar to remark: “Prima facie, the deputy speaker used that power of the Speaker which he was not authorised.”
The reason the deputy speaker and not the Speaker took action last week was because the Opposition had brought in a no-confidence motion against the Speaker too. More so, if the deputy’s actions are deemed unconstitutional, it would have a “domino effect” on Imran Khan and the President’s actions.
Bukhari suggested that Imran Khan would not have taken such drastic measures if he did not have the backing of some figures in the military.
“Treason is punished by life imprisonment and the death penalty, but clearly Imran Khan would not have tread this path if he wasn’t given assurances. So, it makes one wonder — is there a faction of the Army that’s supporting Imran Khan?” she said.
There is speculation that Pakistan’s Supreme Court may not restore the National Assembly on grounds of “national interest”. There is a dangerous precedent for this: Federation of Pakistan vs Haji Saifullah.
As explained by Reema Omera, legal adviser, South Asia, International Commission of Jurists, in a Twitter thread, the court held that the dismissal of Mohammad Khan Junejo’s government by General Zia in May 1988 was unconstitutional but it did not restore the National Assembly.
6. Not only this, CJ Nasim Hasan Shah regretted his earlier decision and observed:
“I now think after having found the action of dissolution of the NA was not sustainable in law, the Court should not have denied the consequential relief and ought to have restored the Assembly..”
— Reema Omer (@reema_omer) April 3, 2022
The grounds for this were, she noted, that the dissolution was challenged very late; the petitioners were not affected parties; the political situation had changed; elections were scheduled soon; and that “national interest” lay in new elections, not restoration.
However, the then Chief Justice Nasim Hasan Shah, responsible for this verdict, had later “regretted” his decision, and noted that the court “should not have denied the consequential relief” and “ought to have restored the National Assembly”, Omera pointed out in her thread.
If Pakistan’s top court does not restore the Assembly, then that means elections will likely be held in the next three months. According to Siddiqa: “Holding the elections is important and necessary, but there must be an acknowledgement that Imran Khan’s government committed an illegal act.”
(Edited by Asavari Singh)
Source: The Print