• Shehbaz’s lawyer also suggests court receive intel briefing if opposition’s loyalty under question
• Justice Munib wonders whether case could open door for challenges against parliamentary proceedings
• Rabbani seeks restoration of status quo as before April 3 NA session

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial on Tuesday agreed with the contention of former opposition leader Shehbaz Sharif’s lawyer when the latter argued that the nomination of a former CJP for the post of caretaker prime minister was “not only a blatant attempt to influence the court, but also smacks of mala fide and is in very poor taste”.

At this, the chief justice who is heading a five-judge larger bench that is seized with the events of April 3 — including the deputy speaker’s ruling and the subsequent prorogation of the National Assembly without a vote on the no-confidence motion — simply observed: “Yes, you are right.”

Earlier, Makhdoom Ali Khan, appearing on behalf of Mr Sharif, asked the Supreme Court to seek an in-chamber briefing from the heads of the country’s premier intelligence agencies if the court had any doubts about the loyalties of opposition members.

The former opposition leader’s offer was made in the backdrop of the invocation of Article 5 by the deputy speaker while proroguing the house without holding a vote on the no-confidence resolution.

However, the court observed that it would not go into any probe on state or foreign policy and would rather confine itself to the legality and purported unconstitutionality of the situation arising out of the ruling of the deputy speaker.

“This is an onerous task for us to probe into policies,” the CJP observed.

On Tuesday, the petitioner’s side completed their arguments, while the government’s lawyers will open their defence today (Wednesday).

Pre-meditated move

The abrupt prorogation and dissolution of the national assembly was described by PPP Senator Raza Rabbani as a “civilian coup in hybrid system”.

He also requested the apex court to summon the original text of the purported ‘threatening’ cable and the minutes of the meeting of the National Security Committee that condemned it.

He argued that independent proceedings should be initiated, which may include the formation of a judicial commission, to examine the veracity of the allegations. Senator Rabbani also asked the court to order that status quo be restored as it was on April 3, 2022, before the sitting of the National Assembly.

He argued that on more than one occasion, when the house was in session, it was shown that the prime minister had lost the majority, adding that it was a matter of record that Imran Khan had said that he was given three options: face the vote of no-confidence, resign or hold early elections.

In order call early elections, a premeditated move with mala fide intent was made to unconstitutionally subvert the resolution under Article 95 to remove the bar placed by Article 58, whereby a prime minister – against whom a vote of no-confidence is pending – cannot dissolve the National Assembly, Senator Rabbani said.

As the edifice on which the resolution under Article 95 has been disposed of was unconstitutional and void, therefore, the advice tendered by the prime minister under Article 48, also had no legal effect.

Article 69 no bar

Makhdoom Ali Khan claimed that the deputy speaker’s April 3 ruling was “manifestly illegal and a constitutional violation of gravest kind”, rather than a simple procedural lapse. Therefore, he maintained that the Supreme Court had every right to intervene in the matter.

The counsel argued that if the court came to the conclusion that the ruling of the deputy speaker and the subsequent prorogation of the assembly was unconstitutional and illegal, then all consequential actions, including the advice to President Arif Alvi to dissolve the assembly and the continuation of the incumbent Imran Khan as interim prime minister, as well as his nomination for appointment of a care taker prime minister, would be equally unconstitutional.

The bar under Article 69 that protests the speaker’s actions from being challenged in court, the counsel for Mr Sharif argued, relates to procedural irregularities in parliamentary proceedings, adding that the apex court would invoke Article 54, which deals with the power of the speaker to summon and prorogue the assembly session, as a doctrine of condonation for procedural irregularities and not as a doctrine for legitimising constitutional wrongs.

Citing an example, the counsel argued that if a prime minister had no support left in the house except for the speaker, then Article 95 would become unworkable if he (the speaker) scuttles every move to remove the premier through a no-confidence motion.

“One can be the purest human being possible, but if he has no majority in the house, he cannot remain the prime minister,” the counsel argued.

During the hearing, Justice Munib Akhtar observed that if the argument of the counsel was accepted, it would open the doors to the courts and there would be a writ on minor illegalities of the house every other day, thus undermining the dichotomy of power. Is this the intent of the Constitution, Justice Akhtar wondered?

Assurances

On Tuesday, the Supreme Court also dictated an order highlighting the assurance held out by Punjab Advocate General Ahmed Awais that the proceedings of the Punjab Assembly would be conducted on Wednesday within the ambit of the law and the Constitution.

Attorney General for Pakistan Khalid Jawed Khan also assured the Supreme Court that he would be fair, and since it was a case of national importance, he was not bound by the instructions of the government alone.

“This will be my last case as AGP and I don’t want to be indicted by history,” he said.

Point of order

Arguing on behalf of the Sindh High Court Bar Association, Advocate Salahuddin Ahmed highlighted that on April 3, former law minister Fawad Chaudhry had drawn the attention of the deputy speaker towards the ‘threat letter’ on a point of order, when under the rules of the house, a point of order can only be taken on a question of enforcement of rules and to implement constitutional articles.

“It is not open-ended to raise any issue like Article 5. only to subvert the vote on the no trust motion,” he argued.

He emphasised that the courts always decide issues with an eye on history and another eye on the future.

When the case is taken up today (Wednesday), Dr Babar Awan, Senator Ali Zafar and Imtiaz Siddiqui will argue the government’s case.

Published in Dawn, April 6th, 2022

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