Where are NSC meeting's minutes? CJP asks Babar Awan

Published April 6, 2022
Chief Justice of Pakistan Umar Ata Bandial. — Photo via SC website/File
Chief Justice of Pakistan Umar Ata Bandial. — Photo via SC website/File

Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday 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.

The CJP made the inquiry as a five-member bench, comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail, took up a suo motu case on the events of April 3 when National Assembly (NA) Deputy Speaker Qasim Shah Suri dismissed the no-confidence motion against the prime minister and President Dr Alvi dissolved the NA on the premier's advice.

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.

'SC can't review speaker's ruling'

After Awan, President Arif Alvi's counsel, Ali Zafar, began his arguments, insisting that any direction from the court on the matter of the deputy speaker's ruling would exceed its jurisdiction.

Zafar pointed out that the case under discussion concerned the interpretation of Articles 95 and 69. "There are six rules for interpreting the provisions of the Constitution. It should be understood in accordance with its true spirit rather than just words."

He said just like judicial proceedings could not be debated in the parliament, courts, too, could not interfere in the proceedings of the parliament.

"Unfortunately, the petitioners want the case to be heard as an appeal against the ruling of the deputy speaker," he said, adding that the case was in fact an interference in the prerogatives of the NA.

Zafar explained that even if 10 MNAs were not allowed to vote and were expelled from the house, such a move could not be challenged by anyone.

Here, the CJP said: "But they [opposition] are saying that a new speaker should come and voting should be held again."

"To approach the court against the ruling of the deputy speaker is interference in the parliament," Zafar said, adding that giving instructions to the speaker was equivalent to giving instructions to the parliament, which was unconstitutional.

To this, CJP Bandial asked if interference was not possible even if the Constitution was violated.

"I will give my arguments on what is constitutional and what isn't later," Zafar replied.

The lawyer recalled that Justice Maqbool Baqir, on his retirement, spoke of balance in institutions.

"Only mutual respect can create balance in institutions."

He went on to say that if the house was not satisfied with the speaker, it could opt for a no-trust motion.

"But if the speaker's ruling is reviewed, every decision taken by him would be brought to court," Zafar argued, reiterating that the court had no power to review the speaker's ruling.

At this point, Justice Ahsan asked if the court could review the prime minister's advice to dissolve the NA.

Zafar told the court the president was bound to follow the prime minister's request, adding that it was not necessary for the prime minister to explain the reasons in his request to dissolve the assembly.

The chief justice deemed the case a "violation of Article 95 of the Constitution" and said the SC could intervene in instances where the Constitution was violated. "[We] respect the sanctity of the parliament," he added.

Justice Mandokhail, meanwhile, said the procedure regarding the no-confidence motion and dissident members was a part of the Constitution. "As per your argument, the parliament's majority is one side and the speaker's ruling is on the other."

"Can the prime minister continue to remain a prime minister even after losing the majority [support]?" he inquired.

Justice Bandial remarked that while Article 69 of the Constitution had its place, there was "no precedent for what has happened."

"On the last day, a constitutional process was stopped through a ruling. If this is allowed to happen then it could have very negative effects," Justice Bandial said.

Zafar argued that the parliament should be allowed to solve its own problems. "The court should leave the matter to the people instead of interfering," he said, to which Justice Ahsan asked what would happen if the parliament could not solve its problems itself.

The president's counsel quoted the 2012 example of the apex court ordering the then prime minister Yousuf Raza Gilani to write a letter to Swiss authorities in the the National Reconciliation Ordinance (NRO) case, recalling that when the court's orders were not followed, a reference was sent to the speaker that was rejected.

"The court ruled that the speaker's job was to act on the decision," he said, adding that only those rulings of the speaker can be challenged that are not part of parliamentary proceedings.

The chief justice said the court wanted to hear Attorney General for Pakistan (AGP) Khalid Jawed Khan's arguments and would also like to listen to Naeem Bukhari — the counsel for NA Speaker Asad Qaiser.

The AGP said most of his arguments were on legal points so he would present them tomorrow. Bukhari, too, told the court that he would present his arguments tomorrow.

The court subsequently adjourned the hearing till 9:30am tomorrow (Thursday).

'Opposition wants court to issue order in its favour'

Taking the rostrum during today's hearing, PTI's counsel Babar Awan asked whether the issue of horse trading was brought up by anyone.

"The court was informed that the deputy speaker's ruling is malicious and unconstitutional but what occurred at Sindh House and Lahore's Avari Hotel, could it be ignored?"

He was referring to the stay of PTI dissidents staying there amidst allegations of horse-trading. "No one said a word about Article 63-A," Awan said.

He said that the opposition was claiming to "save parliamentary democracy" while PML-N's Shehbaz Sharif had demanded the formation of a judicial commission to probe the matter.

He claimed that the opposition wanted the court to issue a short order in its favour immediately, adding that they wanted to set aside the mention of the National Security Committee in the deputy speaker's ruling.

At one point, the CJP asked whether the speaker had the power to issue a ruling by deviating from the order of the day. He also questioned whether it was possible to set aside a constitutional process.

"Can the speaker keep constitutional requirements aside," Justice Bandial inquired, adding that the court would not take rumours and allegations into account. He also told Awan to refrain from giving long-winded speeches, directing him to inform the court about the basis on which the speaker gave the ruling.

Continuing, Awan said that a meeting took place between Pakistani officials and a diplomat from another country, the "cipher" of which arrived on March 7. The head of mission and the defence attache were also present, he said.

The court inquired when the meeting had taken place, noting that the PTI counsel was not aware of the date. "The ruling is based on accusations not facts," the CJP observed. He repeated Awan's words and said that the cipher came and was decoded by the Foreign Office, asking him to continue.

However, the AGP interjected and said that such facts should come from the government and not a political party as they concerned foreign affairs.

"We don't want to interfere in foreign affairs," the CJP said as the AGP told the PTI lawyer to read from the ruling.

Awan said that four things were underlined in the letter, adding that more details could not be given due to the Official Secrets Act.

After seeing the letter, the FO met with the prime minister and the foreign minister, he said. "In the cabinet meeting, the DG concerned gave a briefing on the letter," Awan said, asking whether an in-camera hearing was possible.

"I want to keep the FO's briefing in front of the court," he said. However, the CJP replied that the court was currently not asking for the letter, subsequently rejecting Awan's request.

The PTI lawyer went on to say that Pakistan issued a demarche to the country who allegedly sent the threat. He also noted that Inter-Services Public Relations (ISPR) Director General Maj Gen Babar Iftikhar, in a recent interview, had said that the army's stance was the same as the NSC.

At one point, Justice Mandokhail remarked that under the Constitution loyalty to the state was compulsory. "But the question is what should be done with MNAs who are not loyal with the state," he observed.

Awan said that he belonged to a political party where 22 lawmakers had been "bought". "Forty lawmakers from Punjab were holed up in a hotel," he said, requesting the court to also hear the case of party dissidents with this case.

"Parliament teaches people honesty but this is what has happened in parliament," he said.

Justice Mandokhail observed that political parties should think for themselves in order to prevent floor crossing. "Why don't political parties self-anaylse? The same faces are sometimes seen at one place and then at another," he said.

He added that the judges had taken an oath to protect the Constitution. "We will take a decision that is in favour of the nation," he added, at which point Awan concluded his arguments.

Justice Akhtar observed that if the court reviewed every ruling of the parliament "there would be a disaster".

"According to the petitioners, Article 95 has been violated," CJP Bandial said. "And they want the parliamentary proceedings to be reviewed."

The CJP said that the court fully respected the constitutional division of powers.

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."

Meanwhile, Justice Ahsan asked whether violating the Constitution too had protection under Article 69.

Justice Mandokhail said that the Constitution had given a procedure for the no-confidence motion and how to deal with deviant members.

When Justice Akhtar asked if the PM could be removed even if there was no majority in the parliament, Zafar replied that things could be perceived in several ways.

"According to your argument, the majority of the entire parliament is on one side and the power of the speaker is on the other side," Justice Ahsan said in response.

Meanwhile, the CJP said that first of all, the court would look at Pakistan's judicial precedents.

"If there is ambiguity, then we will look at international precedents."

'Will try to wrap up case today'

During today's hearing, the government's lawyers presented their arguments in the case.

The courtroom was packed at the start of the hearing with politicians from both the government and the opposition in attendance.

At the outset of the hearing, the lawyer for the PML-N, Azam Nazir Tarar, noted that the Punjab Assembly deputy speaker had summoned a session for today to elect the province's new chief minister.

He also pointed out that the assembly staff were not following the directives issued by the deputy speaker and expressed concerns regarding the election for the province's chief minister.

"We are hearing a very important case," the chief justice said, adding that the court would try to wrap up the case today. He also said that the court was coming under fire for not deciding the matter.

He told political parties to solve the issue concerning the Punjab Assembly on a political basis, asking how the apex court could make a unilateral decision.

PML-N Advocate Azam Nazeer Tarar claimed that the provincial government had lost its majority in the parliament, which is why the vote was not being allowed to take place.

At this, the chief justice remarked that if the system was not cooperating then constitutional officeholders could use their rights. "The deputy speaker can call the session in Bagh-i-Jinnah if he wants," he said.

The counsel for the PA secretary explained that the session was postponed till April 16 due to vandalism in the assembly building. He said the deputy speaker had been missing since morning while he deemed the notification summoning the PA session tonight as "fake".

The chief justice remarked that what was happening in the Punjab Assembly was an "ideal situation to approach the people" and that the court could not give a ruling on it in haste.

He said the court would hear the case about the PA tomorrow.

Opposition completes arguments

During yesterday's hearing, CJP Bandial had said that the apex court would not interfere in matter of the state and foreign policy and would only determine the legality of the deputy speaker's ruling.

His remarks had come after PML-N lawyer Makhdoom Ali Khan suggested that the court hold an "in-camera briefing about the foreign conspiracy from the intelligence chief". Khan's proposal 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.

"Right now we are looking at the law and Constitution," the CJP had replied, adding that all the respondents would be told to focus on this matter at the moment and subsequently sought records of NA proceedings on the no-trust motion.

Meanwhile, PPP Senator Raza Rabbani described the abrupt prorogation and dissolution of the national assembly as "civilian coup in hybrid system" during his arguments. Subsequently, he had demanded the restoration of status quo as before the April 3 NA session.

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.

Rabbani had 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 said that independent proceedings should be initiated, which may include the formation of a judicial commission, to examine the veracity of the allegations.

Makhdoom Ali Khan, who was representing Shehbaz Sharif, 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 protects the speaker’s actions from being challenged in court, the counsel for Shehbaz 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?

‘Suggesting ex-CJP as caretaker attempt to influence SC’

At Tuesday's hearing, former opposition leader Shehbaz Sharif’s lawyer 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”.

To this, the CJP replied: “Yes, you are right.”

On Monday, interim Prime Minister Imran Khan had nominated ex-CJP Gulzar Ahmed for the office of the caretaker PM.

The former CJP's nomination followed a letter written by President Alvi to the prime minister and Shehbaz to propose names of suitable persons for appointment as caretaker premier under Article 224-A(1) of the Constitution.

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, 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."

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