6th April 2022

By Hamid Riaz


ISLAMABAD

In Tuesday’s hearing of regarding the Deputy Speaker’s rejection of the no-confidence motion against Prime Minister Imran Khan under allegations of the motion being a foreign conspiracy, the Opposition’s counsel pleaded to the Supreme Court that provisions such as elections and the no-confidence vote are the heart of democracy, and to undermine them would be to undermine the parliamentary system of governance itself.

Concluding their arguments, the five-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial, directed the government to present its arguments in the case in today’s proceeding, which is expected to begin at 11:30 AM.

In yesterday’s hearing, Senator Mian Raza Rabbani representing the Pakistan Peoples Party (PPP) posited that the Election Commission of Pakistan has publicly stated that it is not logistically in a position to hold elections in the coming three months, and that if the Federal Government or the Prime Minister were to have their way and hold elections regardless, it may create another constitutional crisis.

Senator Rabbani then reiterated his co-counsel Farooq H. Naek’s arguments from the day prior on the apex court’s directions to clarify the Opposition Alliance’s stance. He provided that the rejection of the no-confidence motion was malafide, as the details of the letter under which an alleged foreign conspiracy to topple the government came to light were ever made public, and what contents have come to light are doubtful in their veracity.

He also informed the court that the timeline of the unveiling of this international plot was dubious as well. The no-confidence motion was moved in Parliament on March 8, while the conspiratorial letter miraculously came to light on March 7.

Senator Rabbani continued that the Speaker of the National Assembly (NA) Asad Qaiser was bound to call a session within 14 days of having received the no-trust motion, however he did not call a session until March 20, nearly 12 days after the submission. He adjourned the March 20 session due to an overlap with the Organization of Islamic Cooperation (OIC) meeting, however he was legally bound to hold a session by March 22. Instead, the session was called on March 25, in which the Speaker did nothing besides recite a prayer for a recently deceased Member of the National Assembly (MNA) and adjourned the session once again.

The next NA session was called on March 28, in which it was expected that there was to be discussion on the no-confidence motion, however, despite the Opposition’s plea to initiate the discussion, the session was once again adjourned without. 

On March 31, the Opposition submitted its questions regarding the no-trust motion and implored the Speaker to once again hold discussions, which he declined to do so. Senator Rabbani continued that on April 3, a session was suddenly called for which the order of business stated that there would be a vote on the motion. However, he pressed, no voting was held and Deputy Speaker Qasim Suri on behalf of the Speaker dismissed the motion.

Senator Rabbani pointed out that per this timeline of events, the Speaker’s refusal to call a session in the 12 days between March 8, when the motion was moved in Parliament, and March 20, when the OIC meeting took place, indicated malintent. Furthermore, failure to hold discussions on the motion on the March 25 session, the March 28 session and March 31 session also indicated the Speaker’s malintent. And finally, the Deputy Speaker’s move to ignore the rules of business for the April 3 session and to dismiss the no-confidence motion before it could even be discussed in Parliament is yet another indication of malafide.

Senator Rabbani also brought to the apex court’s attention the fact that the Deputy Speaker gave his ruling after Federal Information Minister Fawad Chaudhry alleged that the no-trust motion was a foreign plot. Senator Rabbani stated that what occurred that day was a sham trial, as nearly all Opposition members present in the house were declared traitors and were never given an opportunity to defend themselves from the accusations.

He also argued that under Article 95 of the Constitution of Pakistan, 20 percent of the members of the House must provide their signatures in favor of moving a no-confidence motion. In this case, over a hundred members had signed on the motion, therefore the only other constitutional way of disposing of the motion is via voting. Therefore, the Speaker’s refusal to allow voting to take place is a violation of Article 95.

Senator Rabbani further told the apex court that of the three ways that a Prime Minister can be removed per the Constitution is if they resign on their own; the President requests them to undergo a no-confidence vote if there is reason to believe the Premier no longer enjoys the confidence of the majority of the House; or if members of Parliament initiate a no-confidence motion against them. Furthermore, the Prime Minister has no constitutional right to dissolve the Assemblies if a no-confidence motion has been moved against them.

Senator Rabbani argued that the no-trust move is a democratic check on the powers of the Prime Minister, and that if the Opposition is to accept the Deputy Speaker Qasim Suri’s ruling, then the no-confidence vote will effectively be rendered a toothless provision.

In concluding his arguments, he urged the Supreme Court to subpoena the letter which “revealed” the conspiracy against the government, as well as the minutes of the meeting for a National Security Council convention on March 31 in which the services and intelligence chiefs were allegedly shown the contents of the letter. He also suggested that the court has the authority to constitute a judicial commission to initiate an impartial inquiry into the alleged letter.

Former Attorney-General for Pakistan Makhdoom Ali Khan, representing Pakistan Muslim League-Nawaz (PML-N) intitiated his arguments after his co-counsel, Senator Azam Nazeer Tarar informed the court that he will not speak in order to save the court’s time.

Khan established that a total of 161 members of the NA had provided their signatures in favor of moving a vote of no-confidence against Prime Minister Imran Khan – well and above the required 20 percent of Parliament’s strength. Therefore, the Speaker’s only constitutional recourse is to conduct a vote on the motion, which never took place and the motion itself tossed out.

He further stated that the ruling which the Deputy Speaker gave was a pre-written ruling. Qasim Suri did not listen to both sides in Parliament and deliberate on the arguments in order to arrive at the conclusion of disposing of the motion, and instead read out an already decided ruling before abruptly ending the session. These actions, Khan contended before the court, prove his malintent.

He then posited that constitutional provisions such as elections and votes of no-confidence are the heart of democracy, and any tampering or manipulation of these clauses effectively undermine the parliamentary system of governance. He continued that if a Prime Minister can scuttle through a vote of no confidence without having to put it to vote in Parliament, then that Prime Minister can stay in office even when they do not enjoy the majority of Parliament. Khan argued that a Premier who does not enjoy a majority in Parliament is against the very spirit of parliamentary democracy and governance.

Illustrating his point, he stated that if the Opposition were to accept the ruling and actions of the Speaker and Deputy Speaker in this case, then in a hypothetical scenario where a Premier who does not have the support of a single parliamentarian save the Speaker, that Prime Minister PM would not be removed from their position. Khan urged the Supreme Court that if what the Deputy Speaker did on Sunday were allowed to happen, then a Prime Minister can, in principle, remain in office lacking the support of the entire House save the Speaker.

Khan insisted that this is the case with Prime Minister Imran Khan as of now, to which apex court queried that in such a scenario, why cannot parliamentarians move a no-trust motion against the Speaker. To this, he replied that as in the present case, a no-confidence motion was pending against the Speaker, however the current situation came about irrespective of that. 

Makhdoom Ali Khan prayed to the bench that the Prime Minister is not directly elected by the people. Rather, it is Parliament which is elected by the people, and that elected Parliament in turns elects the Prime Minister and imbues the position with democratic legitimacy. And if Parliament chooses to take away that democratic legitimacy, then the Prime Minister can no longer claim to be democratically legitimate, which is the case with Imran Khan.

Khan also responded to the Supreme Court’s question whether the Deputy Speaker’s ruling to dismiss the no-confidence motion is protected under Article 69 of the Constitution. Per the provision, any procedural irregularity in the business and rules of Parliament cannot be challenged in a court of law. However, the PML-N’s counsel argued that Article 69 does not protect Parliamentary procedures directly contained in the Constitution.

In this case, the vote of no-confidence is not contained in the rules of Parliament, rather it is found in Article 95 of the Constitution. Therefore, Khan argued, the speaker’s actions of dismissing the motion after failing to put it to vote is not a procedural irregularity, rather it constitutes a constitutional irregularity.

Khan also provided a list of cases in Pakistan’s history as well as examples from across the world in which the courts intervened in Parliament’s affairs. One of these was the 1989 case of former caretaker Chief Minister of Balochistan Mir Zafarullah Khan Jamali, in which the provincial assembly was restored after initially being dissolved following the intervention of the Balochistan High Court.

The PML-N’s counsel argued that Article 69 is not utterly absolute, and that history is rife with examples of judicial intervention in parliamentary proceedings in order to protect the Constitution.

Justice Munib Akhtar posited that Article 69 means that Parliament is its own master, and that it exists in spirit to ensure the Trichotomy of Power between the Executive, Parliament and Judiciary. He explained to Khan that, per his argument, if the court were to disregard Article 69, then the judiciary could effectively intervene in proceedings of the House over minor irregularities, which is against the spirit of the Constitution and the Trichotomy of Power fundamental to democracy.

In response, Khan said that Article 69 only extends protection to the Speaker when his actions constitute a procedural irregularity or a violation of the rules and regulations of Parliament. However, the Speaker committed a constitutional irregularity, as it is the Constitution which deals with the procedures of carrying out a no-confidence motion. He reminded the Supreme Court that it must protect the Constitution, as it is its responsibility to keep a check and balance on the limits of power. He also urged that the court cannot escape responsibility merely by stating that the issue is political in nature.

Khan also quoted a prior judgment of the Supreme Court in which the order observed that the case has “arisen in circumstances which have never arisen before and will never rise again”. He informed the bench that he believes the current case is similar, that the court should determine itself what is and what is not protected under Article 69.

He informed the judges that his client had asked him to convey to the court that if the lordship believes that the opposition leaders are part of a foreign conspiracy, then the lordship of the court can call to his chamber the service chiefs and the intelligence chiefs to whom the contents of the letter were revealed and discuss the matter with them.

Khan also iterated that any action that stems from nullity is nullity, suggesting that if there is a no-confidence motion against a Prime Minister, then they do not have the jurisdiction to dissolve the assemblies. However, Prime Minister Imran Khan was able to do so because the Deputy Speaker – per his ruling – rejected the no-trust motion.

He said that if the Opposition is able to prove to the apex court that the Deputy Speaker’s ruling against the no-confidence motion is illegal, then every action stemming from that ruling is also illegal. Hence, Prime Minister Imran Khan’s move to dissolve the assemblies will also have proven to be illegal.

Makhdoom Ali Khan also strongly criticized Prime Minister Imran Khan nominating former Chief Justice of Pakistan Gulzar Ahmed as caretaker Prime Minister in an attempt to co-opt the judiciary, which he termed a “prejudicial mal-intended appointment”.

Prior to going for a break, Azam Nazeer Tarar lamented the situation in the Punjab Assembly, and called on the Attorney-General for Punjab to state before the court that the election for the new Punjab Chief Minister will be held tomorrow (Wednesday). He also accused the Pakistan Tehreek-e-Insaaf (PTI) government of deliberately delaying the election. The Attorney-General for Punjab provided that the last Punjab Assembly session was deferred because of a scuffle in the House, and refuted the claim that the PTI was purposefully pushing back the matter.

The Attorney-General for Punjab stated before the court that tomorrow’s proceedings of the Punjab Assembly will be conducted in accordance with the law tomorrow. However, later that evening, the session was postponed till April 16.

After the recess, Mansoor Awan representing the Pakistan Bar Council (PBC), Salauddin Ahmed of the Sindh High Court Bar Association (SHCBA), and the counsel for the Awami National Party (ANP) also presented their arguments against the Deputy Speaker’s move to dispose of the no-confidence motion.

The court observed following the hearing that the matter is still at a standstill, and adjourned the hearing for till Wednesday morning to hear the arguments of the Federal Government, represented by Babar Awan and Senator Ali Zafar, in the case. The court requested the Attorney-General for Pakistan to clarify whom he was representing, however he declined to answer, instead insisting that he was present to answer constitutional queries.

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