April 3, 2022 will go down as the blackest day in the constitutional history of Pakistan, when a civilian prime minister held the constitution in contempt to achieve his nefarious designs. Laughter and jeers by the PTI's leaders will haunt us forever.
Invoking Article 184(3), a three-member bench of the Supreme Court took a suo moto notice of the crisis on Sunday, April 3. The next day, on Monday, April 4, the bench included two more judges. The request to constitute a more inclusive bench was turned down.
Deputy Speaker Qasim Suri’s ruling to block the no-confidence motion and Prime Minister Imran Khan’s advice to President Arif Alvi to dissolve the National Assembly have given birth to thorny legal questions. Deputy speaker and speaker of the National Assembly hold their allegiance to the constitution. They take their oaths given in the third schedule to the constitution – “preserve, protect and defend the Constitution”, “without fear or favour, affection or ill-will” is their bounden duty. They derive their authority and power from the constitution. They do not enjoy unlimited powers. The speaker or the deputy speaker become functus officio when a no-confidence motion against the prime minister of the country is moved. Voting is to be carried out under all circumstances – regardless of the motion’s success or failure.
Further, a glance at Article 95 of the Constitution shows that under no circumstances could the deputy speaker allow a member of the treasury bench to question the constitutionality of the motion by relying on Article 5 of the Constitution or under the garb of an alleged conspiratorial plot hatched by a foreign government with the alleged collusion of the opposition parties. He could not have taken the allegation as the gospel truth and rushed to declare it unconstitutional.
The invocation of Article 5 by Fawad Chaudhry and then by Qasim Suri was absolutely unwarranted. Article 58 of the Constitution empowers the prime minister to dissolve the National Assembly in special circumstances only. However, the present circumstances bring the prime minister out of its purview as he is facing a no-confidence motion. The constitution-makers in their wisdom clipped the prime minister's wings to dissolve the National Assembly in special circumstances to not let the constitutional and democratic process go off rails.
The legal community and the public alike are discussing Article 69 of the Constitution with great zeal and fervor, which falls in the category of the ‘ouster clause’. An ouster clause bars or ousts the jurisdiction of the Superior Courts to question the legality, vires, correctness, and constitutionality of a particular action committed. It aims at saving the authorities from getting bogged down in unnecessary and frivolous litigation. Several laws in vogue in Pakistan contain such clauses.
April 3, 2022 will go down as the blackest day in the constitutional history of Pakistan, when a civilian prime minister held the constitution in contempt to achieve his nefarious designs. Laughter and jeers by the PTI's leaders will haunt us forever.
On the other hand, a plain reading of Article 69 makes acts of the parliament non-justiciable and non-amenable to the jurisdiction of the Superior Courts, when they suffer from ‘procedural irregularity’. Articles 199 (3) and 225 oust the jurisdiction of the Superior Courts to exercise judicial review. However, it is the consistent view of the Superior Courts that for an ouster to operate, the action must be within the statutes of the constitution. If the action is beyond the pale of the Constitution and it suffers from mala fide in fact or law, the ouster clause would not stand in the way of the courts to declare it ultra vires the Constitution.
Turning back to Article 69 of the Constitution, the deputy speaker's action to reverse the no-confidence motion suffers from mala fide in law and fact. Article 69 doesn't extend protection to the deputy speaker's unconstitutional action.
Since the Constitution of Pakistan is founded partly on the British parliamentary form of governance, it would be worthwhile to recall what happened in England at the height of the Brexit crisis in 2019. Acting on the advice of Prime Minister Boris Johnson, the Queen prorogued the parliament between September 9 and 12 until October 14, 2019. It was the longest period of prorogation ever. It was brought under challenge before the High Court of England & Wales and the Court of Session in Scotland. Both the courts rendered opposite verdicts. The High Court held that no legal challenge could be thrown to the prime minister’s prerogative, while the Session Court held that the action of prorogation was open to legal challenge.
Ultimately, the matter went up to the UK Supreme Court [R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland], which handed down a unanimous decision. Authored by the Chief Justice Lady Hale, it was held that the courts had ample powers to put the prerogative of the prime minister to the litmus test of judicial review. The Supreme Court repelled the argument put forward by the government that according to the Bill of Rights, 1688, “proceedings in parliament” cannot be called into question in any court. It also went on to hold that sovereignty of the parliament is the foundational principle that could not be undermined.
Some legal experts opine that the Supreme Court exercises restraint to restore the National Assembly when the elections are announced. They cite the precedents of Muhammad Khan Junejo and Benazir Bhutto cases in which the Supreme Court declined to restore the National Assembly when it was dissolved by the president under Article 58 (2)(b).
Here is why both these cases bear distinguishable features, standing on a different footing and, therefore, not applicable to the dissolution of the National Assembly by Imran Khan in the wake of the deputy speaker's ruling to reverse the no-confidence motion: Article 58(2)(b) was invoked on May 30, 1988 by President General Ziaul Haq to dissolve the National Assembly. The Junejo government was sent packing. The dissolution was challenged before the Lahore High Court in Muhammad Sharif V. Federation of Pakistan (PLD 1988 Lah. 725). The full bench declared the dissolution unconstitutional.
Article 69 of the Constitution, the deputy speaker's action to reverse the no-confidence motion suffers from mala fide in law and fact. Article 69 doesn't extend protection to the deputy speaker's unconstitutional action.
However, the court didn't restore the National Assembly mainly because: one, a new spirit couldn't be infused into a non-existent assembly; two, the National Assembly's election was conducted on non-party based elections; three, no aggrieved person (the leader of the house and speaker) came forward to challenge it; and lastly, the nation was all set for general elections. This order of the Lahore High Court was challenged before the Supreme Court, which upheld it in the case, titled Federation of Pakistan V. Haji Muhammad Saifullah Khan (PLD 1989 SC 166).
In yet another exercise of Article 58(2)(b), this time by President Ghulam Ishaq dissolved the National Assembly on August 6, 1990. Resultantly, Prime Minister Benazir Bhutto and her cabinet ceased to hold office. The dissolution was challenged before the Lahore High Court in the case, titled Ahmad Tariq Rahim V. Federation of Pakistan (PLD 1990 Lah. 505), which declined to interfere. An appeal preferred before the Supreme Court also met the same fate (PLD 1992 SC 646).
For the second time, President Ghulam Ishaq Khan invoked Article 58(2)(b) to dissolve the government of Nawaz Sharif in 1993. Be that as it may, the Supreme Court not only declared the dissolution unconstitutional, it restored the Sharif government with immediate effect (PLD 1993 SC 473).
It can hardly be overemphasized that Article 58 (2)(b) was amended by the 18th Amendment, which took the power away from the president to dissolve the National Assembly. Now it is the prime minister that advises the president to dissolve the National Assembly, and not the other way round.
To draw together the threads of the whole discussion, from Molvi Tameezudin’s case to Bhutto’s Judicial Murder to Nawaz Sharif’s disqualification for life, the controversial judicial history bears witness to the fact that seldom have the judges rendered decisions without fear and favour, upholding the supremacy of the constitution, rule of law and parliamentary sovereignty. However, one cautiously hopes that the Supreme Court's bench will set things right and will pull the country out of the ongoing constitutional crisis.