Image sources: Los Angeles Consumer & Business Affairs, Collecting Your Judgment (Los Angeles Consumer & Business Affairs, 18 March 2022) accessed 08 April 2022
The ouster of the ex-PM Imran Khan through a historic vote of no-confidence saw the role of the Supreme Court enhanced, as well as criticised in the former premier’s exit. Late into the 7th of April, however, the Supreme Court put the matter to bed. Imran Khan’s move to dissolve the Parliament, and all the subsequent political theatrics that followed, were all constitutional questions which the Supreme Court brought into its purview. The dismissal of a vote of no-confidence by Deputy Speaker Qasim Suri has been seen by many as an unconstitutional final attempt to hold power. The Supreme Court confirmed this stance in its short order on the 7th of April in a historic decision.
The opposition had moved a motion for a vote of no-confidence on the 8th of March, with the resolution being passed shortly thereafter. Voting was scheduled to take place in the National Assembly on the 3rd of April. This did not happen. Instead, the resolution was ‘dismissed’, and the National Assembly was dissolved by the President on the advice of the former Prime Minister. To dissolve an assembly is akin to the end of the current Assembly’s lifetime, in the aim that it will be reconstituted freshly after elections. Dissolving the Assembly in such a manner was problematic in that it blatantly ran afoul of the provisions entrenched in the Constitution. Article 58(2) states that there can be no dissolution where “a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon…” This was clearly the case for the tabled resolution had not been voted upon. To work around the problem, the Deputy Speaker ‘dismissed’ the resolution out of existence; one could not vote on something that no longer existed. The powers of the Speaker and the Deputy Speaker, however, do not entitle him to ‘dismiss’ such a resolution in the slightest. His only duty is to announce the result. Seen from such a viewpoint, the Deputy Speaker’s spin was a travesty of the Constitution and threatened to distort the very edifice upon which the country stood.
With this in mind, the Supreme Court took notice of the matter. Prior to doing so, the President had, under Article 186 of the Constitution, referred a question of ‘public importance’ to it. Essentially, the Supreme Court was asked to give its opinion on the status of defecting PTI members. Defectors in the current context, under Article 63A of the Constitution, refers to members of the National or Provincial Assemblies who have voted against party lines. In the question still pending before it, the Supreme Court must answer whether such defectors can be disqualified before the act of voting itself and, if so, whether such disqualification can extend for a lifetime. In addition, the PTI has filed a petition asking for the same to be acted upon. These matters, however, are offshoots birthed by the Supreme Court’s admirable handling of the constitutional crisis.
For the sake of clarification, the Supreme Court of Pakistan, as the highest court of the land, operates as the custodian of the Constitution of Pakistan. Under Article 184(3) of the Constitution, the Supreme Court may take up, on its own motion, and declare judgment upon a case of public importance that has to do with the enforcement of the fundamental rights conferred by the Constitution. This ‘suo moto’ jurisdiction was exercised by the Chief Justice after the events that resulted in the dissolution of the National Assembly. Initially constituting a three-member bench, the Chief Justice, on the next day, decided upon a 5-member bench for a case of such landmark importance.
On the very first day of hearings, the Supreme Court declared that all orders passed in the days leading up to this breaking event by the President or the Prime Minister shall be a matter of investigation by the Court, and conditional upon anything which the Court was yet to decide. By doing so, it retained the right to review and rectify all that had happened and was to happen.
The question before the Court, as the sole forum judging upon one focal constitutional and legal point, was this: to what extent was the dismissal of the no-confidence resolution, and the subsequent dissolution of the National Assembly, in line with the legal and democratic nature of the Constitution?
In its pursuit for an answer, the Supreme Court had heard the matter for 4 consecutive days, and finally passed its short order (reasons for which were to be recorded later) on the 7th of April at 7:30PM. It held that the act of the Deputy Speaker in purportedly affecting dismissal of the vote of no-confidence was “contrary to the Constitution and the law and of no legal effect”. What this essentially meant was that the Speaker had no authority to dismiss the resolution and that, as such, the vote of no-confidence remained “pending and subsisting”. Since the resolution was yet to be “voted upon”, the bar imposed by Article 58(2) remained operative; the dissolution of the National Assembly was also of no legal effect. This meant that the office of Prime Minister Imran Khan was restored, alongside that of his advisors and ministers.
With the crux of the matter having been decided upon, it went without saying that the acts flowing from such dissolution- including the declaration of fresh elections and the recommendations for appointment of a Caretaker Prime Minister, which included recently retired ex-CJ Gulzar Ahmed- were set aside.
Essentially, the Supreme Court wound back time and held that the National Assembly had never been dissolved; it was in existence at all times and was still to take up the vote. It mandated that voting would take place no later than 10:30PM on the 9th of April and that whatever the outcome, there would be no obstruction by the Federal Government. Interestingly, the Court clarified that any member of the PTI voting in favour of the resolution will not be exempt from any proceedings against them under Article 63A.
The five-member bench’s unanimous decision was undoubtedly the focal point of the vote that eventually followed, which saw Imran Khan being successfully ousted. What is more important, however, was how the Supreme Court zealously guarded the Constitution and its faithful application. This is more so considering Pakistan’s chequered constitutional history. The past had seen the apex court in Federation of Pakistan vs Haji Saifullah[1] find the dissolution of the National Assembly illegal, and yet did not see fit to restore the assemblies. With such precedent in place, many were apprehensive that the Supreme Court would allow a grave misuse of the Constitution to subsist. These fears were not very well founded and a more detailed judgment will follow.
[1] (PLD 1989 SC 166)
Authors
Smam Mir.
Team Lead and Coordinator, RCIL & HR (smamabdallah10@gmail.com).
Caleb Stangl
Research Assistant, RCIL & HR (calebstangl@gmail.com).
Amina Zekovic
Research Assistant, RCIL & HR (aminazekovic97@gmail.com).