Legal Eagle: Why the Pakistan Supreme Court turned the clock back

Legal Eagle: Why the Pakistan Supreme Court turned the clock back

It is a high-pitched reminder that it is always the State that is subservient to the Constitution and not the other way round

Setting a constitutional milestone in its history with the verdict on denial of No-Confidence Motion against Prime Minister Imran Khan, the Supreme Court of Pakistan seems to have struck a heavy blow for constitutionalism and the rule of law in the country. Amidst a cacophony of conflicting views coupled with complex issues at hand, the apex court of Pakistan, to everyone’s surprise, didn’t avert its gaze this time but decided to take the bull by the horns. By unanimously setting aside the ruling of the Deputy Speaker with regard to the Resolution for a vote of no-confidence against the Prime Minister, and terming it contrary to the Constitution of Pakistan and the law, and thereafter restoring the National Assembly of Pakistan, the Court has vividly appeared, in line with its constitutional commitment, as the ‘Sentinel on the qui vive’ as regards democracy and constitutional rights. The judgment of the Court—a detailed and reasoned order of which is yet to be issued—might have put the cat among the pigeons, but it has surely cemented the bedrock principle of constitutional supremacy for the time being. Nevertheless, the purpose of this article, in any case, is not to lend itself to any political description but rather to analyse this politico-legal conundrum through the constitutional lens only.
Deputy Speaker’s Ruling
Article 95 of the Constitution of Pakistan deals with the vote of no-confidence against the Prime Minister. In addition, Rule 37, read with the Second Schedule of the Rules of Procedure and Conduct of Business in the National Assembly of Pakistan, lays down the procedure for the Resolution for a vote of no-confidence against the Prime Minister. Pursuant to this, in the instant case, the notice of Resolution was given by the required number of members of the Assembly on 08-03-2022, and with regard to that, leave was granted to move the Resolution on 28-03-2022. However, on the fateful day, 03-04-2022, the Deputy Speaker dismissed the Resolution, labelling it unconstitutional for being in violation of Article 5 of the Constitution. But this unprecedented ruling was prima facie devoid of any concrete legal basis and, in the first place, appeared to have arisen from a clear-cut misreading and misinterpretation of the law. Firstly, because the role of the Speaker—in the given situation—is limited and plainly defined under the Second Schedule of the Rules of the Business: like directing the bells to be rung for five minutes to announcing the result to the Assembly. No provision apparently under the rules of business licenses the Speaker to disallow a resolution for a no-confidence vote. Secondly, invoking Article 5 to put an embargo on the constitutional rights of the members of the Assembly was, in fact, a violation of Article 95 and tantamount to disobedience of the Constitution under Article 5(2). Also, there was no explicit scope for the Deputy Speaker to club together the general provisions of the Constitution with the provisions concerning the vote of no-confidence. Doing this was actually akin to doing violence to the constitutional text. It was a classic scenario of using one part of the Constitution to obliterate the other.
Irregularity of Procedure
Another issue involved in this event was the irregularity of the procedure. Under Article 69 of the Pakistan Constitution, the Court is inhibited from inquiring into proceedings of Parliament on the ground of any irregularity of procedure. Interestingly, the Indian Constitution under Article 122 echoes the same principle. It is to be noted that such immunity from judicial interference is only limited to the ‘irregularity of procedure’ and not the ‘illegality’ or ‘unconstitutionality.’ In case of any patent illegality in the parliamentary proceedings, the Court is not barred from stepping in to scrutinise and rectify the same. On this point of law, the Supreme Court of India, in the case of Vinod Kumar v. State of H.P., AIR 1959 SC 223, has held that “there would be no immunity if the proceedings are held in defiance of the mandatory provisions of the constitution by exercising powers which the legislature does not possess under the Constitution.” Also, in several cases, the Indian Supreme Court has reasoned that an act of unconstitutionality will not save the parliamentary proceedings from the scope of judicial review. Likewise, in this case, since the question of unconstitutionality had crept in, the Pakistan Supreme court intervened suo motu and declared the ruling of the Deputy Speaker illegal. Therefore, seeking shelter under the plea of irregularity of procedure, in this case, was not legally tenable, and thus could not suffice to veto judicial interference.
Restoring the National Assembly
Until the Resolution for vote of no-confidence was pending against the Prime Minister, he was under the bar imposed by the Explanation to Clause (1) of Article 58. So, during that period, he could not have advised the President under Article 58(1) to dissolve the National Assembly. But once the Deputy Speaker rejected the Resolution and prorogued the session, the Prime Minister was no longer bound by this restriction. Hence, resorting to Article 48(1) read with Article 58(1) of the Constitution of Pakistan, the Prime Minister advised the President to dissolve the Assembly. However, when the Deputy Speaker’s ruling was declared illegal by the Court, all the subsequent actions and proceedings that had ensued from his ruling to dismiss the no-trust Resolution were also unconstitutional and of no legal effect. As the actions and proceedings amount to being void ab initio. For the same reasons, the Supreme Court ordered to reinstate the National Assembly and summon its session to hold voting on a no-trust motion moved against Prime Minister.
Doctrine of Necessity
The Pakistan courts have several times invoked the doctrine of necessity in the past to justify the State actions. This doctrine simply means “what is not otherwise lawful is made lawful by necessity.” The English Jurist, Henry de Bracton, expounded this doctrine in the 13th century. In the given case, since the Deputy Speaker vindicated his actions by citing foreign influence to overthrow the government, this contentious doctrine was looming large. But, this time, the Court decided to toss it away altogether. Had the Court affirmed and applied this doctrine again, it would have surely provided an escape route to the State and opened the door wide open for unconstitutional actions in the future, thus sounding the death knell for this hidebound doctrine.
As a matter of fact, it is quite axiomatic that the verdict of the Court is momentous on several counts. Primarily, it will stand as a bulwark against any government in the future that attempts to go beyond the limits of its authority. Secondly, it is a punctilious precedent for all the organs of the State in Pakistan that capriciously deviating from the Grundnorm of the land cannot be given a free pass – come what may! Thirdly, for the Rule of Law to thrive, arbitrary use of power cannot be permitted to perpetuate. Above all, the holy cow ‘National Security’ cannot be unconditionally allowed to gulp down the constitutional principles. It is a high-pitched reminder that it is always the State that is subservient to the Constitution and not the other way round. For all the foregoing reasons the Supreme Court of Pakistan’s verdict was warranted and therefore turning the clock back was apparently in the right spirit of its Constitution.

The writer is a final-year Law student at Central University of Kashmir and can be reached at [email protected]

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