Doctrine of necessity reburied

Lawyers believe Chief Justice Bandial has emerged as a hero in the bar

ISLAMABAD:

The Supreme Court has given a big surprise to everyone by giving a bold ruling that will greatly help bring political stability to the country.

No one was expecting such a straight-forward order in a courtroom that was jam-packed beyond capacity for several reasons.

Several lawyers were assuming that the composition of the bench was in favour of the Pakistan Tehreek-e-Insaf (PTI), given the outcome of several high-profile cases since the Panamagate case.

Similarly, the apex court played a significant role in bringing the PTI to power and weakening its rivals.

Likewise, during the hearing, the bench members had kept their cards close to their chest by refraining from giving any observation that could shed light on what was going on in the judges’ mind or give a clue about the judgment.

Even the audience in the courtroom was somewhat confused, especially after the judges’ observations given on the last day (Thursday) of the hearing favouring early general elections to end the political turmoil in the country.

Opposition Leader Shehbaz Sharif was present in the courtroom during the proceedings on Thursday. Interestingly, the bench asked him to give a timeframe for the next general elections.

Even the judges passed remarks in favour of holding the next general elections.

The bench also wondered why those who wanted fresh elections are reluctant to go for the same.

At the end, the Supreme Court summoned Chief Election Commissioner Sikandar Sultan Raja to apprise them of the Election Commission of Pakistan’s (ECP) preparations for holding the next general elections.

Before the announcement of the order, the CEC came to the rostrum and told the bench that seven months -- four months for delimitation and after that three months for holding the elections would be required.

Interestingly, the order to restore the assemblies had already been written when the CEC was called to the Supreme Court.

All members of the PTI legal team were present in the courtroom while very few lawyers from the opposition side came to hear the announcement of the order.

Read Constitution reigns supreme

Senior lawyers believe that Chief Justice Umar Ata Bandial emerged as a hero in the bar which had challenged the deputy speaker’s ruling. Earlier, the bar was more inclined towards Justice Qazi Faez Isa.

However, the PTI legal team was of the opinion that the ruling had damaged the supremacy of parliament as well as in violation of trichotomy of powers.

Lawyers are of the view that the ruling party is responsible for the damage as it misused the office of the speaker of the National Assembly by passing the ruling under Article 5 of the Constitution.

The same article, which talks about citizens’ loyalty to state, is not mentioned by the Supreme Court in its order for a single time.

Senator Mustafa Nawaz Khokhar said that the Supreme Court won the hearts and minds of the people. It not only buried the doctrine of necessity but also Imran Khan’s toxic narrative of “Ghaddari (treachery)”.

He said that the Supreme Court did not even utter a word mentioning Article 5 to reject the no-confidence resolution. “This is exactly the treatment such flimsy and divisive argument deserves,” he added.

"The judgement of the SC is historic. The Constitution has been upheld. Institutions working under the Constitution have been strengthened. Rule of law restored and the democratic system prevented from being derailed,” Senator Raza Rabbani said.

Former Sindh High Court Bar Association president Salahuddin Ahmed said that it was an extremely clear and comprehensive order delivered strictly as per the letter of the law.

“I am particularly pleased that the court did not refer to any non-legal considerations and avoided the attorney general for Pakistan’s invitation to enter into irrelevant discussions of so-called national interest, the economy, possible political turmoil and other political questions.

Read SC urged to punish violators of Constitution

“By taking up the issue urgently and deciding it strictly within the four corners of the Constitution, the Supreme Court has enhanced its prestige and standing and performed its constitutional obligations admirably,” he added.

Advocate Hafiz Ahsaan Ahmad Khokhar stated that the judgment issued by exercising the jurisdiction under Article 184(3) of Constitution “is unique in the constitutional history of Pakistan” and would have a great impact on the future of Pakistan wherein the action of the speaker has been prima facie while interpreting Article 95 of the Constitution.

He said while announcing the judgment the Supreme Court touched upon and interpreted four important articles of the Constitution relating to the immunity of the proceedings of parliament under Article 69, vote of no-confidence process mentioned in Article 95, enforcement of fundamental rights under Article 184(3) and the prime minister’s advice relating to the dissolution of assembly to the president under the Constitution.

“The Supreme Court has gone to the effect of Rule 37 of Procedure and Conduct of Business in the National Assembly which also speaks for vote of no-confidence.”

He said that the Supreme Court judgment has delicately touched upon the trichotomy of powers prescribed in the Constitution, which “we must say as a hallmark of the Constitution through exercising power under Article 184(3) which purely deals with the original jurisdiction of the Supreme Court relating to public interest and enforcement of fundamental rights of citizens for the future of Pakistan”.

Khokhar said, “This is a binding judgment in all perspectives that not only sets aside the ruling of the deputy speaker on the touchstone of violation of Article 95 of the Constitution, but also gives directions of certain actions to certain high constitutional offices of the country by reviving the vote of no-confidence process, holding of such sessions on coming Saturday and by not proroguing it till the completion of process, and if the motion succeeds, the next process of vote of confidence of the next prime minister under Article 91 of the Constitution would be held immediately for smooth transition.”

He said the judgment would set certain guidelines for constitutional framework of the country and would have a deterrence effect as well for those who would try to deviate the Constitution and law.

Khokhar said, “This is a unique case in which the Supreme Court has given its constitutional resolve in its original jurisdiction and decided a high-profile constitutional matter within a week’s time under Article 184(3) of the Constitution.”

He said for more constitutional and legal stability in Pakistan, the Supreme Court should decide all such pending matters relating to important provisions of the Constitution and fundamental rights on immediate grounds so that the country would run and move towards real implementation of rule of law.

Barrister Sajeel Swati said the judgement was in line with the constitutional order and saved parliamentary democracy. Any other interpretation would have rendered Article 95 “negatory and superfluous”, giving the speaker an unbridled power to defeat no-confidence motions without voting thereon.

Barrister Asad Rahim Khan said that it was a good day for the Constitution, and for the sanctity of parliament. "For the first time in almost three decades, the Supreme Court has not only held dissolution illegal, but also restored parliament – ensuring none of the moral greyness we had with the Junejo-era verdict.”