The Supreme Court has played a pivotal role in shaping national politics since March. Instead of resolving inter-party disputes, the leaders of Pakistan’s political factions have sought apex court intervention to resolve them. Conversely, both sides have also attacked the Supreme Court led by Chief Justice of Pakistan Umar Ata Bandial whenever it passed rulings against one side or the other.
With political polarisation at its peak, questions are now being posed to regulate the discretionary powers of the Chief Justice of Pakistan regarding the composition of benches and fixation of cases while the conduct of assembly speakers are under strict judicial review on account of partisan decisions. At the same time, questions are also being raised over the conduct of the president of Pakistan. If the top court continues to adjudicate political questions, its integrity will be at stake. In order to ensure transparency, a criteria needs to be evolved to form benches hearing high profile cases.
Supreme Court involvement was started when a special bench comprising CJP Umar Ata Bandial and Justice Muneeb Akhtar on March 19 took up the Supreme Court Bar Association (SCBA) petition that sought to direct all state functionaries to act strictly in accordance with the Constitution and the law in light of the no-trust vote against then prime minister Imran Khan. The petition prayed on the apex court to direct the National Assembly speaker to carry out the process of no-confidence motion according to the Constitution and further requested the SC to prevent state agencies from arresting or detaining MNAs and to stop public gatherings in the federal capital which prevented the assembly members from reaching the Parliament. The matter was taken up on Saturday, a day judges usually do not sit to hear cases. After two days, the PTI led government filed a presidential reference seeking interpretation and scope of Article 63A of the constitution. The presidential reference was filed by then Attorney General for Pakistan Khalid Javed Khan.
The apex court clubbed presidential reference along with the SCBA petition wherein it was requested to restrain political parties from holding public meetings in Islamabad before voting on the no-confidence motion'. A five judge larger bench of the apex court led by CJP Bandial and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail heard the matter. During the hearing, then government assured that no MNA would be halted from voting of no confidence against ex-PM.
The Supreme Court again intervened on April 3 in a constitutional crisis wherein Deputy Speaker National Assembly Qasim Suri rejected the no confidence resolution against ex prime minister Imran Khan through a ruling. Subsequently, the president dissolved the National Assembly on the advice of then prime minister.
CJP Bandial took suo motu notice over the halting of the no confidence resolution process against the ex-PM under Article 95 of constitution. All major parliamentary opposition factions thus became parties in the suo motu proceedings. The apex court on April 7 restored National Assembly by declaring deputy NA speaker Suri's ruling as unconstitutional. The bench unanimously directed the NA speaker to ensure the process of no confidence against ex-PM Imran Khan under Article 95 of constitution.
When the NA speaker delayed the vote on the no confidence resolution, the SC was opened at midnight. Following this development, voting started and concluded successfully. However, the PTI leadership started raising questions over why the apex court was opened at midnight. Imran Khan, particularly, raised the issue in a public address. A campaign was also carried against judges on social media. The superior bars, however, lauded the SC role in ensuring the completion of the process of no confidence against the ex-PM.
In the meanwhile, the same bench resumed the hearing of a presidential reference regarding interpretation and scope of Article 63A of the Constitution. The bench did not wait for the return of PML-N counsel Makhdoom Ali Khan as he was on general adjournment and out of the country. The proceedings were concluded in haste. One section of lawyers believes that the SC was visibly feeling pressure from Imran Khan's criticism.
The bench, on May 17, held by a three-to-two majority that the votes of defecting lawmakers could not be counted under Article 63A of the Constitution. The two judges who shared the minority opinion stated that “any further interpretation of Article 63A, in our view, would amount to re-writing or reading into the Constitution and will also affect the other provisions of Constitution, which has not even been asked by the president”.
Many lawyers termed the majority opinion a 'balancing act' and they did not welcome the majority judges’ interpretation of Article 63A. While the majority judges – namely CJP Bandial, Justice Ijazul Ahsan and Justice Munib Akhtar – did not issue detailed reasons on their interpretation of the article, the two minority judges namely Justice Mazhar Alam Miankhel and Justice Jamal Khan Mandokhail issued detailed their opinion on July 2.
Supreme Court Justice Jamal Khan Mandokhail observed that the judges had no authority to assume the role of the parliamentarians and to replace their wisdom by amending the Constitution while expressing his dissenting opinion on the majority decision. He added that judges while interpreting any provisions of the Constitution should limit themselves to a fair reading of its words and the intention of its framer, and no more. “Otherwise, judges enter the realm of creating, not just interpreting the Constitution.” Similarly, Justice Mazhar Alam Miankhel said that answering any question mentioned in the presidential reference on the scope and interpretation of Article 63A of the Constitution, in the affirmative would lead the Supreme Court to exceed and overstep its domain.
The majority opinion severally affected the PML-N position. Subsequently, the Election Commission of Pakistan (ECP) de-seated 25 MPAs in the Punjab Assembly. The federal government, meanwhile, is surviving with only two votes.
The SCBA filed a review petition against the majority opinion and the matter is still pending in the apex court. Similarly, the PDM has announced that another presidential reference would be filed in the apex court seeking fresh interpretation of Article 63A through the full court.
Following the majority opinion on Article 63A, the Lahore High Court on June 30 declared the election of the Punjab chief minister as void and directed for new polls under Article 130(4) of the Constitution. The SC took up the PTI petition against the holding of a second chief ministerial election the next day, postponing the voting until July 22. However, it allowed Hamza Shehbaz to continue working as the chief minister till then.
On July 22, Punjab Assembly Deputy Speaker Sardar Dost Mazari discarded 10 PML-Q votes in the CM election through a ruling. The Supreme Court entertained PTI candidate Pervez Elahi's petition at midnight . Subsequently, the case was fixed before a three-judge bench led by CJP Bandial and comprsing Justice Ijazul Ahsan and Justice Munib Akhtar on Saturday at the SC Lahore Registry. All respondents including the deputy speaker of Punjab Assembly, Hamza Shehbaz, Chaudhry Shujaat Hussein and others requested for the constitution of a full court to hear the matter along with a review petition against the SC majority opinion on interpretation and scope of Article 63A of the Constitution.
Six SCBA presidents also appeared before the bench with the request to form a full court. However, the bench rejected their plea in this regard. Following this development, all respondents including Hamza Shehbaz boycotted the court proceedings.
Some analysts hold the view that counsels pleading the PML-N’s case could have ended up touching the ‘raw nerves’ of the judges. For instance, when Deputy Speaker Dost Muhammad Mazari’s lawyer Irfan Qadir contended that a full court could also dispel the impression “that certain cases go to the same bench”, CJP Umar Ata Bandial, who is known for being even-tempered, seemed to have been irked. At one point, the CJP issued a stern warning to Qadir that if he did not listen to the judges, he would be asked to leave the rostrum.
To make the matters worse, Mazari’s counsel said that CJP was consistently urging political leaders to be united in national interest, wondering when the SC judges will get united. "You are not biased but you are not free from bias,” Irfan Qadir said.
Likewise, the decision also spawned a high volume of speculations about the top court’s own “insecurities” – a claim more loudly chorused by the parties whose political stakes were badly affected. Maryam made a series of critical tweets soon after the apex court's verdict, saying fear of contradictions in the court's own decision was the reason the request for a full bench was rejected. Subsequently, the same bench had declared the deputy speaker PA ruling as unconstitutional.
While legal experts do acknowledge that the short order against the deputy speaker's ruling was correct, they also point out that the language used in the order was noticeably harsher than the one used in the judgment against then National Assembly Speaker Qasim Suri’s April 3 ruling to block a no-confidence motion against Imran Khan.
Following this decision, the federal government has decided to carry out legislation for regulating the CJP’s discretionary powers. PML-N supporters are questioning the fixation of political cases before the judges who have particular mindset. Legal debate also continues as to whether or not the Supreme Court’s detailed judgment quashing the then National Assembly deputy speaker’s ruling had affected parliament sovereignty.
CJP Umar Ata Bandial while authoring the judgment had interpreted Article 69 of the Constitution as follows: “Article 69 reads that the validity of any proceedings in Majlis-e-Shoora [parliament] shall not be called in question on the ground of any irregularity of procedure.” The judgment stated that parliamentary proceedings that infringed the provisions of the Constitution were no longer protected. “However, we reserve our comments on the effect of an illegality/violation of a law on the protection provided to proceedings in parliament. Indeed the latter scenario does not arise for determination in the present matter,” it added.
PTI senior leader Fawad Chaudhry, who is also an advocate, said the Supreme Court had ended the sovereignty of parliament by usurping Article 69 of the Constitution.“The Supreme Court has taken over parliamentary functions,” he added. But renowned lawyer Salman Akram Raja disagreed that the judgment undermined parliamentary sovereignty and claimed that Article 69 only protected the irregularity of procedure. "The language used in Article 69 is a clear departure from the language used in the para materia provision in the 1956 Constitution,” he added.
“No absolute bar to judicial review has been imposed. This was a case in which the deputy speaker, acting as the speaker, had obstructed the working of parliament. The court enabled parliament to function. The idea that the speaker can bring parliamentary functions to a standstill and deprive members of the right to debate and vote is nonsense.” The lawyer maintained that the judgment had ensured that a speaker did not stifle parliament by becoming a tool in a political scheme. “Parliament's authority has in fact been restored.”
Raja also said that the speaker was not the National Assembly. “If he [speaker] prevents the assembly from functioning, he must be overruled by the courts, particularly when the assembly itself has been disabled from correcting the speaker's wrong actions.”
Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed said overall it was a well-reasoned judgment. "It does not affect parliamentary sovereignty. The SC has pointed out that Article 69 of the 1973 Constitution only protects any procedural irregularities whereas the previous Constitutions protected all parliamentary proceedings,” he added. “The speaker’s act of not allowing voting on the no-confidence motion was not a mere procedural irregularity but a clear defiance of the express mandate of Article 95 of the Constitution. As such, it could not be given the protection of Article 69.”
The ex-SHCBA president claimed that the SC verdict emphasised that it was the Constitution that was supreme instead of parliament. “It also points out that there was no cogent material before the speaker to allow him to reach a conclusion of foreign interference.”
Salahuddin further said the SC had also rightly declined the then attorney general for Pakistan's request to allow fresh elections rather than directing the motion of no-confidence to go ahead. He observed that this would amount to giving the PTI government a premium on its own illegal act. "The only objectionable part of the judgment is where SC observed that it cannot lend support to any extra constitutional measure unless a compelling public interest is demonstrated by evidence,” he noted. “In fact, the SC cannot and must not support extra-constitutional steps under any circumstances - whether under pretext of ‘public interest' or otherwise. The judiciary can only decide matters as per law.