Pakistan Supreme Court’s dubious role in ousting Imran Khan
Opposition parties in the National Assembly on Sunday (April 9 night) defeated the ruling PTI government of Imran Khan in the no-confidence resolution with 174 votes. The vote on the no-confidence motion came after the Supreme Court order of April 7. Chief Justice Umar Ata Bandial read out the decision which in part said:
The Speaker is under a duty to summon and hold a sitting of the Assembly in the present Session and shall do so immediately and in any case not later than 10:30 a.m. on Saturday 09.04.2022, to conduct the business of the House as per the Orders of the Day that had been issued for 03.04.2022…The Speaker shall not, in the exercise of his powers under clause (3) Article 54 of the Constitution, prorogue the Assembly and bring the Session to an end……If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful) then the Assembly shall forthwith, and in its present Session, proceed to elect a Prime Minister….
On April 9, while the National Assembly was debating the no confidence motion against Imran Khan, Pakistan Supreme Court was opened and CJ and other bench member judges arrived apparently to take action if the National Assembly fails to meet the deadline to vote on the motion. Media reports indicated that while the National Assembly was debating the no confidence motion prison vans were stationed outside the National Assembly, apparently to take away officials guilty of contempt. There was speculation that the Speaker and Deputy Speaker could be arrested if the vote was not held by midnight as ordered by the Supreme Court.
NA Deputy speaker dismisses no-trust move against PM Imran
On April 3, National Assembly Deputy Speaker Qasim Khan Suri dismissed the no-trust move against Prime Minister Imran Khan, terming it against Article 5 of the Constitution.
Suri chaired today’s session after opposition parties filed a no-confidence motion against Speaker Asad Qaiser.
According to Article 5:
(1) Loyalty to the State is the basic duty of every citizen
(2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan
Information Minister Fawad Chaudhry said that loyalty to the state was the basic duty of every citizen under Article 5(1). He reiterated the premier’s earlier claims that a foreign conspiracy was behind the move to oust the government.
“On March 7, our official ambassador was invited to a meeting attended by the representatives of other countries. The meeting was told that a motion against PM Imran was being presented,” he said, noting that this occurred a day before the opposition formally filed the no-trust move.
“We were told that relations with Pakistan were dependent on the success of the no-confidence motion. We were told that if the motion fails, then Pakistan’s path would be very difficult. This is an operation for a regime change by a foreign government,” he alleged.
The minister questioned how this could be allowed and called on the deputy speaker to decide the constitutionality of the no-trust move.
Deputy Speaker Qasim Khan Suri pointed out that the motion was presented on March 8 and should follow the law and the Constitution. “No foreign power shall be allowed to topple an elected government through a conspiracy,” he said, adding that the points raised by the minister were “valid”.
He dismissed the resolution, ruling that it was “contradictory” to the law, the Constitution and the rules. The session was then immediately prorogued.
What’s in the letter?
According to statements made by Khan during the NSC meeting, senior officials from the US State Department (believed to be an Undersecretary of State) sent the letter on 7 March via Asad Majeed Khan, the Pakistani ambassador in Washington.
The document reportedly states that there will be a no-confidence motion (NCM) against the prime minister soon, that Khan should know that it is coming and that he should not resist the NCM but go down with it. If he tries to resist it, the letter allegedly continues, Khan and Pakistan will face horrible consequences.
The letter mentions the NCM about eight times. The next day, on 8 March, a no-confidence vote was indeed announced. According to Khan, he has security agency information on how the illegal buying and selling of votes took place among Pakistan’s parliamentarians during this time. Then, on 9 March, the nation’s military leadership declared itself ‘neutral’ between the opposition parties and the prime minister.
Khan criticized the military for taking a neutral stance, saying a vital institution of the state should not show “neutrality” to those openly and willfully being used as tools of regime change, orchestrated by the adversaries of Pakistan. But afterForeign Minister Shah Qureshi’s return from Beijing, the military now appears to be favoring Khan’s position. It seems that either a phone call or a message must have come directly from Beijing.
The Supreme Court has a record of controversial decisions
There have been instances when the courts were made to put their seal on the most controversial executive actions, including abrogation or suspension of the Constitution.
The direction of judiciary-executive relations was set by the 1955 verdict of the federal court, now the Supreme Court, in The Federation of Pakistan versus Moulvi Tamizuddin.
(1) In 1954, governor-general Ghulam Mohammad dismissed the first Constituent Assembly and the dismissal was challenged by its president Moulvi Tamizuddin in the chief court, now the Sindh High Court. The chief court declared the dismissal of the assembly invalid. However, headed by Justice Mohammad Munir, the federal court reversed the chief court`s decision on technical grounds.
(2) The second test of the independence of the judiciary came when the apex court was called upon to adjudicate on the legitimacy of the 1958 martial law regime in The State versus Dosso and Others.
The court, again headed by Justice Munir and drawing inspiration from Hans Kelsen`s doctrine of necessity, held that a successful revolution or coup d`etat was an internationally recognized method of changing a constitution.
Therefore, the Laws (Continuation in Force) Order 1958 promulgated by Gen Ayub constituted the new legal regime from which all legal instruments and institutions, including courts, derived their validity and legitimacy.
(3) The decision in the Dosso case came in for sharp criticism from the apex court itself in Asma Jilani versus Government of Punjab in 1972. The Supreme Court bench headed by Justice Hamoodur Rehman declared martial law imposed by Gen Yahya Khan as unconstitutional and incapable of being validated.
The court observed that it was difficult to appreciate under what authority martial law could be proclaimed. A military coup or a legal regime put in place by a military ruler was not legitimate by itself, and instead it acquired legitimacy only when courts recognised them as de jure.
The judgement created the hope that in future the judiciary would not put its seal on unconstitutional actions of the executive.
(4) In Begum Nusrat Bhutto versus Chief of Army Staff and Federation of Pakistan, the apex court in 1977 again declared a military coup, this time by Gen Ziaul Haq, legitimate on the basis of state necessity and welfare of the people.
(5) In the Haji Saifullah vs Federation of Pakistan case of 1989, the apex court declared that the dissolution of the assembly and removal of prime minister Mohammad Khan Junejo in 1987 was illegal.
However, since a new government had been elected by the time the judgment was pronounced, the court did not reinstate the dissolved assembly.
The Supreme Court upheld the dissolution of the assemblies and ouster of the then prime minister Benazir Bhutto under Article 58 (2b) of the Constitution in 1990and 1996.
However, in 1993, the Supreme Court reinstated Nawaz Sharif, striking down the dissolution order.
(6) The 1999 coup, which brought Gen Pervez Musharraf at the helm, was also indemnified by the judiciary, again under the doctrine of necessity.
The Supreme Court of Pakistan led by Chief Justice Saeeduzzaman Siddiqui, on May 12, 2000, validated the martial law under a “doctrine of necessity” but limited its legality to three years.One of the judges who sat on the Supreme Court bench that validated the coup was Justice Iftikhar Muhammad Chaudhry, who later became the chief justice of Pakistan.
Court adjourns hearing against Shehbaz Sharif
Telling when Shehbaz Sharif was taking oath as Prime Minister Special Judge Central Ejaz Hussain Awan in Lahore adjourned the hearing against Prime Minister-Elect Mian Shehbaz Sharif, his son, Hamza Shehbaz, indict them in a Rs14 billion money laundering case.
Advocate Amjad Pervaiz, on behalf of Shehbaz Sharif, submitted an exemption application and stated that his client was busy in Islamabad in connection with the National Assembly session. He pleaded with the court to exempt Shehbaz Sharif from personal appearance for one day.
The counsel submitted that he was going for Umrah and would return till April 25. He submitted that his client should not be indicted in his absence. Subsequently, the court adjourned hearing till April 27 and also extended the interim bail of Shehbaz Sharif and his son Hamza.
As tweeted by the official handle of the PTI party, Imran Khan said, “The man who has 16 billion and 8 billion rupees of corruption cases, whoever selects and elects the Prime Minister cannot be a bigger insult to the country. We are resigning from the National Assembly.”
In October 2018, in a dramatic turn of events, the country’s top accountability watchdog arrested Shehbaz Sharif over his alleged involvement in a multi-billion rupees housing scam, the Ashiyana-e-Iqbal Housing Project. Shehbaz was arrested by the National Accountability Bureau inside its Lahore office where he was summoned to record his statement before a combined investigations team in connection with the Punjab Saaf Pani Company case.
In December 2019, the National Accountability Bureau seized nearly two dozen properties belonging to Sharif and his son Hamza, accusing them of money laundering.
He was arrested and detained in September 2020, but released around six months later on bail for a trial which is still pending. He was released on bail in April 2021 in the money-laundering case.
In September 2020, Sharif was arrested by the National Accountability Bureau after the Lahore High Court rejected his bail plea in the same case. Shehbaz was taken into custody from the court’s premises.
It will be appropriate to recall that Shehbaz Sharif’s elder brother Nawaz Sharif was disqualified from holding public office in a landmark decision on the Panama Papers case in July 2017. The judges ruled that Nawaz had been dishonest to the parliament and the courts in not disclosing his employment in the Dubai-based Capital FZE company in his 2013 nomination papers, and thus, could not be deemed fit for his office.
It is not clear what encouraged, motivated and prompted the Chief Justice Umar Ata Bandial to actively, devotedly, enthusiastically and fervently support Shehbaz Sharif who remains on bail in corruption cases while his brother Nawaz Sharif also remains on bail in graft cases.
Abdus Sattar Ghazali is the Chief Editor of the Journal of America (www.journalofamerica.net) email: firstname.lastname@example.org