Chief Justice of Pakistan (CJP) Umar Ata Bandial has observed that the no-confidence motion against Prime Minister Imran Khan was backed by the constitution yet what happened on 3 April was unprecedented when Deputy Speaker Qasim Suri prorogued the National Assembly without voting on the resolution.
"The no-confidence resolution which had a constitutional backing and liable to be succeeded was scuttled at the last minute," the CJP remarked on Wednesday, adding that upon permitting such deviation it would amount to what Advocate Salahuddin Ahmed had referred to a day earlier.
Advocate Ahmed - while representing the Sindh High Court Bar Association before a five-judge Supreme Court bench hearing the case of the deputy speaker's 3 April ruling on the no-confidence motion - had cited a 1933 incident when the speaker of the then German assembly, while branding members of the Communist Party as traitors allowed voting on a constitutional amendment that vested Adolf Hitler and his cabinet with unlimited powers to bring any law without a formal approval of German parliament. That development led Germany to descent into fascism, the lawyer had recalled.
On Wednesday, PTI's lawyer Babar Awan as well as Senator Ali Zafar - representing President Dr Arif Alvi - argued before the Supreme Court, DAWN reported.
Justice Bandial observed that though the NA deputy speaker's ruling, according to the lawyer, might be flawed, it was protected under Article 69 of the Constitution. Eventually, the ruling later led to the dissolution of the National Assembly for fresh elections.
"Where is the malice if this development is not anti-democratic," the CJP wondered, but then said there was an element of trickery and if the members had any grouse then why were they afraid of the fresh elections?
Justice Jamal Khan Mandokhel observed that when political parties believed that the floor-crossing was malice and all the political parties had suffered in the past then they must discover the weaknesses which encourage the members to change loyalty and should find some solution to it by concentrating on institution building.
He said the court would decide the present case in the interest of the country that would be binding upon all. He wondered why the entire assembly was thrown out instead of inquiring the conduct of those who connived with a foreign state to dislodge the government.
Justice Munib Akhtar recalled that the UK Supreme Court had ruled the other day that it was the court that would determine what privileges of the members of parliament would have.
Senator Ali Zafar argued that the law of parliamentary privileges had been developed in the context of the principle of trichotomy of powers, under which parliament had certain privileges — the fundamental and foremost privileges are that parliament is the sole and exclusive judge and master of its own proceedings and business and no decisions or rulings made while conducting parliamentary proceedings or business were justiciable.
The president's counsel cited a recent speech of Justice Maqbool Baqar who emphasised the delicate balance between institutions through mutual balance like a honeycomb. He said it was also part of parliamentary privileges that no officer, including the deputy speaker, was subject to the jurisdiction of courts in respect of parliamentary privileges or proceedings.
The law on parliamentary privileges is the same as that of the UK House of Commons.
"It is only if a proceeding is outside the scope of proceedings in parliament that the court can examine," Mr Zafar argued, adding that the Supreme Court could look into the subsequent development of the dissolution of the National Assembly on the advice of the prime minister but not the ruling of the deputy speaker.
"The vote of confidence is clearly a matter of proceedings in the National Assembly and any ruling passed by the speaker or deputy speaker in respect thereof or during the same is not justiciable," he said.
"In view of the constitutional crisis, the best and the only solution lies with the ultimate sovereign i.e. the people of Pakistan," he argued, adding that the only remedy available was election.
"Since the appeal has been made to the people of Pakistan and elections are to take place in 90 days, as per the established practice and prudence established by the courts, it should not be interfered at this stage and let the people decide.
"The dissolution of the assemblies is an independent act undertaken by the president under Article 48(5), read with Article 58. At the time, no resolution of no confidence was pending against the prime minister and, hence, the dissolution cannot be questioned under Article 48(4)," the counsel emphasised.