By acceding to the advice of the prime minister who torpedoed the motion of no confidence, the President too violated the Constitution in view of the explicit constitutional provision.

The unanimous judgement of the five-member bench of the Pakistan Supreme Court to revive the NA and the motion of no confidence, shows once again and beyond doubt how robust and independent the apex judiciary is in an otherwise facile democracy, a failed State, and the home of ubiquitous non-state actors.

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A five-member bench of the Supreme Court of the Islamic Republic of Pakistan, headed by Chief Justice Umar Ata Bandial, has declared unanimously that the decision of the Deputy Speaker of the National Assembly of Pakistan dismissing the motion of no-confidence against the Council of Ministers headed by Imran Khan and the dissolution of the assembly is unconstitutional.

Contextually, in February 2021, the Supreme Court of Nepal had reinstated the country’s parliament which was dissolved on the recommendation of prime minister K P Oli, leading to his resignation, and swearing in of a new Prime Minister. A similar fate awaits Imran Khan. In Pakistan, the fate of the Imran Khan government appeared sealed as during the hearing the Chief Justice had made a sharp observation that the dismissal of the motion was violative of Article 95 of the country’s Constitution.

Article 95 clearly and unambiguously states that if a resolution of no-confidence is passed against the prime minister by a majority of the total membership of the NA, the prime minister shall cease to hold office. The Chief Justice reminded the government counsel that ‘Obedience to the Constitution and law is the inviolable obligation of every citizen’, and more so of the Speaker in view of the express provision enshrined in Article 5. Interestingly, under Article 6, any person who abrogates or subverts or suspends the Constitution or aids or conspires in such an act, shall be guilty of high treason, the Chief Justice specifically observed in open court.

On April 3, the motion of noconfidence was rejected by the Deputy Speaker, claiming that it was a “foreign conspiracy” to topple the Imran Government. The Speaker is expected to preside over the Assembly on such a historic occasion unless he is physically debilitated. The Speaker did not preside over the sitting of the NA. But, according to media reports, the text dismissing the motion which was read by the Dy Speaker had the approval of the Speaker. If so, both of them can be tried for high treason. Though not bound to act on the advice of the prime minister, President Alvi immediately dissolved the assembly and notified that elections would take place within the next 90 days.

Simultaneously, the President issued an order de-notifying Imran Khan as the prime minster with immediate effect, but issued another order later, asking Imran Khan to continue as interim prime minister until a “caretaker prime minister” is chosen under Article 224 A. Imran Khan proposed the name of former Chief Justice of Pakistan, Gulzar Ahmed as the caretaker PM which was rejected outright by the Opposition.

The Opposition took the matter to the Supreme Court praying that the Assembly be revived, and the motion of no-confidence voted on by the NA. Chief Justice Bandial made it known during the pendency of the suit that all orders and actions initiated by Imran Khan and the President regarding the Court’s order.

Under Article 224A (1) of the Constitution, the President is empowered to appoint the caretaker prime minister in consultation with the incumbent prime minister and the leader of the Opposition. If there is no consensus between the prime minister and the opposition within three days of the dissolution of the NA, then two names will have to be sent to the committee formed by the Speaker. The committee, so constituted, will have a total of eight members from the NA and the Senate and will have equal representation from the Government and the Opposition.

The committee members are nominated by the prime minister and the leader of the Opposition. In case the committee fails to appoint a caretaker prime minister, the president takes a decision in consultation with the Election Commission. This provision was enshrined in the Constitution vide the 20th Constitutional Amendment in 2012. Bangladesh too had a similar constitutional provision which was omitted by the Sheikh Hasina Government. This is in sharp contrast with the practice in India and the Westminster system of democracies where the extant prime minister continues as caretaker.

Shehbaz Sharif, Opposition Leader in the NA, three-time chief minister of the Punjab province and younger brother of former prime minister Nawaz Sharif, has said that Imran Khan and NA Speaker Asad Qaisar will be tried under Article 6 of the Constitution once their government falls. Qasim Suri, the Dy Speaker, who read the order of dismissal of the no-confidence motion, is equally liable to face trial for committing high treason. This is imminent after the judgement of the Supreme Court, whether Imran Khan loses the vote of no confidence or resigns without facing the motion.

Notably, despite a clear constitutional provision enshrined in Article 48, the President acted on the advice of the Prime Minster who did not face the motion of no confidence. The explanation clause to the Article says that, “Reference in this Article to ‘Prime Minister’ shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no-confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly.”

By acceding to the advice of the prime minister who torpedoed the motion of no confidence, the President too violated the Constitution in view of the explicit constitutional provision.

The unanimous judgement of the five-member bench of the Pakistan Supreme Court to revive the NA and the motion of no confidence, shows once again and beyond doubt how robust and independent the apex judiciary is in an otherwise facile democracy, a failed State, and the home of ubiquitous non-state actors. This brings back to memory the refusal of Chief Justice Iftikhar Mohammad Chaudhary and some other judges who refused to take oath under the Provisional Constitutional Order issued by President Pervez Musharraf in 2007, and preferred to relinquish their office.

The constitutional crisis will blow over but the trial for high treason will bring back acrimony and drive Pakistan into the vortex of great political turmoil and internecine hostilities.

(The writer is ex Addl Secretary, Lok Sabha and a member of Delhi Bar Council)