JUSTICE KNOWS NO BOUNDS: AN ANALYSIS OF THE APRIL 2022 CRISIS

“The ruling of the Deputy Speaker of the National Assembly…are declared to be contrary to the Constitution and the law and of no legal effect, and the same are hereby set aside”[1]

These were the words uttered by the Chief Justice of Pakistan while passing a unanimous verdict in the Suo Motu No. 1 of 2022, upholding the integrity of the Constitution of Pakistan, 1973.

The fiasco that surfaced on the floor of the National Assembly on 3rd April 2022, after the undemocratic ruling of the deputy speaker, emerged into a constitutional crisis leading to the dissolution of the assembly via an arbitrary move[2] made by the incumbent Prime Minister of Pakistan only to avoid the motion of the No-Vote of Confidence[3] (hereinafter, referred to as “NVC”) was immediately taken up by the Apex Court in form of a suo motu.?

In February 2022, the reigning Honourable Chief Justice of Pakistan, Mr. Umer Atta Bandial took the seat of the premier and just in this very first suo motu of his tenure, the essence of this discretionary power was ‘aptly utilised’[4]. This apt utilization is only possible when there is no transgression by the judicial organs into the affairs of executive and legislature but in past there had been instances[5] where this line was blurred. Many acclaimed judicial activists while adjudicating over matters relating to public importance[6] contravened and stepped into the arena of judicial adventurism[7] and this is where the role of an impartial judiciary comes into question.

Undoubtedly, while the adjudication over the matter of an unconstitutional ruling passed by the deputy speaker also warranted questions of judicial imperialism[8] as the constitution has barred the intervention of courts into the matter of parliament[9]. However, the apex court still decided to rely upon the exception and pass a verdict which not only upheld the rule of law but saved the country from a democratic and constitutional crisis. The scope of non-intervention is limited[10] to the “ground of any irregularity of procedure”. Therefore, it is crucial to interpret the term of procedural irregularity in the purposive sense to achieve the sacred spirit of the constitution[11]. The privileges and immunities attached to the sanctity of the legislature, members and officers are governed by the prescribed limits[12] of the constitution and certainly the constitution does nowhere mentions about the blanket immunity. Thus, the proceedings would not be protected if they are held in defiance[13] of the provisions of the Constitution or are conducted by exercising some powers that does not possess.

The unconstitutional ruling of the deputy speaker, de facto, falls within the ambit of ‘internal proceedings’ of the parliament and might be construed as a procedural irregularity but as the Supreme Court held[14] that the scope of such an irregularity is difficult to define as to what constitute 'internal proceedings' but this much is clear that they do not extend to ‘anything and everything’ done within the House. Thus, as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice[15]. Therefore, in such a situation it is the duty of courts to intercept and save the interest of masses from the whims of an unconstitutional and undemocratic move.

At this stage, it is imperative to note, as held[16] by the Top Court that the parliament, its internal proceedings, members and officers do not possess the powers of omnipotence rather being a creature of the constitution they also had powers limited to the ones conferred upon them by the said instrument. This shows the supremacy of the sacred document and the obligation to abide by it. The violation of the constitution, either by the speaker of the House or by the premier, does not only carry severe legal implications but also bring contemptuous effects. The Supreme Court in the past has also held[17] the decision of the speaker of the National Assembly was justiciable before courts of competent jurisdiction and a legally or factually incorrect decision could be set aside.

The only way for the Apex court to save the unconstitutional ruling of the deputy speaker from meeting the fate of nullity was to resort to the Doctrine of Necessity. The usage of this doctrine has been numerous times made in past to provide protection to the extra-constitutional and legally overarching actions of the administrative authority and forcibly containing such actions within the bounds of law. However, a restraint has also been witnessed by classifying it as the “doctrine of necessity alien to rule of law”[18].

Nonetheless, an eight member bench of the Apex Court refused to entertain this doctrine and remarked[19] that “doctrine of necessity which has already been buried because of valiant struggle of the people of Pakistan…Political stability and the rule of law will flow as a natural consequence of giving sanctity and respect to the Constitution, both in letter and in spirit”. After this landmark verdict in the suo motu case of deputy speaker ruling, a more certainty has been brought to law by reinforcing the restraint on the use of doctrine of necessity and this would definitely bring more trust in the eyes of public for the judiciary.

The detailed order is still awaited in the instant case[20] but in compliance of the short order of the five members bench dated 7th February 2022 the NVC was successfully held in the National Assembly after a major full day political discourse on 9th April 2022 and the 22nd Prime Minister was ousted. Once again, the judiciary was on the verge of intervention as there was significant opposition from the government in holding a vote on motion for NVC and the doors to justice were opened midnight which raised serious questions on the credibility of the legal system in terms of failing to prioritise the backlog of cases instead acting under the alleged directions of the ones in authority.

As an adolescent and emerging lawyer, with limited knowledge of law, I was once asked to distinguish between a matter of “grave emergency” and “a (mere) emergency”. I failed to understand the thin line between the two situations then but now when I see a threat to the state security and public interests being at stake, my mind unconsciously characterize it as a matter of grave emergency because the time is of essence then and the loss would be great if the matter is not given due importance. On the contrary, the recurring issues in every country such as but not limited to theft, assault, fraud and similar crimes are known to be as matter of (mere) emergency which require investigation, inspection and registration with the law enforcing agencies. Thus, as per my whims and fancies, state organs should be working incessantly but they cannot because constitution is the supreme law from where the justice is dispensed irrespective of any rule or time.

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[1] SUO MOTO CASE NO.1 OF 2022 (Re: ruling by the Deputy Speaker of the National Assembly under Article 5 of the Constitution qua voting on No-confidence Motion against the Prime Minister of Pakistan)

[2] Article 58 r/w article 48 of the Constitution of Pakistan 1973

[3] Ibid, Article 95

[4] Darshan Masih Case (PLD 1990 SC 513), Environmental pollution (PLD 1994 SC102), M.Ghulam Sarwar Naqvi (PLD 1990 SC 1) and others

[5] 2008 PLD 178 SC; Tika Iqbal Muhammad Khan vs General Pervez Musharaf

[6] Article 184(3) of the Constitution of Pakistan

[7] 2021 PLD 571 SC; Mian Irfan Bashir vs The Deputy Commissioner (D.C.), Lahore

[8] Ibid

[9] Supra n.2, Article 69

[10] 1989 PLD 25 QHC; Muhammad Anwar vs Province of Balochistan

[11] 2002 YLR 2209 PHC; Nawab Khan Khattak vs Public Accounts Committee

[12] Such as Article 68, supra n. 2

[13] Anand Bihari Mishra v. Ram Sahay (AIR (39) 1952 Madhya Bharat 31 (Gwalior Bench)

[14] PLD 1970 Supreme Court 98; Lt. Col. Farzand Ali Case

[15] Observations of Stephen, J. in Bradlaugh v. Gossett at P.283; 1884 12 QBD. 271

[16] 2015 PLD 401 SC; District Bar Association, Rawalpindi vs Federation of Pakistan

[17] 2017 PLD 265 SC; Imran Ahmad Khan Niazi vs Mian Muhammad Nawaz Sharif

[18] Justice Athar Minaullah remarks in 2019 PLD 365 IHC; Shahzada Sikandar Ul Mulk vs CDA

[19] 2012 PLD 466 SC; Syed Yousaf Raza Gillani VS Assistant Registrar, Supreme Court Of Pakistan

[20] at the time of writing this article dated 14.04.2022