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ISLAMABAD: The Supreme Court has said the suo motu on the National Assembly deputy speaker’s ruling on no-confidence motion was taken as the majority of the judges had the opinion the court should intervene in this matter.

Chief Justice Umar Ata Bandial, heading a five-judge bench, said I consulted the matter with the brother judges (12) and they asked him that the matter is of constitutional importance and the apex court must intervene.

Deputy Speaker National Assembly Qasim Suri on April 3 refused to accept a motion to debate the vote on no-confidence against Prime Minister Imran Khan terming it a violation of the Constitution. Soon after that Khan in a brief address to the nation, said he had advised President Arif Alvi to dissolve the National Assembly and call for fresh elections.

The bench heard the Presidential Reference for interpretation of Article 63A of the Constitution, Supreme Court Bar Association petition. The bench on the PTI chairman’s petition issued notices to the respondents. The former prime minister and Chairman PTI Imran Khan on April 14 filed a petition under Article 184 of the Constitution and cited the Election Commission of Pakistan (ECP), the speaker National Assembly, the secretary Cabinet Division, and the secretary Ministry of Law and Justice as respondents.

The chief justice told advocate Babar Awan, who was representing PTI Chairman Khan, that the court is not dealing with the individual cases which involve the facts. “We are not concerned about [PTI] 21 MNAs and the 26 MPAs.”

Justice Bandial inquired from the PTI counsel why his party did not approach the apex court against the ECP when it took no action against the Senators (alleged to have taken money in Senate election) as per the opinion of the Supreme Court on Presidential Reference. He said the Supreme Court’s jurisdiction is not invoked by writing letters or protest rallies. He was alluding to a letter written by the Punjab Governor to the COAS regarding the Punjab CM election, and the PTI protests outside the ECP offices for their demands to take action against PTI dissenters.

“We are not an executive authority.” “The judgment is delivered on post-facto events and don’t take anticipatory action.” “We have curtailed the suo motu jurisdiction and have settled the principle to use this power,” the chief justice further said. He said the suo motu is taken with good faith, as suo motu on Reko Diq was taken on the basis of huge evidence. He said according to Makhdoom Ali Khan the executive did not furnish this evidence to the Arbitrator, therefore, the decision came against Pakistan.

Justice Bandial said they are very careful in taking suo motu. He asked Babar Awan not to confuse things that the Court has not taken suo motu on so and so issues. He said the Court took suo motu on Steel Mills because the executive failed to perform its duty.

The chief justice remarked if in a criminal case the prosecution does not provide evidence against an accused then would the Court not acquit him? He asked Babar Awan to focus on the question raised in the Presidential Reference i.e. what is the purpose of Article 63A, and what other solutions are available without changing the Constitution.

Justice Ijazul Ahsan asked the counsel that you are saying it was the ECP’s laxity as it took no action as per the Supreme Court’s opinion in Reference on Senate Election. He said if the Supreme Court judgment is not implemented then do not blame the courts. “When you (executive) are wrong then must admit. We are not condemning you or your client,” the judge further told Awan.

The counsel said what about the “Gallery wala election,” a reference to the voting for CM Hamza Shehbaz in the Punjab Assembly. Justice Ijaz responded as you (PTI) and other (PML) parties would ultimately come before the Supreme Court, therefore, do not like to come on this issue. He said it does not suit anyone to disparage the court.

Awan argued that remarks were passed against the President of Pakistan, but he remained quiet. The chief justice said if he (President) wants remedy then can approach the Court, as we respect and have to defend the Constitution and the constitutional institutions.

Justice Jamal Khan Mandokhel said the lawyers in the political parties should tell the party leaders about the Constitution.

Earlier, Awan raised the preliminary questions pertaining to the effect of the Article 63A provision by juxtaposition with the Articles 62, 63, 64 and the Preamble of the Constitution. The Court needs to examine whether Article 63A has an ethos that goes beyond the effect of the consequences of the provision of the Constitution or whether such ethos needs a holistic interpretation of the Articles of the Constitution.

The chief justice said they have to interpret the Constitution not only for the present case but for future generations. He asked Awan to assist whether the Constitution condones such action which has been described in Article 63 of the Constitution or does it curtails the action and also provides for consequences.

At the conclusion of the proceeding, Additional Attorney General Amir Rehman informed the court that the summary has been sent to the President for the appointment of Ashtar Ausaf as the new Attorney General for Pakistan.

PML-N lawyer Makhdoom Ali Khan sought a delay in the hearing as he would return to Pakistan on May 15, but the bench asked him to return early as the case could not be delayed for that long.

The court said it will also listen to Azhar Siddique, the PTI counsel, after Awan. Awan urged the court to read articles 62 and 63 together. The PTI leader said he would assist the court in the constitutional debate regarding the case. The additional attorney general said that the attorney general also wanted to present his arguments in the case.

During the hearing, Justice Mandokhel said the Constitution did not lay down the period of disqualification as a result of the violation of Article 63-A but the court could specify that. Awan said the presidential reference was filed against 26 MNAs and 24 MPAs who allegedly switched loyalties.

The case was adjourned until Tuesday (May 10).

Copyright Business Recorder, 2022


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