ISLAMABAD: With all eyes on the apex court for a resolution of the political quagmire that emerged on Sunday, the Supreme Court ordered all state functionaries and authorities — as well as political parties — to refrain from taking any advantage of the current situation and stay strictly within the confines of the Constitution, in accordance with a 2009 judgement in the Sindh High Court Bar Association (SHCBA) case.

“In fact, today’s order is an effort to block attempts that may lead to any misadventure or even martial law in the country,” commented a senior counsel on condition of anonymity soon after the hearing.

In a late-evening session convened on the weekend, a three-judge SC bench consisting of Chief Justice Umar Ata Bandial, Justice Ijaz-ul-Ahsan and Justice Muhammad Ali Mazhar also made it clear that any decision passed by the president or the prime minister would be subject to the order of the court.

Taking suo motu notice of the issue, the Supreme Court issued notices to Attorney General of Pakistan (AGP) Khalid Jawed Khan and Punjab advocate general under Section 27A of the PPC and fixed the matter for hearing today (Monday) before a larger bench of five judges.

The court issued notices to President Dr Arif Alvi as well as other respondents in a joint petition moved by the PPP, PML-N and JUI-F, the Supreme Court Bar Association (SCBA) and PPP secretary general Nayyar Bokhari. Notices were also issued to the secretaries of interior and defence with an observation that it would be appropriate to take up the matter in view of the present situation.

The court wondered how Article 5 — which demands loyalty to the state — was invoked by the deputy speaker without any hearing or findings.

In its 2009 judgement, the Supreme Court had denounced successive military takeovers during the past four decades and their endorsement by the superior judiciary and declared former president Gen Pervez Musharraf’s second coup through Emergency Order of Nov 3, 2007 as illegal and unconstitutional.

The verdict had also held the Nov 3, 2007 emergency as “not condonable” act and ruled that illegal acts would always remain illegal even if not challenged in the court, or in the streets, or in the political arena — even when disgruntled elements burst with joy over the “unconstitutional ouster of those in power by means of imposition of martial law or emergency”.

Despite it being a holiday, Courtroom No. 1 was packed to the brim. The bench observed that all political parties would maintain restraint while the law enforcing agencies would ensure complete peace, tranquillity and public order and no state functionary or authority would take any unconstitutional action.

Almost all members of the treasury benches attended the court proceedings.

During the hearing, senior advocate Sardar Latif Khosa suggested suspending the advice of the prime minister to dissolve the National Assembly.

When the attention of the court was drawn to the Punjab Assembly session, the Supreme Court made it clear that the same order would also apply to the situation that had emerged in the provincial assembly, where the election of chief minister had been adjourned to another date, directing the Punjab advocate general to explain the situation.

The court observed that it was conscience of the Constitution and since it had to uphold the Constitution, it could not cross the line regarding proceedings of the assemblies, but cautioned the lawyers representing different petitions not to get emotional.

When SCBA president Ahsan Bhoon informed the court that some 200 members of the opposition had held an assembly session and suspended the ruling of the deputy speake, the CJP observed that he would expect opposition lawmakers to conduct themselves with dignity and grace and not sit in the assembly the whole night.

In the order, the CJP recalled how several judges met him earlier in the day to share their concern about the constitutional situation following the rejection of the motion of no-confidence against the prime minister by the deputy speaker under Article 5 of the Constitution. In view of the consensus reached during the meeting, Article 184(3) of the Constitution was being invoked to initiate original proceedings, the court order said.

The order said the court would like to examine whether the ouster contained in Article 69 of the Constitution protected the action of invocation of Article 5 in the ruling in which no finding was recorded or any hearing was given to the affected party. Article 5 places a bar under which the validity of any proceedings in parliament could not be called in question.

The joint petition, filed by the PPP, PML-N and JUI-F through Farooq H. Naek, Azam Nazir Tarar and Kamran Murtaza, requested the apex court to declare the ruling of the deputy speaker, as well as the advice of the prime minister to the president under Article 48(1) of the Constitution to dissolve the National Assembly and the subsequent dissolution of the assembly as illegal and unconstitutional.

Published in Dawn, April 4th, 2022