ISLAMABAD - The Supreme Court of Pakistan has held that the ruling of the Deputy Speaker and the subsequent actions of then PM Imran Khan and President prima facie infringed the fundamental rights of the opposition parties and the public at large.

A five-member bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijaz ul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhail Wednesday said this in the detailed judgment of their short order on Deputy Speaker Qasim Suri’s ruling to reject the no-confidence motion against Prime Minister Imran Khan.

The Supreme Court on April 7 unanimously had set aside the ruling of the National Assembly Deputy Speaker Qasim Suri, restored the National Assembly to its position of April 3, and held Prime Minister’s advice to the President to dissolve the Assembly was contrary to the Constitution and of no legal effect.

The judgment said that the summary dismissal of the Resolution of No Confidence (RNC) by the Deputy Speaker on 03.04.2022 on which basis the President, whilst following the advice of the PM, dissolved the NA prima facie contravened not only the express command of Article 95 of the Constitution but also repudiated the rule of law which is an indispensable foundation of parliamentary democracy envisaged by the Constitution. In the result, the Deputy Speaker’s ruling and the actions of the PM and the President defeated the right of the Opposition Parties to test their voting strength in support of the RNC and if successful, to form the next Government in exercise of their fundamental right under Article 17(2) of the Constitution.

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It added that rather than following the constitutional course prescribed in Article 91(4) of the Constitution for the election of a new Prime Minister, the people were unlawfully forced into an election due to the prima facie unconstitutional dissolution of the NA at the hands of the Deputy Speaker and the PM. A constitutional crisis was, therefore, created in the country on 03.04.2022. The political void in governance and uncertainty that ensued affected every single citizen of Pakistan, all of whom were caught in the turmoil that loomed large in the country.

The apex court further said that on the issue of the cypher, on the basis of that the deputy speaker had rejection the no-confidence resolution against Imran Khan, the judgment noted that when national security is taken as a defence to sustain a decision by the Government that is prima facie unconstitutional then the government is under an obligation to substantiate the bona fides of its defence.

Voting on no-confidence, Assembly dissolution

Detailed verdict says contents of cipher were shown to neither apex court nor assembly

It continued that to do so the government must produce evidence to demonstrate the defence in order to escape legal scrutiny of its impugned action. However, in their case before us the Respondents have rested their entire defence of national security and claims of ‘blatant foreign interference in the internal affairs of Pakistan’ solely on the cypher.

The judgment noted that the contents of the cypher have not been shown either to us or the members of the NA who are accused of being involved in a foreign conspiracy against Pakistan. Nor has other evidence been provided, either to us or the NA, detailing the names of the members of the NA associated with the alleged conspiracy and the inducement, coercion or influence used by them to procure other members of the NA, including political parties in the ruling alliance, to vote for the RNC.

It said that the detailed reasons given by the Deputy Speaker on 03.04.2022 are also ambivalent about the contention that members of the Opposition Parties are involved in the foreign SMC 1 of 2022; Const P Nos.3-7 of 2022 37 conspiracy against the PM. Indeed, the detailed reasons accept that the allegation against the Opposition Parties requires probe The said observation made by the Deputy Speaker acknowledges that the material shown to him was either incomplete, insufficient or inconclusive. This is also evident in the factual matrix set out in the detailed reasons which notes the chronology of the RNC but fails to refer to any person in Pakistan, by name or otherwise, who is alleged to be involved in a scheme with a foreign State to move the RNC.

It also said that this is possibly the reason why the Deputy Speaker recommended a thorough investigation in the matter to corroborate the stance of the PM and the Law Minister that a foreign conspiracy was brewing against the Government of the day with the help of members belonging to the Opposition Parties. However, despite receiving the cypher on 07.03.2022 the information conveyed in it was neither investigated by the Government nor were its contents alluded to during the sittings of the NA on 28.03.2022 and 31.03.2022.

The judgment said that the allegations levelled against the members of the Opposition Parties were also not put to them. It was only on 03.04.2022, when the RNC was fixed for voting as per the Orders of the Day, that the Law Minister raised this matter for the first time before the NA and asked the Deputy Speaker to give a decision on the constitutionality of the RNC.

It stated that additionally, according to a press statement given by the Law Minister on 02.04.2022, as reported by the Daily Express Tribune, the Cabinet formally gave its approval to constitute a Commission under the Pakistan Commissions of Inquiry Act, 2017 to probe into the alleged foreign conspiracy.

The bench said that the said decision by the government also prima facie indicates the insufficiency of the available evidence, if any, to justify its claim that the RNC was dismissed by the Deputy Speaker on the ground of national security. Therefore, due to dearth of material we are unable to accept the said plea or issue a finding on its merits.

It also said that under Article 95(2) the Deputy Speaker had 7 days from 28.03.2022, when the RNC was moved in the NA, to take a vote on the RNC. This gave him time till 04.04.2022 to conduct a vote on the RNC. Therefore, when the Law Minister raised the point of order on 03.04.2022 regarding the cypher and the unconstitutionality of the RNC, the Deputy Speaker had the opportunity to put the matter before the NA for discussion on the contents of the cypher and its effect, if any on the RNC.

The SC said that, however, without hearing any other member of the NA and without taking a vote on the RNC, he simply dismissed the latter on the basis of the singular statement of allegations made by the Law Minister. In so doing, the Deputy Speaker not only disregarded the provisions of Article 95 of the Constitution but also ruled on Article 5 ibid which was a matter outside his cognisance and jurisdiction. This is apart from condemning the members of the Opposition Parties against whom serious allegations of disloyalty to the State and disobedience of the Constitution were levelled by the Law Minister. 37. It is a settled principle of law that Courts decide disputes on the strength of established facts and not on surmises or mere conjectures.