ISLAMABAD: The Supreme Court on Thursday resumed hearing the suo motu notice on the events of April 3 when National Assembly (NA) Deputy Speaker Qasim Shah Suri dismissed the no-confidence motion against the prime minister and President Dr Alvi dissolved the NA on the premier's advice.

A five-member bench, headed by the Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar and Justice Jamal Khan Mandokhel is hearing the case.

During today's hearing Senator Ali Zafar, representing President Dr Arif Alvi, was asked by Justice Miankhel if the prime minister was the people's representative. The lawyer replied in the affirmative.

Justice Miankhel then inquired if the premier would be protected if the Constitution was violated in parliament. "Is Parliament not the guardian of the Constitution?" he asked. He also questioned how justice would be awarded in case someone is affected due to parliamentary proceedings.

At this, Zafar replied that the Constitution must be protected in accordance with the rules underlined within it. He said that in order to protect the Constitution, each and every article had to be kept in mind.

Justice Bandial then asked what would happen when an injustice was carried out against the entire assembly, not just one member.

"Can Parliament interfere if there's a conflict between two judges," Zafar offered as a counter argument. "The answer is no. The judiciary has to settle the matter. It can't interfere just liked Parliament can't [interfere in judges' matters]."

The CJP also asked whether the formation of the federal government was the "internal matter" of Parliament.

Zafar said that the no-confidence motion and the prime minister's election fell within the ambit of Parliament. He said that the National Assembly is formed for the purpose of appointing a speaker and a prime minister.

He also referred to former PM Mohammad Khan Junejo's case, who was dismissed by ex-president Gen Ziaul Haq. "Junejo's government was dissolved and the court declared it unconstitutional," Zafar pointed out, adding that the court did not interfere in actions taken after the dissolution of the assembly.

However, Justice Miankhel said that the matter at present concerned the no-confidence motion. "A ruling came after the motion. Address this issue," he told Zafar. CJP Bandial also said that the verdict he was referring to was related to the oath. "Here the matter is about the ruling, not the oath. We have to draw a line somewhere."

However, Zafar argued that in this case too elections were announced after dissolving the assembly.

At one point, the CJP asked Zafar why he wasn't explaining whether or not there was a constitutional crisis in the country. " If everything is happening according to the Constitution, where is the crisis?" he asked.

Zafar replied that he also wished that there was no constitutional crisis in the country.

At the outset of the hearing, Punjab Advocate General Ahmed Awais brought the court's attention to the mock Punjab Assembly session held by the opposition on Wednesday where PML-N's Hamza Shehbaz was declared the new chief minister of the province.

He said that former Punjab governor Chaudhry Sarwar would administer the oath to Hamza at a ceremony at Bagh-i-Jinnah, adding that the PML-N leader had also called a meeting a bureaucrats for today. He contended that the Constitution was a "trivial matter" for the PML-N.

However, the CJP asserted that the apex court would not give any orders regarding the situation in Punjab and advised the counsel to take the matter to the high court.

Meanwhile, Justice Miankhel noted that the doors of the Punjab Assembly were sealed on Tuesday and wondered it this was allowed. However, the CJP reiterated that the court would not divert attention from the case at hand.

During yesterday's hearing, PTI’s lawyer Babar Awan as well as Senator Ali Zafar, representing President Dr Arif Alvi, had argued before the Supreme Court. Today, the court is expected to hear the arguments of Attorney General for Pakistan (AGP) Khalid Jawed Khan and Naeem Bukhari the counsel for NA Speaker Asad Qaiser.

Justice Bandial on Wednesday observed that even though Article 69 of the Constitution bars interference in parliamentary proceedings, what happened on April 3 was unprecedented.

“The no-confidence resolution which had a constitutional backing and liable to be succeeded was scuttled at the last minute,” the CJP regretted, adding that if “we permit such a deviation” then it would amount to what Advocate Salahuddin Ahmed had referred to on Tuesday.

Representing the Sindh High Court Bar Association, Advocate Ahmed had cited a 1933 incident when the speaker of the then German assembly, while branding members of the Communist Party as traitors, allowed voting on a constitutional amendment that vested Adolf Hitler and his cabinet with unlimited powers to bring any law without a formal approval of German parliament. That development led Germany's descent into fascism, the lawyer had recalled.

During the hearing, PML-N Senator Azam Nazir Tarar drew the court’s attention to the precarious situation in Punjab where the provincial assembly secretariat was sealed despite the calling of the session by the deputy speaker. Advocate Imtiaz Siddiqui, who represents the interim prime minister, however, declared the notification as fake.

At this, CJP Bandial said if the system was not functioning then the constitutional functionaries had the authority to assemble anywhere, even at Bagh-i-Jinnah, to hold the session, instead of the assembly hall. He observed that the court didn’t want to get distracted by the situation in Punjab, adding that if “you people are at loggerheads with each other then go to the political sovereign”.

They should learn from the conduct of the National Assembly members who come to the court daily without making any noise and stand here with grace and dignity, the CJP said, adding that the provincial assembly members should find their own solution.

Justice Bandial observed that though the NA deputy speaker’s ruling, according to the lawyer, might be flawed, it was protected under Article 69 of the Constitution. Eventually, the ruling later led to dissolution of the National Assembly for fresh elections.

“Where is the malice if this development is not anti-democratic,” the CJP wondered, but then said there was an element of trickery and if the members had any grouse then why were they afraid of fresh elections?

Justice Mandokhel observed that when political parties believed that floor crossing was malice and all the political parties had suffered in the past, then they must discover the weaknesses which encouraged members to change loyalties and should find a solution by concentrating on institution building.

He said the court would decide the present case in the interest of the country that would be binding upon all. He wondered why the entire assembly was thrown out instead of inquiring about the conduct of those who connived with a foreign state to dislodge the government.

Justice Akhtar recalled that the UK Supreme Court had ruled the other day that it was the court which would determine the privileges of members of parliament.

Senator Ali Zafar argued that the law of parliamentary privileges had been developed in the context of the principle of trichotomy of powers, under which parliament had certain privileges — the fundamental and foremost privileges are that parliament is the sole and exclusive judge and master of its own proceedings and business and no decisions or rulings made while conducting parliamentary proceedings or business were justiciable.

The president’s counsel cited a recent speech of Justice Maqbool Baqar who emphasised the delicate balance between institutions through mutual balance like honeycomb. He said it was also part of parliamentary privileges that no officer, including the deputy speaker, was subject to jurisdiction of courts in respect of parliamentary privileges or proceedings.

The law on parliamentary privileges is the same as that of the UK House of Commons.

“It is only if a proceeding is outside the scope of proceedings in parliament that the court can examine,” Zafar argued, adding that the Supreme Court could look into the subsequent development of the dissolution of the National Assembly on the advice of the prime minister but not the ruling of the deputy speaker.

“The vote of confidence is clearly a matter of proceedings in the National Assembly and any ruling passed by the speaker or deputy speaker in respect thereof or during the same is not justiciable,” he said.

“In view of the constitutional crisis, the best and the only solution lies with the ultimate sovereign i.e. the people of Pakistan,” he argued, adding that the only remedy available was election.

“Since the appeal has been made to the people of Pakistan and elections are to take place in 90 days, as per the established practice and prudence established by the courts, it should not be interfered at this stage and let the people decide.

“The dissolution of the assemblies is an independent act undertaken by the president under Article 48(5), read with Article 58. At the time, no resolution of no confidence was pending against the prime minister and, hence, the dissolution cannot be questioned under Article 48(4),” the counsel emphasised.

Zafar pointed out that when the elections of the Senate chairman was challenged in the Islamabad High Court, it had ruled that the constitutional elections in parliament were protected [from judicial intervention] as well.

He said the court could only review the speaker's ruling on the no-confidence motion if it decided to not consider it a parliamentary proceeding.

"What if the votes are not enough but the speaker announces that the no-confidence motion has succeeded?" Justice Mandokhail asked. "What will happen then?

"These may be parliamentary issues but the court cannot monitor the parliament." The lawyer contended that the parliament should be given a chance to solve its issues itself.

The CJP observed that Zafar's argument that the speaker's ruling was protected even if it was wrong was interesting. "After the ruling, the NA was dissolved and fresh elections were announced," the CJP noted, adding that "it was decided to go to the public."

The CJP said that the lawyers of PML-N would be asked what the issue was in going to the public. Justice Ahsan then asked how someone's rights were affected by going into elections. At this point, the CJP reiterated that the case concerned the violation of Article 95 of the Constitution.

"The SC can intervene wherever the Constitution is breached," Justice Bandial said, but added that "we respect the sanctity of parliament."

On Sunday, CJP Bandial had taken suo motu notice of the situation after the deputy speaker's dismissal of the no-confidence motion against the premier, clubbing multiple petitions filed by various parties with it.

After a brief hearing, a written order was issued which said the court would like to "examine whether such an action (dismissal of the no-trust motion on the basis of Article 5) is protected by the ouster (removal from the court's jurisdiction) contained in Article 69 of the Constitution."

Article 69 of the Constitution essentially restricts the court's jurisdiction to exercise authority on a member or officer of parliament with respect to the functions of regulating parliamentary proceedings or conducting business.

"No officer or member of Majlis-i-Shoora (parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-i-Shoora, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers," clause two of the Article reads.