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Wednesday, July 04, 2012
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Following is the text of Separate Note of Justice Jawwad S. Khawaja in the Supreme Court’s detailed judgment in the NA Speaker ruling case.

 

Jawwad S. Khawaja, J. I have gone through the reasons given by Hon’ble the Chief Justice and by my learned brother Khilji Arif Hussain, J. in support of the short order dated 19.6.2012 and am in respectful agreement with the same. I only wish to add this brief note to elaborate a fundamental principle of the Constitution of Pakistan which appears to have eluded the learned counsel opposing these petitions.

 

2. An argument was advanced by learned counsel for the respondents and by the learned Attorney General which proceeded on the premise that the elected members of Parliament alone represented the will of the people and, therefore, were not answerable to any other organ of the State including this Court. It is on this account that there was a misplaced reliance by them on Article 69 of the Constitution. This argument (discussed in the lead judgment) proceeds on a false premise. The elected representatives in Parliament and the Executive cannot claim any primacy over and above the Constitution. It is the Constitution which is supreme over all organs of the State because it manifests the will of the people. This is expressly stated in the Constitution itself. In the Preamble, for instance, the Constitution is mentioned as expressing the “will of the people of Pakistan to establish [a constitutional] order” and in the Third Schedule, it is stated clearly that the Constitution “embodies the will of the people”. It is this fundamental principle which is the hall-mark of our democratic dispensation.

 

3. In an earlier case we have already observed that in so far as all three organs of the State remain within the limits prescribed by the Constitution, “they have a legitimate claim to being enforcers and exponents of the will of the people. Our Constitution conceives of an Order wherein the various organs of State are co-equals, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation. It is important that the primacy of the Constitution over the Government as also over the judicature be fully understood.” (Syed Yousaf Raza Gillani versus Assistant Registrar, Supreme Court of Pakistan (PLD 2012 SC 466 para 34). To find the will of the people, we, as Judges, are not required to embark upon any theoretical journey in the realm of abstract political philosophy or to try finding solutions to legal conundrums in alien constitutional dispensations materially different from ours; we need only examine our own Constitution to ensure that the people of Pakistan, the political sovereigns, are obeyed and their will, as manifested in the Constitution, prevails. This after all is the very essence of a democratic order.

 

4. When we examine the Constitution, we find that the people in their wisdom have created a balance between Parliament, the Judiciary and the Executive. The rationale behind choosing this form of divided and balanced government was nicely articulated by a political thinker in another continent. He stated: “[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”(James Madison, in Federalist No. 51, The Federalist Papers). In our Constitution, the division of powers with its distinct features, is perhaps the most important of these “auxiliary provisions” which oblige the government and Parliament to themselves be controlled by Constitutional norms and mechanisms. The people of Pakistan have ordained that all three organs of the State are to function in accordance with the Constitution. With the object of ensuring that these organs of the State remain obedient to the Constitution, a simple and uncomplicated mechanism, which relies on the trichotomy of powers, has been set out in the Constitution. There is no room for obfuscation on this score.

 

5. Since the Executive has been entrusted by the people with the physical and material resources of the State, the Constitution has, in unequivocal terms, commanded that “all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court” (Article 190). The Supreme Court does not have to exercise executive or enforcement powers on its own because this is not necessary in light of Article 190 ibid. The people have willed that the Executive shall implement and enforce any order passed by the Supreme Court. In order to ensure that there is no disobedience by the Executive, the people have further willed that this Court ‘shall have power to punish any person who ... disobeys any order of the Court ... scandalizes the Court or otherwise does anything which tends to bring the Court... into hatred, ridicule or contempt ...” (Article 204). In order to check any possible disobedience to the Constitution by State organs or members of Parliament by not acting in aid of the Supreme Court or actually refusing to do so, the people have expressly stipulated that “a person shall be disqualified from being elected or chosen as, and from being a member of Parliament . . . if he has been convicted by a Court of competent jurisdiction for ...acting in any manner . . . which defames or brings into ridicule the Judiciary” {Article 63(1)(g)}. The people have thus, in the clearest possible terms, stated that they will not allow themselves to be represented by a person who has or earns a disqualification under Article 63 ibid. As noted in the judgment of Hon’ble the Chief Justice, a seven-member Bench of the Supreme Court has already convicted the former Prime Minister, Syed Yousaf Raza Gillani on this count. Mr. Gillani, by not appealing this decision, has accepted the verdict of the Court. It would, therefore, amount to defiance of the Constitution for an elected member of Parliament to insist upon disobeying constitutional orders and yet remain insistent upon remaining a member of Parliament. The cumulative effect of Articles 190, 63 and 204 is hard to miss; it effectively ensures adherence to the peoples’ will embodied in the Constitution. This is an important and distinctive feature of our Constitution which is not to be found in any other jurisdictions that I am aware of.

 

6. The above fundamental democratic and constitutional concept can be elaborated through a simple illustration. If a member of Parliament starts disobeying the Constitution by looting the public exchequer and continues to do so even when directed by this Court to stop the loot and return the plunder, it is clear that the people have armed this Court with the power under Article 204 ibid to convict him. This ensures that the Court is not a helpless bystander incapable of ensuring that the command of the people is fulfilled. The Court can effectively perform the role of the peoples’ sentinel and guardian of their rights by enforcing their will; even against members of Parliament who may have been elected by the people but who have become disobedient to the Constitution and thus strayed from their will. This mechanism provides a straightforward governance paradigm, controlled ultimately by the people. It says in effect: “abide by our will (i.e. the Constitution) or lose the privilege of being our representative”. It is all quite simple.

 

7. This Court and its empowerment by the people through the Constitution has to be seen as a bedrock of democratic rule. The Court, therefore, has performed its democratic role stated in the Constitution to keep elected representatives in compliance with the will of the people manifested in the Constitution. It is in this context that the law of contempt has to be understood. It is not a device to be used for self aggrandizement by Courts, but must be employed where the will of the people (i.e. the Constitution) is being flouted. Seen in this perspective there can be no hesitation in rejecting the argument that this Court somehow does not represent the will of the people or that it should refrain from enforcing such will simply because the respondent happens to be the Prime Minister. This latter claim, which amounts to a claim of special privilege, has already been rejected by the Court in I.C.A No. 1 of 2012 filed by the Prime Minister. In that case, we reaffirmed the “timeless and prophetic principle of governance, encapsulated in the well- known saying: . (The leader of a people is their servant)”. We had held that “[o]ur constitution manifests the embodiment of this very principle when it obliges the highest executive functionary to carry out the commandments expressed by the people in the form of the constitution and the law” (Syed Yousaf Raza Gillani v. Assistant Registrar (PLD 2012 SC 466, para 26). Even in a case prior to that, we had elaborated the principle that all State organs and their respective functionaries are in the service of the people and can have as their raison d’être, only the enforcement of the will of the people as manifested in the Constitution and the law. In Muhammad Yasin v. Federation of Pakistan while examining the legal right of the OGRA Chairman to hold office, we held that “...holders of public office have to remain conscious that in terms of the Constitution ... they are, first and foremost, fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites” Muhammad Yasin v. Federation of Pakistan- (PLD 2012 SC 132, page 163). Today, in the case of the Prime Minister who is the highest executive functionary of the State, we have no option but to adhere to the same principle.

 

8. It is also important to remember that all organs of the State have to act in harmony and with due humility as instrumentalities and servants of the people. There is no question of any clash of institutional or individual egos in abiding by the Constitution. In Munir Bhatti’s case, we had stated that “there is nothing unusual or exceptional about differences as to constitutional questions cropping up between constitutional bodies or State functionaries in a democratic dispensation. .... However, as nations mature and polities evolve, their maturity is reflected in the manner in which such differences are resolved in accordance with the governing compact, which is the Constitution... [Such differences] cannot be seen as adversarial turf-wars ... or as matters of prestige. (Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407para 82).

 

9. We have also repeatedly held that there can be no instability in the country as long as the Constitution is adhered to. We operate in a dispensation of laws and not of men. Individuals in such dispensation, are not indispensable; they are here today but may be in the hereafter tomorrow. As Iqbal said: . In the case titled Syed Yousaf Raza Gillani vs. Assistant Registrar, Supreme Court of Pakistan ibid, we have held: “What happens to an individual can be of little consequence as long as State institutions continue functioning in accordance with the Constitution. The anachronistic notion of “après moi, le déluge” has no room in a Constitutional order based on institutions rather than individuals” (para 31 ). This observation has been fully vindicated in the recent events of the past few weeks. Constitutional rule has been strengthened by the fact that a former Prime Minister who was disobedient to the Constitution has been replaced in Parliament and the affairs of State continue unimpeded in accordance with the constitutional order which, as noted above, is the embodiment of the will of the people.

 

10. At this point it is important to note that clause (g) of Article 63(1) was amended in 2010 through the 18th Constitutional Amendment. This amendment is of material significance in the present case but the change appears to have escaped the attention of the learned Attorney General and learned counsel representing the respondents. Prior to the 18th amendment clause (g) of Article 63(1) did not contain any reference to the conviction by a Court of competent jurisdiction, of a member of the National Assembly. But after the said amendment, clearly there is no room left for the exercise of decision making by the Speaker when a member of Parliament stands “convicted by a Court of competent jurisdiction ...”. At this point I respectfully reiterate the reliance by Hon’ble the Chief Justice on the case law referred to in his detailed reasoning. It is abundantly clear from the judgment of the learned seven-member Bench of this Court that the conviction of Syed Yousaf Raza Gillani is, without doubt, in respect of the disqualifying conditions of Article 63(1)(g). A substantial part of the argument of learned counsel for Mr. Gillani and of the learned Attorney General, were addressed towards perceived errors in the judgment of the said learned Bench. These, however, have no relevance whatsoever in the present proceedings because the judgment of the seven-member Bench has attained finality and there is no lawful basis on which we, in these proceedings, or the Speaker could have gone against the said judgment or reviewed the same.

 

11. While concluding this note I would like to add that there is no justification in our dispensation, for muddying the crystal and undefiled waters of our constitutional stream with alien and antiquated, 19th Century Diceyan concepts of Parliamentary supremacy. These concepts have lost currency even in their own native lands. As Lord Steyn writing in the House of Lords, the highest Court of England (the land of our former colonial masters), has written in a recent case, “[t]he classic account given by Dicey of the doctrine of supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom”. Jackson & others (Appellants) v. Her Majesty’s Attorney General (Respondents) [(2005) UKHL 560]. It is about time, sixty-five years after independence, that we unchain ourselves from the shackles of obsequious intellectual servility to colonial paradigms and start adhering to our own peoples’ Constitution as the basis of decision making on constitutional issues.

 

(Jawwad S. Khawaja)

 

Judge”