Judges as legislators

Under our constitution, parliament legislates, the executive runs the government of the day and the judges decide when either of the other two has overstepped its domain. The power of judicial review of state action (whether executive or legislative) is clearly a part of our system. This power should not be used to usurp the authority of, or emasculate, the other organs of the state.

In the short order of the Supreme Court of Pakistan on the Election Act 2017, the court has legislated. With the greatest of respect, in my opinion this decision is wrong and an unfortunate encroachment on the legislative domain. Parliament passed a law which was clearly intended, among other things, to allow a disqualified person to lead a political party. The court, through its short order, has not struck down any provision of the law but has held that the relevant statutory provisions must be “read, construed and interpreted subject to the provisions of Article[s] 62, 63 and 63-A of the constitution”.

The court’s order is tantamount to saying that we don’t like what parliament has done and therefore we are rewriting the statute by including in it something that was excluded by design. It is an extraordinary judicial intervention. It is extraordinary because it means that our courts now simply do not have the power to strike down laws but also have the power to “read into” provisions which have been deliberately excluded by the legislature.

Not only has the court rewritten the Election Act 2017, it has effectively also rewritten the constitution. No legislation can now be passed which allows a disqualified person to be the leader of a political party. The court will read into that legislation the qualification/disqualification articles of the constitution. Those qualification/disqualification articles apply under the constitution to parliamentarians. By virtue of the court order, they also apply to leaders of parties. Without a constitutional amendment, our constitution de facto stands amended through an order passed by three Supreme Court judges.

It may be highly desirable that leaders of political parties are individuals who are not disqualified to be members of parliament. The sections of the Election Act 2017 which removed this requirement may be very unwise, perhaps even immoral. The law may have been passed in haste – by a small majority, with ulterior, person-specific motives. None of these are grounds for judicial review. If anyone wants to improve our laws or change them, they should form a political party, run for office, win an election and legislate as parliamentarians. That is how the system works.

It is quite clear that the courts have the power to strike down ordinary legislation on the ground that it violates fundamental rights guaranteed by the constitution. That power is expressly conferred by Article 8. The provision in the relevant law prior to the Election Act 2017 stipulated that a person disqualified from being a parliamentarian could not be a party leader. This law was arguably not inconsistent with Article 17 (the article containing the fundamental right to form and be a member of a political party) since the article enables reasonable restrictions to this fundamental right based on the sovereignty or integrity of Pakistan or public morality (whatever that means). The material point is that parliament had enacted or adopted that restriction through the Political Parties Order 2002. Well, actually, it had initially been promulgated by Pervez Musharraf under the PCO in his capacity as chief executive in 2002. It was subsequently adopted by parliament through the 17th Amendment. The Supreme Court order has the effect of restoring a law promulgated by a military dictator.

Apart from the constitutional power to strike down a law on the basis that it conflicts with fundamental rights, the Supreme Court has held that it has the power to strike down a constitutional amendment if it substantively changes the salient features of the constitution. This was held by the majority in the 21stAmendment case on military courts. These salient features were held to include democracy, parliamentary form of government and independence of the judiciary.

There was an eloquent judgment delivered by Justice Saqib Nisar (as he then was) in this case. He did not agree with the majority opinion that parliament did not have the power to change the salient features. He relied (as he does in the decision on the Election Act 2017) upon the language of the Objectives Resolution and noted that it states that sovereignty over the entire Universe belongs to Allah Almighty alone and the authority to be exercised by the people of Pakistan is a sacred trust. He went on to hold that, “what is critical to note is that the Resolution explicitly states and delineates who is to exercise that authority. The language is, ‘Wherein the State shall exercise its powers and authority through the chosen representatives of the people’”.

The current chief justice then cautions us all about the dangers of judicial overreach. He says that the Objectives Resolution “does not state that the authority is to be exercised by the judicial officers appointed by the state. The repository of ultimate power is the body of elected representatives. The final word must always therefore rest with them and no one else. The judicial organ of the state cannot, and ought not, to claim that it is the ultimate authority in the land. Such a claim would be clearly violative of the explicit language of the resolution.”

The Supreme Court and its judges are independent and must be respected. To say that their decisions are malicious or being dictated elsewhere is contempt of court. The system will not work if politicians ridicule the judiciary and say it is biased whenever they lose a case. The court also needs to reflect on our history where institutional overreach, even with the best of motives, has harmed the country rather than helped it.

The writer is an advocate of the Supreme Court of Pakistan.

Email: a.hosain@lma-eh.com