“Members of the Supreme Court are vested with the authority to interpret the law ... it is not the Court's job to protect the people from the consequences of their political choices.” – Chief Justice Roberts, US Supreme Court, 2012
One of the foundational questions a democracy with an independent judiciary must face is the nature of the power that the courts exercise through the interpretation of the constitution and the laws in general.
This question has assumed urgent relevance outside the confines of the legal profession in the wake of the recent majority opinion rendered by a five-member bench of the Supreme Court of Pakistan interpreting Article 63A of the constitution. Article 63A states that in the event of a member of a parliamentary party voting against the directions of the parliamentary party on a resolution of no-confidence against the prime minister or the chief minister, or with respect to a money bill or a constitutional amendment, such member may be declared by the party head to have defected from the party. The consequence of such defection is provided in the form of de-seating of such member.
While detailed reasons are awaited, the court has held that votes cast by members of a parliamentary party against the directions of their party, in a vote of no-confidence against the prime minister, shall not be counted. This is an interpretation of Article 63A that merits reflection beyond reactions that are politically partisan. The two minority judges on the bench have, in their dissent, called it an impermissible re-writing of the constitution. Consider.
The constitution, when first adopted in 1973, contained Article 96 that regulated voting on a resolution for a vote of no-confidence against the prime minister. The original Article 96 contained the following proviso: “Provided that for a period of ten years from the commencing day or the holding of the second general election to the National Assembly, which ever occurs later, the vote of a member elected to the National Assembly as a candidate or a nominee of a political party cast in support of a resolution for a vote of no confidence shall be disregarded if the majority of the members of that political party in the National Assembly has cast its votes against the passing of such resolution.”
Article 96, along with the proviso reproduced above, was deleted from the constitution in 1985 by Presidential Order No 14 of 1985 and the 8th Amendment, passed later that year. The interpretation made by the majority opinion of the Honourable Supreme Court of Article 63A has, in effect, read a version of the deleted proviso to the deleted Article 96 back into the body of the constitution. Article 63A itself contains no language directing the disregarding of the votes of a dissenting minority among the members of a parliamentary party. How might the majority have arrived at its interpretation of Article 63A? What is it that the courts do in reading and interpreting the constitution?
Contrary to what Twitter gurus tell us, courts do not simply pull out a dictionary to understand the text of the Constitution. Constitutional text is embedded in history. That does not mean that all judges simply look for the historic original intent of those who participated in the drafting of the constitution. Some judges, most notably Justice Scalia of the United States Supreme Court, have indeed been dubbed ‘original intentists’ but even for those who subscribe to this school of interpretation there is more to constitutional interpretation than linguistic archeology. Historic intent, to be deduced from the text as written and never from parliamentary debates, must be sensibly applied to contemporary context.
For others, the significance of history lies in viewing the text of the constitution, as amended from time to time and as interpreted by the Supreme Court through successive judgments, as a live event spread across historic time. The text of the constitution must be read harmoniously. Amendments made later in time will act to change the meaning to be ascribed to parts of the constitution that remain unamended and were enacted earlier in time. All parts of the constitutional text must always fit harmoniously. Supreme Court judgments interpreting some provision of the constitution have the effect of changing the understanding that we must adopt of other parts of the constitution. The original intent of the drafting founding fathers does not exclusively control interpretation of the text they drafted. Laurence Tribe, professor at the Harvard Law School for decades, is perhaps the leading proponent of the ‘harmonious reading of the living constitution’ school.
A third school of constitutional interpretation flows out of the work of Ronald Dworkin, widely considered the most important legal philosopher of the last century. For Dworkin, the constitution embodies a hierarchy of principles, such as the right of all to be treated with equal concern and dignity as human beings – the apex principle. An evolving understanding of the implications and purposes of these principles must determine how judges read the text of the constitution. Hence, while the founding fathers of the American constitution adopted the principle of ‘equal concern and dignity’ many of them remained slave owners and most were opposed to equal pay for equal work for women.
The text of the Constitution must be given meaning by the judge interpreting it today, a meaning that is consistent with the current societal understanding of ‘equal concern and dignity’ and not of the founding fathers. For Dworkin, the constitution must be given a purposive moral reading that is consistent with the abstract principles embedded in the constitution.
This leaves Scalia, and even Tribe, uncomfortable. For Tribe, the words of the constitution are not mere shells floating on the surface of time, to be filled in by unelected and largely unaccountable judges with moral purposes that they find compelling. For him, words have meanings that are constrained by how they fit in with the original and amended text of the constitution. Moral purpose must be found within the text of the constitution and must not transcend the text itself.
While scholars and philosophers look for principled consistency in interpretation, real-world interpretation is rarely based on such consistency. In reading Article 63A, added through a constitutional amendment in 1997 and then amended through the 18th Amendment in 2010, a judge may take note of Article 17 of the constitution of Pakistan, as interpreted and applied by the Supreme Court in its 1992 judgment, Nawaz Sharif v The President.
Article 17 is almost unique in expressly recognizing the fundamental right of the citizens of Pakistan to form political parties. The judgment in Nawaz Sharif’s case extended this right to affirm the right of the members of a political party to demand that the democratic rule enjoyed by their party not be terminated by the president through an unjustified, and hence illegal, dissolution of the National Assembly.
The subsequent judgment of the Supreme Court in 1998 in the case of Wukala Mahaz described the act of defection from a political party as a form of cancer afflicting the body politic. The defectors were described, in effect, as moral wretches. A judge reading Article 63A today may, with some plausibility, read the judgment in Nawaz Sharif’s case expansively as affirming the right of a political party elected to form a government to remain in office without any illegal interference (not just interference by the president through the now deleted Article 58(2)(b)) – including the illegality of a vote by a defecting member against the prime minister elected by the political party. A judge may argue that defection being a legal and moral wrong condemned by the constitution through Article 63A cannot be allowed to bring about the demise of the government of a political party in violation of the fundamental right of the members of the party and the right of the party itself to remain in office, unless lawfully removed.
Other judges, with a different interpretive frame, would point to the express exclusion from the constitution of the text in the original Article 96 that provided for the disregarding of the votes of the dissenters against the majority of their own party. Such text could have been reinserted by parliament through the amendments in 1997 and 2010 that inserted Article 63A, but was not. Should parliamentary will as expressed through the text of the constitution be supplemented by judges by reading into the constitution consequences of the act of defection that are morally justified but not supported by the text?
There is a legitimate debate to be had before we fall prey to a cynical disregard for principles and of the judicial function.
The writer is an advocate of the Supreme Court of Pakistan.
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