The majority base their findings on a “purposive” interpretation.
ather than judicial interpretation, the decision of the Supreme Court of Pakistan in the presidential reference has effectively amended the constitution through a judicial order. This is a matter that lies within the domain of the elected representatives of the people and should have been left to them.
Unelected judges cannot be removed by the people. It is the people’s representatives – however awful they may be – who have the power through a prescribed process to amend the constitution. That power has already been circumscribed by our courts through the salient features theory. Notwithstanding the fact that the constitution expressly stipulates that no constitutional amendment can be questioned in any court, our courts have retained the power to review the amendments if they violate the salient features of our constitution. To that power to veto constitutional amendments has now been added the power to insert provisions into the constitution that do not exist.
There is no provision in the constitution providing that votes of defecting lawmakers will not be counted. The majority base their findings on what they call a “purposive” interpretation. They submit that since the purpose of Article 63-A is to address the cancer of defection, it should be interpreted in a manner which gives effect to this purpose.
The ‘purposive’ principle is a recognised tool of interpretation. It is traditionally used by judges where there is an ambiguity in the language or where the plain meaning of a particular provision is not clear. Historically, its foundation is based on the “mischief” rule. Where parliament addresses a mischief through legislation and provides a remedy, the courts will through their decisions seek to address the mischief and advance the remedy. They will not allow subtle inventions or technical grounds to be used to evade the prohibition.
In this case, Article 63-A expressly contemplates de-seating as the remedy for defection. There is also a clear process stipulated for de-seating. To the punishment of de-seating after a process, the court has through the order added an additional punishment. The relevant defected vote will not count.
This is not a case involving interpretation of ambiguous language. The constitution is clear. The prescribed procedure for de-seating is clear. The procedure contemplates a process post defection – i.e. it assumes defection. The order has the effect of inserting a completely undemocratic concept – don’t count the vote – into a constitutional process which in fact contemplates such a vote.
Two linked risks flow from such orders. First, uncertainty; the foundation of any stable polity is a clear system of rules and consequences. Where through a purposive approach courts insert concepts and language into laws, there can be no certainty as to what the law is. It will depend on the particular judge and on the mood of that particular judge on that particular day.
Whatever one’s views on the order, it is binding and has been expressed as being made under Article 184(3) as an order as well as being an opinion in the advisory jurisdiction of the Supreme Court. It must be implemented by all authorities.a
Second, illegitimate expectations; where a court rewrites the law for a greater purpose in one case, when it fails to do so in another matter the losing party will feel aggrieved by the double standards. There will be an expectation of complete justice regardless of the law rather than complete justice in accordance with the law. Such illegitimate expectations ultimately undermine the judiciary.
Laws exist and are made by and for societies as they exist at a particular moment in history. Horse trading or buying and selling of parliamentarians has afflicted our political system for a while. So has corruption of public office holders generally.
Bad laws or unfair processes do not assist in addressing these evils. If anything, they undermine the effort. The accountability laws are draconian and have been in place since 1999. They have not meaningfully addressed the problem of corruption in public life.
Not counting the vote of a dissenting parliamentarian on the matters identified in Article 63-A is bad law. It effectively renders parliamentarians as dummies in the matters covered by the article – including crucially in respect of a constitutional amendment bill.
The detailed reasons for the order will be released later. The reasons will need to clarify many uncertainties that remain. If a defecting vote is not to be counted, does this mean that a member who fails to vote in accordance with the direction of the party to support a particular bill or motion will still have the vote counted even absent a vote? This would appear to follow logically from the court’s purposive interpretation. It would mean that a prime minister could be elected or removed without any vote being cast at all by any member. In such a situation, for a foreign or other conspiracy to succeed against the nation, the conspirator need not bother with purchasing 172 members. All that is needed is to purchase the party head or heads who control 172 members.
Chief Justice Jawaad Khawaja (retired) penned a persuasive dissent in the military courts case. He struck down the amendment to Article 63-A which included constitutional amendment bills within the scope of this article. In his view the oath taken by all members requires them to be faithful to the constitution. In matters of proposed amendments to the constitution such members are chosen representatives of and must be loyal to the people and not to their party.
The response given to the members’ conscience argument is that the member should resign if unable to support a party direction. Resignation would not stop the action or any conspiracy the member wanted to stop. It would in all likelihood facilitate it. The order removes a crucial safety valve available in the parliamentary system in respect of proposed legislation: the mind and conscience of individual representatives.
Whatever one’s views on the order, it is binding and has been expressed as being made under Article 184(3) as an order as well as being an opinion in the advisory jurisdiction of the Supreme Court. It must be implemented by all authorities. Perhaps those who recently criticised the court for opening at midnight will now see the wisdom of protecting institutions when insinuations or statements are made against them. An independent and robust court respected by all stakeholders is essential for the future prosperity of our country.
The writer is an advocate of the Supreme Court. email@example.com