If I Were A Supreme Court Judge

If I Were A Supreme Court Judge
The deepening economic, political, and judicial crisis in the country compels me to think about how would I have acted had I been a Supreme Court (SC) judge. These reflections lead me to the Supreme Court decision on Article 63A of the Constitution. In my opinion, this decision on party defections contributed to the political crisis, and has produced deleterious results.

The SC concerned the vote of a party member that is cast contrary to a direction issued by their parliamentary party. With reference to clause (1b) in Article 63A of the Constitution, regarding the election of the prime minister or the chief minister; a vote of confidence or no-confidence; a money mill; or a Constitution (Amendment) Bill, that such a vote contrary to the party’s direction cannot be counted and must be disregarded. The Supreme Court interpreted Article 63A of the Constitution "in a purposive and robust manner, which accords with its spirit and intent." To me, however, such a judicial approach in the interpretation of Article 63A amounts to rewriting or reading into the Constitution what is not provided in its text.

In Article 63A, in case any member votes against a direction issued by their parliamentary party, the party head – after providing them with an opportunity to show cause for defection – may declare in writing that the member has defected from the political party, then forward a copy to the presiding officer of the House and the CEC for the latter to decide the same within thirty days. Upon confirmation by the Election Commission, the member shall cease to be a member of the House. Any party aggrieved by the decision of the Election Commission may, however, within 30 days, lodge an appeal to the Supreme Court, which shall decide the matter within ninety days from the date of the filing of the appeal.

Considering the history of horse-trading and political engineering in Pakistan, Article 63A was added to the Constitution by the passage of the 18th Amendment in 2010. It aimed to strike a balance between the rights of individual parliamentarians and regime stability. A three-layered mechanism for the declaration of defection and de-seating was provided to strike this balance in the interest of strengthening parliamentary government. But, in stressing the power of political parties, it may have stifled the fundamental rights of individual parliamentarians too much.

The SC emphasizes that, regardless of any action by the party head, the vote of the concerned member "cannot be counted and must be disregarded." This interpretation makes the explicit procedure and purpose of Article 63A redundant. Moreover, it nullifies the powers of the party head, the Election Commission, and even the Supreme Court to declare, reject or confirm the declaration of the defection of a member.

The SC argues that, "Article 63A must be interpreted in a broad manner, consistent with fundamental rights. If there is any conflict between the fundamental rights of the collectivity i.e., political party and an individual member thereof it is the former that must prevail." Yet, in my opinion, the right of individual members – freedom of speech (Article 19) – cannot be eclipsed by the right of a political party. Both categories of rights are equal and should be interpreted in a balanced manner. In the absence of freedom of speech, freedom of association (e.g. joining a political party) does not make any sense for citizens who serve as parliamentarians.

A broad interpretation of Article 63A does not require the denial of freedom of expression for parliamentarians. Article 63A should not necessarily mean the nullification of the vote of a member against the direction of a party head. Every vote is not a case of horse-trading. There could be genuine dissent and disapproval within a party for failing to deliver to the people. The right to express dissent, even within parties, is an essential feature of a functioning democracy. The Supreme Court’s broad interpretation of Article 63A takes away parliamentarians' right to dissent and weakens democracy. It disturbs the balance provided under Article 63A between the individual right of a member and the role of political parties.

The SC’s decision encouraged the head of PTI to dictate to the PTI-affiliated Chief Ministers of Punjab and the KPK to dissolve their respective provincial assemblies. Such a dictation by the head of a political party - who, in this case, is not also a member of the concerned assembly - violates the constitutional mandate of the Chief Minister under Article 112 of the Constitution as well as the rights of the people who elected the provincial assemblies for five years. Both the Lahore High Court and the Supreme Court failed to first decide upon the validity or constitutionality of the dissolution of the provincial assemblies. Instead, drawing on the suo motu jurisdiction of the CJP, which is limited to cases regarding fundamental rights - election timing is not ordinarily construed as a matter of fundamental rights - they quickly proceeded to hold that fresh elections to these assemblies should be held within 90 days of the dissolution. There is a consensus amongst judges – as far as the conduct of provincial assemblies elections within 90 days is concerned (ref. Articles 224(2) and 105(3) of the Constitution). However, the legal fraternity is divided as to the mandate of the CJP under Article 184 (3) of the Constitution regarding the use of suo motu jurisdiction. To address the latter, both parliamentary chambers passed the Supreme Court (Practice and Procedure) Bill, 2023 to clip the powers of the CJP.

However, in a remarkable step, the SC suspended the bill even before it came into effect as a law that might be subject to judicial review. Despite this suspension order by the Supreme Court, the parliament went on to pass the bill in a joint session of the parliament as such a preemptive action is entirely novel. The ruling, however, is also controversial on account of the composition of the bench as it excludes the senior puisne judge and other dissenting judges. The parliament has, in turn, rejected this preemptive ruling, describing it as an aggressive attempt of the Supreme Court to abrogate the constitutional authority of parliament to make legislation.

Now several questions need to be examined: whether the Supreme Court (Practice and Procedure) bill, 2023 offends the Constitution such as the constitutional doctrine of separation of powers and the independence of the judiciary; whether the bill travels beyond the legislative competence of the parliament; whether provisions such as Article 191 of the Constitution can be amended or held redundant by an ordinary law; whether the decision to suspend the bill even before it could become a law goes beyond the constitutional mandate of the Supreme Court and encroaches on the parliament's legislative domain.

A few articles are directly relevant in this case. Article 70 relates to the introduction and passing of Bills concerning any matter in the Federal Legislative List – enumerated in the Fourth Schedule of the Constitution. Article 191 empowers the Supreme Court "to make rules regulating the practice and procedure of the Court." Article 142(a) provides that Parliament can make laws for any matter in the Federal Legislative List. Entry 55 of Part I of the Federal Legislative List empowers the parliament to make laws in respect of the jurisdiction and powers of all courts except the Supreme Court.

As the case is pending before the Supreme Court, I may avoid detailed comment on the constitutionality of the Supreme Court (Practice and Procedure) bill, 2023 and the pre-emptive judicial strike by the Supreme Court through which the bill stands suspended. In my tentative assessment, however, the Supreme Court’s decision to suspend the bill even before it becomes law is flawed and offends the constitutional doctrine of separation of powers. Of course, the Court can examine any ordinary law (not a bill). Further, Parliament cannot curtail the Supreme Court’s jurisdiction or regulate its procedure through a sub-constitutional law. Each institution has a defined sphere under the Constitution which is seemingly blurred through promulgating the bill as well as suspending the same by the Supreme Court before it gained the status of law. The Supreme Court is expected to illuminate such points in its final judgment and provide guidance for future.

The precedents of Aitzaz Ahsan case (PLD 1989 SC 61) and Hisba Bill case are instructive here. While the former held that the court does not have the power to suspend a bill, the latter held that many of the provisions in the bill violated the Constitution by interfering in the private lives, personal thoughts and individual beliefs of citizens. The court, therefore, directed the NWFP governor to reject the Hisba Bill. Legal experts  maintain  that the Hisba Bill case was decided under the advisory jurisdiction. The current case, however, is taken up under the original jurisdiction of the SC.

Anyway, the SC is deciding the Supreme Court (Practice and Procedure) bill, 2023 amidst increasing tensions between the judiciary and the legislature. The ruling coalition has launched a campaign against the current CJP, including a judicial misconduct reference against him and some other judges in the Supreme Judicial Council. The bar councils want the apex court to "show restraint rather than becoming part of an accelerating political crisis…” The SC has allowed political parties to decide the issue of elections through dialogue—but if the SC has already declared that elections to provincial assemblies must be held within 90 days after their dissolution, how can this now be left to political parties to decide a date for the elections?

The Supreme Court (Practice and Procedure) Act, 2023 and the Supreme Court judgement have become a major point of contention between the parliament and the judiciary. A constitutional breakdown is possible. The hardened positions of our political parties, Supreme Court judges, and bar members are worsening this crisis. In such a situation, the people expect the SC, as the custodian of the Constitution, democracy, and fundamental rights, to demonstrate independence and a capacity to uphold the supremacy of the Constitution and, therein, a balance of power between the institutions.

As a judge of the Supreme Court, I would have addressed the constitutionality of the dissolution of the two provincial assemblies (ref. Article 63A) before deciding on the conduct of elections within 90 days.  I might have restored those assemblies to complete their terms so as to promote the rule of law, constitutionalism, and democracy whilst protecting the fundamental rights of the citizens (including parliamentarians). I would have abstained to suspend a bill before it becomes a law. I would have supported a structured use of suo motu powers to address enumerated fundamental rights. I would have transparence in the formation of benches to end the perception of partiality. Feeling the pain of ordinary citizens, who lack even the basic necessities of life, I would have restored the confidence of the people in our courts to make our country stronger.