Much has been written about the Supreme Court’s opinion in the Presidential Reference on Article 63-A of the Constitution of Pakistan and its political impact. For all practical purposes, Article 95 of the Constitution of Pakistan has become redundant because the only way a Prime Minister can be removed through a vote of no confidence henceforth is if his own parliamentary party decides to get rid of him. As things stand now, there is no room for an individual member of the treasury benches to vote the Prime Minister out of office.
Without going into the merits of whether this is a good thing or a bad thing for our democracy – and arguably it will go some way in ensuring continuity in our democracy supposedly — it is the way that the Supreme Court decided the matter that should be a cause for concern for all constitutional jurists in Pakistan or at the very least make us wonder what is next vis a vis Supreme Court’s interpretation of the Constitution going forward. It was a case of Constitutional re-writing by a majority of three to two. This is not to cast aspersions on the judges, but it was merely a clash between two very different approaches to the constitutional interpretation:
1. The living constitution theory
2. Textualist interpretation of the Constitution
The living constitution theory – which is what the majority of the judges emphasized during the hearings — says that the Constitution is a living document which adapts to times and changes in social and material conditions. This is a fascinatingly alluring idea, one which appeals to all those who are idealistic about the march of humanity. Indeed this writer was once a proponent of the living constitution theory. However, we have seen the limits of that idea on occasion i.e. the linear march forward is not always the case. Indeed in our case, one could ostensibly argue that our march has been in the opposite direction. Even if that was not the case, the correct way of doing things is for the parliament to amend the Constitution where necessary while preserving the meaning as intended by the framers. This is necessary because we cannot have a shifting basis for constitutional interpretation because it will ultimately come down to an exercise in reading in provisions to the Constitution and re-writing it.
This is precisely what happened in the said reference. The majority judgment went beyond the scope of Article 63-A and read it with Article 17- reading into the Article 17 supposed rights of political parties.
Here are this writer’s views on the merits. The vote is a matter of conscience and cannot be subject to the hegemony of the party head. The most that can happen is that the said member would be de-seated and would have to return to seek a fresh mandate from his or her constituents. The right to freely associate with another party does not extinguish when a member enters the parliament. It is not a reprehensible act. A person who acts on the voice of his conscience mindful of the possible consequences is akin to Socrates drinking poison hemlock.
The Constitution does not forbid nor does any other law forbid defection or make it a crime. The Constitution merely provides remedial action for it. To suggest that it would be a morally reprehensible act attracting the provisions of Article 62(1)f is special pleading in addition to being a wholly undemocratic reading of the constitutional provision. The US Constitution’s Speech and Debate Clause is relevant here. It states F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other place. The US Courts have applied this clause to include within its ambit legislative acts. This is an old English law principle that finds some expression in our constitutional scheme as well.
For example absolute parliamentary privilege attaches to the proceedings of the parliament. Arguably a vote in a no confidence motion is part of this proceeding. Therefore, while the Supreme Court can sit in appeal vis a vis de-seating, the act of defection itself cannot be penalized beyond the parameters of 63-A. 62(1)f cannot be stretched and applied to 63-A precisely because it is the prerogative of a member to defect by voting against his own government. This immunity of sorts can be said to be a key pillar of the separation of powers principle.
The idea that a representative of the people is bound by party allegiance flies in the face of parliamentary practice in the UK where floor crossing is a matter of right and not a morally reprehensible act. Change of party allegiance is part of normal parliamentary practice in United Kingdom, Canada and Australia, three most well known parliamentary democracies. While Article 63-A of the Constitution provides for de-seating in the event of floor crossing or defection, it does not disqualify the member from re-election. The idea that an individual member’s vote belongs to the party and the party alone is a novel creation, which finds acceptance only in a handful of South Asian countries. Bangladesh decisively went that way with Article 70 of the Bangladeshi constitution, which forecloses the prospect of vote of no confidence. This has led to the Prime Minister of Bangladesh being vested with dictatorial powers. Shaikh Hasina's oppression of opposition for example is well known. Vote of no confidence remains a powerful check on abuse of power by the Prime Minister. Perverse reading of Article 63-A would oust this right of the legislators in our National Assembly.
Nevertheless, it is stipulated that the Constitution makes it mandatory for a defector to seek fresh mandate after expressing no confidence through voting in such a motion. That the vote cannot be called tainted because the constitutional process under Article 63-A of the Constitution is triggered only after the vote itself is cast. Therefore, the vote does not become tainted and the question of it not being counted does not arise. Such a proposition would amount to putting the horse before the cart. Supreme Court’s judgment in Imran Khan Niazi versus Ayesha Gulalai 2018 SCMR 1043 lays down the basis for disqualification and the necessary elements are: Clear instructions, in writing, by the party head and the actual act of voting against or abstaining from voting in accordance with the Party head’s instructions and the act of voting or abstaining itself. In the 63-A case/reference Pakistani Supreme Court has in essence gone beyond the four corners of the text of 63-A – a self contained provision- and have ruled that “tainted” votes cannot be counted.
More interesting of course is the larger question. Can an unelected institution preside over the rewriting of the constitution, thereby in essence taking over the responsibility of the elected legislature? There is unfortunately precedent from other countries that would suggest that similar approaches have been taken there, most notably in the United States of America and Republic of India.
The US position tends to favor judicial pragmatism. Chief Justice Marshall noted in McCulloch v. Maryland 17 U.S. 316 (1819) that a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." At another place, Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." Indian Supreme Court read in the “basic structure” into the Constitution with its judgment in Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461. This meant that the legislature’s right to amendment to the Constitution was severely curtailed.
With respect, such exercise amounts to usurpation of legislative power by the Supreme Court. It is a very attractive idea i.e. the Supreme Court smoothening the jagged edges and filling in the gaps. It could mean things like reading in the right to Internet as part of right to life. Is that ludicrous? It has already happened in India. In R. Rajagopal Vs. State of Tamil Nadu 1994 SCC (6) 632 the Indian Supreme Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, amongst other matters. Whatever positive outcomes, it still leaves the whole idea of democracy in a precarious position. It is the people who should decide these matters through their chosen representatives and not Supreme Court judges. The only institution vested with the power to rewrite the Constitution is the Federal Legislature for better or for worse. The Supreme Court should not take it upon itself to protect the people from their own mistakes. Beyond defending the legitimate fundamental rights of the individual citizen, the Supreme Court should allow the people to choose the course that the country should take going forward.
Without going into the merits of whether this is a good thing or a bad thing for our democracy – and arguably it will go some way in ensuring continuity in our democracy supposedly — it is the way that the Supreme Court decided the matter that should be a cause for concern for all constitutional jurists in Pakistan or at the very least make us wonder what is next vis a vis Supreme Court’s interpretation of the Constitution going forward. It was a case of Constitutional re-writing by a majority of three to two. This is not to cast aspersions on the judges, but it was merely a clash between two very different approaches to the constitutional interpretation:
1. The living constitution theory
2. Textualist interpretation of the Constitution
The living constitution theory – which is what the majority of the judges emphasized during the hearings — says that the Constitution is a living document which adapts to times and changes in social and material conditions. This is a fascinatingly alluring idea, one which appeals to all those who are idealistic about the march of humanity. Indeed this writer was once a proponent of the living constitution theory. However, we have seen the limits of that idea on occasion i.e. the linear march forward is not always the case. Indeed in our case, one could ostensibly argue that our march has been in the opposite direction. Even if that was not the case, the correct way of doing things is for the parliament to amend the Constitution where necessary while preserving the meaning as intended by the framers. This is necessary because we cannot have a shifting basis for constitutional interpretation because it will ultimately come down to an exercise in reading in provisions to the Constitution and re-writing it.
This is precisely what happened in the said reference. The majority judgment went beyond the scope of Article 63-A and read it with Article 17- reading into the Article 17 supposed rights of political parties.
Here are this writer’s views on the merits. The vote is a matter of conscience and cannot be subject to the hegemony of the party head. The most that can happen is that the said member would be de-seated and would have to return to seek a fresh mandate from his or her constituents. The right to freely associate with another party does not extinguish when a member enters the parliament. It is not a reprehensible act. A person who acts on the voice of his conscience mindful of the possible consequences is akin to Socrates drinking poison hemlock.
The Constitution does not forbid nor does any other law forbid defection or make it a crime. The Constitution merely provides remedial action for it. To suggest that it would be a morally reprehensible act attracting the provisions of Article 62(1)f is special pleading in addition to being a wholly undemocratic reading of the constitutional provision. The US Constitution’s Speech and Debate Clause is relevant here. It states F]or any Speech or Debate in either House,” Members of Congress (Members) “shall not be questioned in any other place. The US Courts have applied this clause to include within its ambit legislative acts. This is an old English law principle that finds some expression in our constitutional scheme as well.
For example absolute parliamentary privilege attaches to the proceedings of the parliament. Arguably a vote in a no confidence motion is part of this proceeding. Therefore, while the Supreme Court can sit in appeal vis a vis de-seating, the act of defection itself cannot be penalized beyond the parameters of 63-A. 62(1)f cannot be stretched and applied to 63-A precisely because it is the prerogative of a member to defect by voting against his own government. This immunity of sorts can be said to be a key pillar of the separation of powers principle.
The idea that a representative of the people is bound by party allegiance flies in the face of parliamentary practice in the UK where floor crossing is a matter of right and not a morally reprehensible act. Change of party allegiance is part of normal parliamentary practice in United Kingdom, Canada and Australia, three most well known parliamentary democracies. While Article 63-A of the Constitution provides for de-seating in the event of floor crossing or defection, it does not disqualify the member from re-election. The idea that an individual member’s vote belongs to the party and the party alone is a novel creation, which finds acceptance only in a handful of South Asian countries. Bangladesh decisively went that way with Article 70 of the Bangladeshi constitution, which forecloses the prospect of vote of no confidence. This has led to the Prime Minister of Bangladesh being vested with dictatorial powers. Shaikh Hasina's oppression of opposition for example is well known. Vote of no confidence remains a powerful check on abuse of power by the Prime Minister. Perverse reading of Article 63-A would oust this right of the legislators in our National Assembly.
Nevertheless, it is stipulated that the Constitution makes it mandatory for a defector to seek fresh mandate after expressing no confidence through voting in such a motion. That the vote cannot be called tainted because the constitutional process under Article 63-A of the Constitution is triggered only after the vote itself is cast. Therefore, the vote does not become tainted and the question of it not being counted does not arise. Such a proposition would amount to putting the horse before the cart. Supreme Court’s judgment in Imran Khan Niazi versus Ayesha Gulalai 2018 SCMR 1043 lays down the basis for disqualification and the necessary elements are: Clear instructions, in writing, by the party head and the actual act of voting against or abstaining from voting in accordance with the Party head’s instructions and the act of voting or abstaining itself. In the 63-A case/reference Pakistani Supreme Court has in essence gone beyond the four corners of the text of 63-A – a self contained provision- and have ruled that “tainted” votes cannot be counted.
More interesting of course is the larger question. Can an unelected institution preside over the rewriting of the constitution, thereby in essence taking over the responsibility of the elected legislature? There is unfortunately precedent from other countries that would suggest that similar approaches have been taken there, most notably in the United States of America and Republic of India.
The US position tends to favor judicial pragmatism. Chief Justice Marshall noted in McCulloch v. Maryland 17 U.S. 316 (1819) that a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." At another place, Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." Indian Supreme Court read in the “basic structure” into the Constitution with its judgment in Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461. This meant that the legislature’s right to amendment to the Constitution was severely curtailed.
With respect, such exercise amounts to usurpation of legislative power by the Supreme Court. It is a very attractive idea i.e. the Supreme Court smoothening the jagged edges and filling in the gaps. It could mean things like reading in the right to Internet as part of right to life. Is that ludicrous? It has already happened in India. In R. Rajagopal Vs. State of Tamil Nadu 1994 SCC (6) 632 the Indian Supreme Court held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education, amongst other matters. Whatever positive outcomes, it still leaves the whole idea of democracy in a precarious position. It is the people who should decide these matters through their chosen representatives and not Supreme Court judges. The only institution vested with the power to rewrite the Constitution is the Federal Legislature for better or for worse. The Supreme Court should not take it upon itself to protect the people from their own mistakes. Beyond defending the legitimate fundamental rights of the individual citizen, the Supreme Court should allow the people to choose the course that the country should take going forward.