Has the Supreme Court taken precedence over the constitution?
Writer: Khan Abdul Ghaffar Khan, Lawyer and Analyst, firstname.lastname@example.org
The supreme court of Pakistan came in the grip of political turmoil that has continued since the ouster of former Prime Minister Imran Khan through a vote of no confidence. Since then, legality of elections, validity of votes and now the legitimacy of unelected judges to decide such matters have been met with stiff opposition. The bone of contention became the interpretation of article 63A that provides for the disqualification of a Member of Majlis-e-Shoora on account of defection to another party or for acting contrary to the directions of their parliamentary party.
The plain reading of the said clause of the constitution allows one to assume accurately that the constitution allows floor crossing and the result of such an act. Albeit, with a penalty of disqualification. This is as simple as explained. It would not be an extrapolation to draw a view that the constitution of Pakistan doesn’t restrict, abandon, prohibit or prevent the act of going against the dictates of a parliamentary party in the aforementioned domains.
However, the subsequent interpretation of article 63A adopted by the honorable supreme court of Pakistan gave it a new dimension by broadening its purview (spacious enough) to include the rejection of vote of defectors (something that the constitution doesn’t make a mention of). Question is Can such addition, insertion, or expansion of the meaning of article 63A mean that the Supreme Court has subverted the original words of the clause that would otherwise require a 2:3rd majority. Can a 3:2 ratio of unelected judges do something big enough to add something through an interpretation that was originally not written in the constitution?
Well. The answer is divided on this subject as the jurisprudential debate lingers on. Some say ‘yes’ the Supreme Court can interpret the constitution to an extent of adding what is originally ‘not written’. Such as in the case of Marbury VS Madison (1803), the US Supreme Court established the doctrine of judicial review of Congressional acts, something that the US constitution did not speak of. This is done for the constitution to work under all situations that are not foreseeable by the makers of it. This view, however, has its merits especially when the parliament is failing in its legislative role or some controversies arise wherein the organs of the state confront each other.
Pran Chopra in his book ‘‘the supreme court versus the constitution, a challenge to federalism’’ contends that the right to amend the Constitution in India lies with Parliament, when meeting in the exercise of its constituent power. In the last quarter of a century, however, and in an atmosphere of judicial activism in the face of a faltering Parliament and administration, the Supreme Court has gone beyond its role as interpreter of the Constitution to become its arbiter. There is thus a possibility in India’s federal structure of an impasse between the Supreme Court and Parliament which cannot be resolved by referring to the Constitution and which poses a serious risk if not resolved.
Similarly, this wouldn’t be wrong to suggest that Pakistan is one of such countries where these confrontations are replete. It is not a very distant opportunity that we will have the Supreme Court striking down an amendment passed by the parliament for finding it against the “basic structure’’ of the constitution.
The other view on this topic comes out of a uniform practise developed in the commonwealth countries that happen to follow British Parliamentary democracy such as Pakistan. In such systems, more importance is attributed to the principle of ‘separation of Powers’. According to this, the courts power of judicial review is restricted and a more assertive parliament is in place such as in the Great Britain.
Now the question arises whether our Parliament is capable enough to defend it’s domain or will it continue falling prey to the exercise of judicial powers? Judicial activism in Pakistan is not new. It has recently taken a new dimension with the Supreme Court’s judgment on the ruling of Punjab Assembly’s deputy speaker.
The Hon’ble bench of three judges took a different view from their earlier stance in the Presidential reference No.01 of 2022. It was only few months that the judicial view had changed to 360 degrees. The short order also draws attention to the fact that a judge may seek a change of view from their earlier position. Such early change in view may only be a result of faulty juridical sense or the presence of any wish or whimsical proposition that is guiding the mind of a judge.
The whole episode starting from out-of-the-way interpretation of article 63A and culminating in the latest judgment on the deputy speaker’s ruling has only one thing to augur: the jurisprudence is not developing but rather it is the preconceived views, wishes and the whims of judges that are taking precedence over the constitution. Such outcomes can only produce more legal uncertainty that has the potential to seriously breach confidence in an already fragile judicial system of Pakistan.
- It is suggested that the Parliament must come up with some sincere reforms proposals backed by the need to reform important areas and not in pursuit of political ideals. Pakistan must run like a constitutional republic with strict adherence to the doctrine of separation of powers whereby every state organ remains in their own respective area defined by the constitution.
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