Notes of dissent – 09 Jul 2022

The roles of parliament and the judiciary are clearly enunciated in the constitution of Pakistan, and ideally there should have been no confusion about them in the first place. This has been further clarified by Supreme Court’s Justices Jamal Khan Mandokhail and Mazhar Alam Miankhel with their observations on the majority decision in the presidential reference in the Supreme Court seeking interpretation of Article 63A. Justice Mandokhail points out that any amendment, addition or deletion in the constitution is to be exercised “within the parliament” and that judges have “no authority to assume the role of the parliamentarians”. The dissenting note says that judges while interpreting the constitution “should limit themselves to a fair reading of its words and the intention of its framer, and no more”. Justice Mandokhail adds that otherwise, “judges enter the realm of creating, not just interpreting the constitution”. These are important words from a justice of the apex court. Back in May, a five-member SC bench in its short order regarding Article 63A gave its verdict in a 3-2 decision, and held that dissident members’ votes will not be counted, but that the question of a lifetime ban on floor-crossing members was too vague for the court to answer. Legal observers had at the time pointed out that the ruling had in a way rewritten the constitution while impinging on parliament’s functioning, and that such interpretation of Article 63A made the purpose of this article redundant – essentially making a vote of no-confidence against any future prime ministers or chief ministers extremely difficult.

We have in the recent past seen rising concern about judicial ingress into parliamentary affairs. Justice Miankhel has in his dissenting note said that there is a principle of trichotomy of powers that the judiciary must respect without trying to “resolve sensitive political issues”. The dissenting notes do not favour floor-crossing in any way; they simply stress on knowing the causes and circumstances of defection by a member. Democracy has been interrupted several times in the country by unconstitutional forces. There have been campaigns to portray all parliamentarians as corrupt just to endorse such unconstitutional acts. For democracy to prosper in Pakistan, it is imperative that due process takes its course and the courts remain in their domain. For the latter, the most important part of the job – per some legal experts – is remembering judicial restraint. For more than a decade now, the judiciary has been perceived to have become far more interested in political matters than is thought necessary – what started during Justice (r) Iftikhar Chaudhry’s tenure and was rampant during Justice (r) Saqib Nisar’s time raised a lot of questions about the judiciary’s role as a server of justice and not a framer of the constitution. Justices Mandokhail and Miankhel have made it clear that it is the authority of parliament to consider the consequences of defections, upholding the principles of judicial restraint, trichotomy of powers and strict institutional jurisdictions.

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