The Supreme Court has recently issued its detailed reasons for its opinion on the Presidential Reference regarding defections. Justice Munib Akhter, a powerhouse in his own right, must be praised for his masterful articulation of legal principles, and his robust and persuasive answers to the questions posed by the President.
However, despite the richness of the opinion itself, the reasoning and rationale provided clearly belies an underlying tension regarding the powers of the judiciary and its scope of judicial review, particularly in relation to its holding that the votes of defectors, if cast, are to be disregarded. The judgment does well to delicately tiptoe around the question of whether the court had interpreted the constitution, or dare I say, amended it without recourse to the amending provisions in the constitution itself. In the words of Frederic R. Coudert, writing in 1904, “[t]hat the law must change with the development of civilization is plain; the doubt arises as to how far fundamental institutions should be modified or abrogated by the Court rather than in the constitutionally prescribed way.”
In the judgment in question, the Supreme Court attempts to divide judicial interpretations into two neat categories, that is, judicial interpretations in relation to statutory provisions and those in relation to constitutional articles. As per the Supreme Court, statutory interpretations are primarily concerned with legislative intent, are transient in nature, and have wholly separate considerations to constitutional provisions. Interpretation of constitutional provisions, on the other hand, is more holistic in nature, flexible in terms of the times, and in consonance with overall constitutional objectives and purposes.
In relation to the latter, the Supreme Court relied on the concept of the ‘living tree’, as espoused in Canadian jurisprudence, and supported in our jurisprudence, which essentially held that constitutions were living trees capable of growth and expansion within its natural limits. As such, dynamic and progressive interpretations were to be undertaken keeping in mind the needs of the current times. In keeping with this, the Supreme Court held that to ‘interpret’ is to understand the constitution, and that means not just the constitutional text in its express form but also the underlying principles, rules, and bases that together constitute laws.
Although the Supreme Court identifies two pathways for judicial interpretation, beyond the realm of interpretation lies decision-making tantamount to amending the law, or as some have come to know it, judicial amendments. It’s a fine line between the two, and in a nutshell, when an exercise to decipher the law progresses from the realm of discovering rights already existing in the constitution to creating them out of thin air, one has transgressed the bounds of judicial review into that of legislative competence.
So where does the legitimate exercise of interpreting the law end and the problematic overreach in judicially amending the law begin? This is a question that has kept many scholars and legal practitioners alike intrigued. The Supreme Court would have us believe that constitutional interpretation cannot be shackled by the past or the mere text of the constitution. However, if not by this, then by what is it limited? This is the burning question that needs to be addressed.
On a very basic level, it is clear that whatsoever the test or limits of interpretation are, no interpretation can take place in a vacuum, in disconnect with the constitutional framework, and in terms of the ‘living tree’ lingo, detached from its ‘roots’. As per Emmett Macfarlane, in order to identify a meaningful distinction between judicial amendments and judicial interpretation, the distinction should hold regardless of whether one privileges fidelity to the text, the purpose of the constitutional provision, the intent of the constitutional framers, or even progressive “living tree” constitutionalism.
In essence, Emmett Macfarlane posits that textual interpretations are important but not conclusive, framers’ intent and the original meaning are instructive but not final, and the overall political and legal consensus in regard to the issue in question is helpful, although not decisive. The idea is to judge the proposed interpretation from the touchstone of a multi-faceted formulation, that is, from the perspective of several factors rather than merely one.
It is from this perspective that I propose to view the ratio of the Supreme Court in regard to the disregard of dissenting votes of defectors. In terms of context, it may be noted that the Supreme Court, in its judgment, has relied upon two articles of the constitution to hold as such.
Article 17 deals with the right to assembly and contains within it the right to form or be a part of political parties, which also includes the right of political parties to take part in the electoral process, amongst other things. The Supreme Court has held that political parties retain rights to ‘healthy functioning’ under Article 17, and as a corollary thereto, protection from unhealthy functioning. The Supreme Court had adjudged defection as a cancer which adversely affected the healthy functioning of political parties, and hence, would be an infringement of the rights given under Article 17.
It also relies upon Article 63A of the Constitution of Pakistan, 1973, which deals with defections and the consequences of the same. The Supreme Court has tackled this article in detail in its judgment, and in doing so, has concluded, quite rightly, that Article 63A entails an internal mechanism of accountability for those who defect from party lines. By internal, the Supreme Court meant that defectors would have to face possible disqualification from their seats as well as party memberships by virtue of an internal party mechanism.
If the Supreme Court had perhaps left the matter at that, the instant debate would not be required. However, upon dilating the contours of the aforementioned Articles, the Supreme Court thereafter proceeded to hold that the combined reading of Article 63A and Article 17 of the Constitution of Pakistan, 1973, requires for an internal mechanism of accountability for defection, as well as an external one (reflected by the holding that dissenting votes of defectors must be disregarded and not counted). The former enunciation is perhaps unnoteworthy, and even expected, however, the latter articulation is surprising and hence the subject of our discussion.
At arriving at such a conclusion, the Supreme Court had held that Article 17 was an umbrella provision, whereas Article 63A, presumably, was in execution of the same. It may be referred to as a trigger of sorts. The constitution required both an internal and external method of accountability for defection in order to fully give effect to Article 17, and hence, despite Article 63A admittedly being merely in relation to an internal mechanism of accountability, the combined reading would require for both internal and external mechanisms to come into existence. This, as per the Supreme Court, would be the mandate of a holistic reading of the constitutional framework which seeks to uproot defection from the system itself.
The problem in the reasoning of the Supreme Court lies in the fact that the external mechanism does not appear to stem from the text of any of the two provisions, or any other for that matter, nor is there any original meaning, framers’ intent, or any other factor which appears to justify such a holding. In fact, the Supreme Court had duly acknowledged that neither provision independently offered any external mechanism of accountability for defection, one way or the other. In effect, in establishing one despite this, the Supreme Court has in essence held that the sum of the two articles is greater than its parts, that is, together they create a right or obligation which could not be said to exist independently. Apparently, such an external mechanism materializes as a bridge between Article 17 and Article 63A. Put in another way, the Supreme Court appears to have identified a gap in the constitutional framework which it then sought to fill by creating this external mechanism.
Patrick J. Monahan had stated in his article titled “The Public Policy Role of the Supreme Court of Canada in the Succession Reference”, that where courts seek to fill gaps in a constitution, they can address it by virtue of any one of two ways. They can conceive of their role as a constitutional drafter, and in view of this, fill in the gap by relying upon its own conception as to the best or most appropriate set of constitutional norms that should be added to the existing text. Alternatively, he says, the court may attempt to fill in that gap by adopting an interpretation that is most consistent with the underlying logic of the existing text, and then to rely upon that logic in order to complete the constitutional text. This latter form of filling in the gap may be termed as the ‘interpretative theory’.
In relation to defection, on the surface, the Supreme Court seemingly relies such “interpretative theory” to make its case, whereas in fact, upon further prodding, it becomes more apparent that it has actually delved into the role of a constitutional drafter. The constitution may very well consider defection as evil and unwanted, but does that necessarily mean that the constitution must have intended for the existence of a mechanism which was never mentioned in the text, for which no discernible intention can be seen in the drafting of defection laws, which was not evidenced in the history of defection practices and which even otherwise has not gained any traction in political or legal circles? It should not be lost sight of that the provisions on defection were dealt with and curated on at least three separate occasions by the legislators, and not once did such a penal mechanism find its way into the law.
The constitution seeks to establish a balance between upholding parliamentary democracy and uprooting unwanted practices. Even the Supreme Court acknowledges this. Hence, it makes complete sense that the constitution would want to root defections from the system without actually rooting the system itself. It would seek to limit and discourage defections whilst retaining the sanctity of the vote and the autonomy of the legislators to vote as they wish and subject to the internal mechanisms of accountability as mentioned in Article 63A. By going one step further and outlining a mechanism to disregard votes, the Supreme Court has left the quarters of judicial interpretation and assumed a role akin to a constitutional drafter. The Supreme Court has not told us what the demands of the constitution are, but rather what they ought to be.
When a judicial setup begins interpreting text in such a manner that it appears to be less in the realm of interpretation and more so in that of legislation, the constitutional setup itself becomes imbalanced. After all, what is the use of an amending provision in the constitution if five unelected persons can simply change and modify it with the stroke of their pens? What remains of the sanctity of a constitution, which is the social contract between the state and its people, if the power to change it is not solely with the populace, but also a few good men who say they know better? What is the use of painstaking consultations, negotiations, and consensus building in society, when all you need is a judicial verdict?
These questions, amongst many others, shall keep arising whenever a judicial decision appears to create law as opposed to interpreting it. The debate around the limits of the judiciary’s jurisdiction vis a vis the peoples’ representative shall continue for many decades to come, if not more. However, in determining the boundaries of its own interpretative powers, the Supreme Court may be better served in not only answering the questions before it, but also those that arise from it.
After all, it should not be forgotten that the constitution, in terms of it being a living tree, was planted by the people, nurtured by the people, protected by the people, and without a shadow of a doubt, has ownership in the people, and the judiciary, for all its worth, is and has always been merely its keeper. Therefore, it is not befitting that any expansion or growth of the ‘living tree’ be at the hands of its people, and not its keeper?
The writer is a lawyer and can be contacted at : email@example.com