In the midst of the recent political turmoil, the doors of the courts were repeatedly knocked on the pretext that wrongs have been committed by other political parties in contravention of the Constitution. It is only natural therefore, to have poured some thought as to what is the Constitution.
The Constitution is nothing but a representation of the “will of the people”. The phrase “will of people” has been used twice in Pakistan’s Constitution, once in the preamble and once in the constitutional oath, provided in the third schedule, taken by the soldiers of the armed forces under Article 244. The latter bounds the members of the armed forces to “uphold the Constitution of the Islamic Republic of Pakistan which embodies the will of the people.”
The more important question is whether, while interpreting the constitution, judges should take into account the will of the people. Admittedly, the position is not settled in the legal academic circles, and it may never be. This split of ideas in the legal sphere can, perhaps, best be illustrated by the recent judgment of the Supreme Court regarding the reference issued by the President, pertaining to the interpretation of Article 63A of the Constitution.
On one hand, the majority of the judges – three to be precise – held that the defection is to be seen as a ‘cancer afflicting the body politic’ which ‘cannot be countenanced’. Hence, the vote of any legislator voting in violation of the party line shall not be counted.
It is pertinent to note that nowhere in Article 63A has it been provided that upon defection the votes casted by the defectors are to be deemed null.
While on the other hand, the minority – two judges – held that the Article 63A is a “complete code in itself” and such an eventuality is not envisaged by it on its bare reading. It would be nothing but a ‘re-writing’ of the Constitution to say that such votes are to be disregarded by the presiding officer.
It is hard to establish as to which of the two approaches – the progressive or the restrictive – is better than the other. However, while keeping the cons of both approaches in mind, it can be argued that it is the former that is the lesser of the two evils. As has been laid out by Lord Denning, a revolutionary British judge, the role of the judiciary is “to interpret the law and mould it to meet the needs of changing time… (while remaining) outside the sphere of politics.”
The intention of the Constitution itself is that such a progressive approach is adopted. As stated by a former Chief Justice of Pakistan in one of his judgements, the Constitution is to be interpreted as an ‘organic whole,’ an interpretation of any of its provisions in isolation from the rest may lead to ‘misleading’ results. Interestingly, he also once remarked that the very reason that the Supreme Court judges were holding their office was because they were the ‘representatives of the will of the people.’
Thus, if the constitution is read as an ‘organic whole,’ it would require that the interpretation of any of the constitutional provisions by the judges be done so by taking into account the ‘will of the people’.
Having said that, it is still important to ask, what the ‘will of people’ is for judges. Though the answer is more complex and even controversial at times, it can be said that it is simply that the judges must ensure the well-being of people and eradicate any evil, or to use the language of the majority judges, any ‘cancer’, that may appear on the surface of the body politic.
This approach is not without its risks either. Perhaps the most obvious of all is the fear of judges submitting to politics, and giving populist decisions while ignoring all principles of natural justice and public morality. In the same breath, it must be acknowledged that this approach puts minorities at peril. Since it is the minority that the Constitution must be protective of, as the majority can make their desired amendments to it anyways.
Hence, it is an agonizingly thin line that the judges have to walk upon, an inch of deviation either way and they fail their duty as the representatives of the will of the people and the protectors of the Constitution.
In short, they must ensure that the interpretation they accord to the Constitution is a true representation of the will of the people, while keeping their distance from the realm of the legislature and politics, and all along protecting the fundamental rights of minorities.