“Constitutional judges often come near to being applied political theorists.” — Prof David Robertson, University of Oxford
THE removal of prime minister Yousuf Raza Gilani by the Pakistani Supreme Court was indeed a historic decision.
But what may be more radical and far-reaching was the reasoning given by the SC for the removal. Such judicial reasoning gives us insight into the judicial thinking on democracy and the future role of the judiciary in the democratic process.
Chief Justice Iftikhar Chaudhry’s judgment of 50 paras, Justice Jawwad S. Khawaja’s of 11 and Justice Khilji’s of 45 can best be described as an exposition of ‘democracy (the judicial version)’.
Chief Justice Chaudhry, in his detailed judgment, makes three important points.
Firstly, it could not have been held by the Speaker of the National Assembly that after the SC’s contempt judgment dated April 26, 2012 convicting the prime minister, no question of disqualification of the prime minister, under Article 63(1)(g) of the constitution, had arisen, because the judgment itself raised the issue that the prime minister was likely to be disqualified under the said article for ridiculing the judiciary.
Secondly, the ruling of the Speaker of the National Assembly was wrong because by not sending the disqualification case/reference of the prime minister to the Election Commission of Pakistan for decision, she had made “an attempt to overrule the judgment” of the SC in the contempt case.
Thirdly, once a competent court convicts a member of parliament e.g. for ridiculing the judiciary, the role and discretion of the National Assembly speaker or Senate chairman and the ECP is limited to enforcing the judgment of the court by sending the disqualification case/reference and issuing the disqualification decision.
Justice Khilji, in his separate note, elaborates on the points raised by Chief Justice Chaudhry but makes a further jurisprudence contribution. Regardless of the powers of the National Assembly speaker, Senate chairman and the ECP, the SC and high courts have independent constitutional powers under Articles 199 and 184(3) of the constitution to decide questions of qualification and disqualification of members of parliament.
Justice Khawaja, in his separate note, argues that the courts should not engage “in abstract political philosophy” but in answering the critical question as to whether “elected members of parliament alone represented the will of the people and, therefore, were not answerable to this … court”, develops anything but an alternative political philosophy of democracy.
This philosophy is based on five basic propositions. Firstly, the constitution manifests the will of the people and in support of this argument, he quotes the preamble of the constitution, stating the “will of the people of Pakistan to establish (a constitutional) order”.
One could infer from this that the fundamental principle/essence of our democratic order is the constitution, not elections. Secondly, if the constitution represents the will of the people then it is a “people’s constitution” and it follows that this people’s constitution is supreme, not parliament.
Thirdly, if the will of the people is manifested through the constitution and the courts are enforcers of the constitution then the courts’ power of contempt, and the power to disqualify members of parliament for violations of the constitution, are merely mechanisms used by the courts to ensure compliance with the people’s will i.e. the constitution. In short, the “court and its empowerment by the people through the constitution has to be seen as a bedrock of democratic rule”.
Fourthly, it follows that the courts’ constitutional duty to keep elected representatives in compliance with the will of the people manifested in the constitution is, more importantly, also the courts’ “democratic role”. Out of this judicial reasoning, a number of implications and questions arise.
Firstly, members of parliament can now only represent the democratic will of the people if they fulfil both the criteria of political representation (as determined by elections) and constitutional representation/compliance (as determined by the courts).
Therefore, in future, more contradictions may arise between elected members having substantive political representation/people’s mandate but falling short of constitutional representation/compliance as judicially determined.
Secondly, the present constitution is also a mixer of the ‘will’/amendments of dictators (Zia and Musharraf) and forced and necessary compromises made by members of parliament to accept such ‘dictatorial will’/amendments.
Yes, the constitution as a principle of governance is paramount but can each and every word of it also be considered as expressing the will of the people? Thirdly, although Justice Khawaja relies on the preamble to support his ‘judicial democracy theory’ he forgets to note that the preamble also states that “wherein the state shall exercise its powers and authority through the chosen representatives of the people … through our representatives in the National Assembly, adopt, enact and give to ourselves, this constitution”.
Moreover, even in quoting the preamble, he adds the words ‘a constitutional’ before the word ‘order’, although these words do not find mention in the preamble. Therefore, is Justice Khawaja’s reading of the preamble really correct? Or is it only correct because the SC’s interpretation is final and binding?
Fourthly, the qualifications and disqualifications under Articles 62 and 63 of the constitution, and the contempt power to punish, is so broad and partially subjective that this gives tremendous discretionary power to the courts in electoral issues and over members of parliament. In short, the danger of misapplication of such tremendous power cannot be ruled out.
Fifthly, in view of Justice Khilji’s judgment, more and more electoral and disqualification disputes may now be decided, on a fast-track basis, in constitution petitions under Articles 199 and 184(3). As a result, the role of the National Assembly speaker, the Senate chairman and the ECP, in electoral and disqualification disputes, will become secondary and less significant.
This conflict between electoral democracy and judicial independence is a conflict over who better represents the people’s will.
The good news is that at least, both the political and judicial elites are fighting over, and not against, democracy.
The writer is a lawyer.