In the light of constitution, the apex court’s decision to prohibit Nawaz Sharif from heading his political party is nothing but an unfair stretch of its ambit.
The learned SC asserts that ‘(U)nder Article 63-A of the Constitution, the position of a Party Head of a political party that has a representation in, inter alia in the Parliament has a central role in the performance of duties by the Members of the Parliament’.
The Court goes one step further and holds that ‘…the Party Head must necessarily possess the qualifications and be free of the disqualifications of Article 62 and 63 of the Constitution.’
Firstly, such a holding is inconsistent with the well-established principle of supremacy of a written constitution. In a written constitution, such as ours, the judiciary is bound to respect and obey the constitution in its current form and is restricted to what is actually provided within the four corners of its text. And what is not provided in the text, such as qualifications pertaining to a party head, cannot be written into it by judicial fiat on any pretext.
In this case, not only in Articles 62, 63, 63-A but in our entire Constitution there’s no mention of the qualifications, disqualifications, duties or appointment of a Party Head of a political party — other than a brief mention of a Party Head’s duty under Article 63-A(1) to file a declaration of defection of a member of Parliament with the Election Commission and to issue a show cause notice to that member.
In its mission to interpret the constitution to determine the fate of a disqualified party head, the apex court was barking up the wrong tree
Secondly, the ruling seems to violate the fundamental principle of separation of powers of the three branches of the government, pursuant to which only the Legislative branch is empowered to amend or add any other provision or matter in the Constitution. The judiciary’s role is merely to interpret the constitution and not to advocate and institute changes in it, however well-intentioned or persuasive they might be.
Articles 62, 63 provisions are specifically meant only for members of Parliament and not for Party Heads. The new addition and application of these Articles 62,63 for the qualifications and disqualifications of a Party Head amounts to an amendment to our Constitution, which we all know can only be affected by our Legislative branch and not by the Judicial branch in accordance with the above principle of separation powers.
Thirdly, in conformity with the established cannons of constitutional construction the subject of the title or caption of an Article or Sub Article is crucial in interpreting its substantive text. The title of Article 62 is: ‘Qualifications for membership of Majlis-e-Shoora (Parliament)’; the title of Article 63 is: ‘Disqualifications for membership of Parliament’; and the title of Article 63-A is: ‘Disqualifications (for memberships of Parliament) on grounds of defection, etc.’
It is clear that all these Articles pertains to specifically and exclusively with the topic of qualifications and disqualifications for membership of the Parliament. They cannot be twisted and inter- transposed to include the qualifications and disqualifications for Party Heads of a political party- which is exactly what our SC via this ruling is mandating us to do.
Fourthly, in its hell bent mission to insert the qualifications or disqualifications for a party head in the Constitution when it was not included by the framers of the Constitution the learned Court was barking up the wrong tree. It improperly invoked morality, religion, the Muslim faith, ‘the Islamic Ideology’, ‘the Objectives Resolution’, doomsday party head as a ‘kingmaker’ and even ‘the integrity of Pakistan’ in this endeavour.
These misplaced arguments might have been valid and persuasive but only in the context of deliberations in the Parliament if the legislators were debating to enact an amendment in our Constitution to provide for qualifications and disqualification for a Party Head.
These arguments however passionate or overpowering cannot be used by the Court to what effectively amounts to amending the Constitution. Rightly or wrongly, in our Pakistan Constitution the subject matter of qualifications or disqualifications for the head of a political party is left out. But it cannot be made a part of the Constitution via judicial interpretation on any ground such as the Islamic Ideology or the Objective Resolution or ‘morality’, etc.
Fifthly, a ‘harmonious’ or a holistic reading of the Constitution that weave together its disparate provisions, as noted above, cannot add substantive provisions lacking intent of its framers. As far as the Election Act of 2017, with its Amendment, is concerned neither the presence nor absence of a non-obstante clause can affect the operation of this act by the Parliament, the supreme law-making body.
Sixthly, it’s a basic principle of constitutional law that adjudication of political issues is deemed outside the realm of judicial interpretation. Can anyone doubt that the matter of qualification, appointment etc of the head of a political party is inherently not political in nature? Matters of politics and political parties are generally inadmissible for hearing in a court of law, suo moto Article 184(c)(3) jurisdictions or not.
Indeed there are practical considerations as to why political party issues such as qualifications and appointments of officers of political parties are inadmissible and non-justiciable for a hearing in the courts of law.
For instance, these deliberations would inevitably open up a hornet’s nest, a floodgate of political litigation to swamp our judicial system, besides imposing an almost unbearable task on our already overburdened courts to lay out and sustain judicially-managed standards and rules for the functioning of political parties.
One may agree with the Court’s belief that heads of political parties conducting parliamentary business must be ‘persons of probity, integrity and high moral character.’ But that determination, Sir, is made by the people through laws enacted by their chosen representatives in the Parliament rather than by the judiciary.
Seventhly and regretfully, this judgment is also wrong on another constitutional ground. It impinges upon the basic freedom of association and the fundamental right of citizens to form and establish political parties with terms of their choice under Article 17 of our Constitution.
Finally, if Pakistan laws and our Constitution are somehow thought to be deficient in any respect then we must remember the adage that we have to live and abide by the Constitution we have and not by the Constitution we wish we had -until we change it.
The writer is a US-based attorney, ex Gen Counsel, author, analyst and speaker
Published in Daily Times, March 26th 2018.