“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.

Updated Jul 13, 2012 12:10am

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Comments (10) (Closed)

Jul 13, 2012 06:58pm
Very eye opening and reasoning views. I appreciate it.
logic Europe
Jul 13, 2012 10:51pm
the only solution is to disband the gang of the hand picked judges who are clearly abusing the constitution and have become a law into themselves The behavior of supreme court is no different than that of dictators who thought they were the real wisdom and capable of reforming the system ,PEOPLE rejected them and so will they reject these judges LET ONE OF THEM FIGHT THE NEXT ELECTION AS INDEPENDENT CANDIDATE the will of people will state them in the eyes ,,,Pakistan has been made a laughing stoke for the whole world
Jul 13, 2012 04:08pm
The author of this article has attempted to justify the verdcit of the Hon'ble SC from every angle, but while doing so he overlooked the very basis on which situatiion reached to such an extent, we all are aware of this fact that article 248(2) of the constitution exempt the President of Pakistan from all the criminal cases than how can we expect this former PM to write a letter to swiss authorities and ask them to open the graft cases against the president of the country. Either the parliament should have withdrawn the immunity during the passage of 18th constitutional amendment or the judiciary should have shown magnanamity or judicial restraint in passing this order. There were approximately 8000 criminal cases which were covered under the NRO can the author of this article please enlist the details of the cases which have been touched upon by this hon'ble court which were withdrawn under the garb of NRO. As of now the impression is getting strong foothold that judiciary is biased and the CJ himself has political inclination and i believe this impression whether right or wrong need to be address and remove for the betterment of judiciary.
Jul 13, 2012 07:01pm
Excellent piece of writing.Galseworthy wrote a play "Justice" discussing the plight of solitary confinement and when Churchill watched this play on the stage, he introduced reforms and amended the rules of solitary confinement but today all the sane voices are crying hoarse against the self proclaimed healers but they are insistent that their interpretations are the right one. In the echelons of power they are having a quarrel between "Sass" and "Bahoo"at the cost of the poor masses.
riasat ali
Jul 13, 2012 02:57pm
i have gone through the above article and also the above comments. just ask a question to yourself whether government is on its right path(not going into the question that which side is superior than other}. TO me the answer must be NO then who will ask the government to be on right way?? i think there is no one to take this step except the SC. So not going through the powers given in the constitution I THINK the SC is enjoying the DOCTRINE OF NECESSITY what was used in the past by the ARMY also having the aid of APEX COURT. So it is our DEMOCRATIC government which is responsible of the whole prevailing situation. Army's DOCTRINE OF NECESSITY was challenged in the SC but at which forum the DOCTRINE OF NECESSITY of SC could be challenged??
A J Khan
Jul 13, 2012 12:55pm
The correct caption should have been Judicial Dictatorship. This decision was a contempt of peples will. If we have to live under a dictatorship, then I would prefer a dictator from Military than to accept one from inefficient and still unorganised and incompetant Judiciary which still has to correct itself.
Jul 13, 2012 03:44am
Parliamentarians are elected by the people. This does not mean by definition that each and every act of theirs represents the will of the people. Their actions must be confined by the constitution as there is no society without a constitution, no order, no nation. And the supreme court is the sole interpretor of the constitution, period. Being elected does not make you above the law. You are answerable to the court in the same manner as any other ordinary citizen.
Abdul Waheed
Jul 13, 2012 05:39am
In Pakistan Military Establishment and judicial Establishment are very powerful and unaccountable viz-a-viz elected institutions like Parliament, Political President, Political Prime Minister whose tenure is not only very limited but they are also accountable. Judges who are permanent officers and enjoy the best pay packages with perks, priviledges, protocols and above all unaccountable authority. Like basic psyche of the people of this region to grab sources / authority of weaks, the present judiciary is overstepping into domain of weak / helpless political government but this state of affirs is causing instability in the country which is already surrounded by many problems. This hostile and confronting judiciary has become a big problem for the weak government but also for our country.
Asad Raza
Jul 13, 2012 06:23am
In the Middle Ages, ancient Europe was ruled by the King (with his Army) and all his actions were legalised by the Pope, who represented the will of the God. We are still in the middle ages, only difference is that the COAS himself is the King and Supreme Court is the Church. We are supposed to follow the order of the Court and even if verbally we criticize it, we will invite the wrath of God (here they write constitution and mean themselves) The readers must be aware that in these societies, King and Pope did not relinquish their powers voluntarily. Countries like England, France and even United States (include Bangladesh also) had to raise arms to get their rights. If the parliament and the democratic people do not exercise their rights, very soon this country will be run over either by Army or Taliban. They have no choice
Jul 13, 2012 09:04am
The SC is reading the constitution in a way that enhances its own power over the elected member.! They are also the final arbiters in terms of validating amendments and new laws and thus have a good mechanism to protect their own interest. All this will not be too bad if they were not using every loophole in the constitution to undermine the power of the elected members! Soembody needs to correct this imbalance of power, but unfortunately the Sc has the power to block any such corrections also.