Judges have the ability to pronounce what the law is, not what the law should be.
On June 26, 2016, a large group of Americans gathered outside the American Supreme Court, patiently awaiting the Supreme Court’s judgment on the legality of same-sex marriage. The day ended with liberals on the left and young millennials celebrating the Supreme Court’s decision to recognize same-sex marriage on an equal footing with heterosexual marriage, and to reject state prohibitions on same-sex marriage. Despite the enraged throng encircling the Supreme Court building, yelling pro-same-sex marriage chants, and waving an American flag showing concord between the American ethos and same-sex marriage, Chief Justice John Roberts’ spirit stayed steadfast as he delivered a forceful dissent. “But this Court is not a legislator,” he said in his famed dissent. We shouldn’t be concerned about whether or not same-sex marriage is a good idea. According to the Constitution, judges have the ability to pronounce what the law is, not what the law should be. He went on to say, “It might be tempting for judges to mistake our personal preferences with the necessity of the law.”
A presidential referral was also filed at Pakistan’s Honourable Supreme Court at a time when political and constitutional tensions were at an all-time high. The current PTI administration was in its closing days in power, blatantly calling its dissident members traitors to their own nation, while the Pakistan Democratic Movement alliance was preparing for the difficulties that the high position it would soon hold awaited them. It was a period when the anti-American narrative concocted by the deposed leader Imran Khan for orchestrating a coup against his administration was perceived as extremely heated by the people. To some of his most fervent fans, his self-projection as a victim of an American-backed plot may unwittingly resemble a Pakistani rendition of Iran’s President Mohammed Mossadegh.
The Honourable Supreme Court of Pakistan’s five-member bench decided on this question definitively and in unambiguous language. One advantage of reading the majority judgment is that it has established certainty in an area of law that has been plagued by political assumptions. The harsh punishment imposed by the Supreme Court may have made future defections by Parliamentary Party members more difficult.
The question is whether the Honourable Court may have overstepped its authority in its interpretation. That appears to be the case. Article 63A was originally enacted to address the Parliamentary Party’s frequent defections and floor-crossing. Only when a member voted against or refrained from voting against the Parliamentary Party’s direction may Article 63A be applied. When a member failed to follow the Parliamentary Party’s instructions, the party’s leader had the authority to issue a statement of defection. If a party leader decides to issue a declaration of defection, the Pakistani Election Commission will use its powers to remove the defected member from office. The punishment of being de-seated is preceded by two crucial limbs. The first is the member’s failure to follow the Parliamentary party’s particular instruction by voting or abstaining from voting along the party line, and the second is the party leader’s judgment in declaring the member to have deserted. The Constitution gives the party leader some leeway in pardoning a member’s dereliction, and in such an instance, the Election Commission cannot remove the person from office.
However, the Honourable Court’s decision that votes cast against the party line should not be tallied imposes a new penalty that the Constitution never intended. Article 63A should be seen as a punishment provision in the Constitution with a limited reach within the constitutional framework. In reality, in the foundational decision of Wukala Mahaz Barai Tahafuz-i-Dastoor, Justice Ajmal Mian enunciated a restricted interpretation of Article 63A. Even instances committed by members outside the area of Parliament or Provincial Assemblies, according to his opinion, cannot be brought into the scope of defection by a member, regardless of how seriously harmful or even enormous, they are to the political party. The Supreme Court has pushed the limits of Article 63A beyond its logical reach by introducing additional punishment before an Election Commission determination. Following the Honourable Court’s ruling, a member will be sanctioned for voting against the party’s direction prior to the party head’s statement of defection, which usually signals the start of legal action against him. If the punishment for “rejecting the votes of the defectors” had been intended by the Constitution, it would have been included in Article 63A. When the defection provision was revised twice, the first in 2002 by the Legal Framework Order, 2002, and most recently in 2010 by the Eighteenth Amendment, the legislature had the opportunity to do so.
The boundary between interpreting and rewriting the Constitution is narrow, making its interpretation a sensitive process that necessitates critical engagement with traditions contained in superior court rulings as well as the country’s constitutional framework. It is not a mechanical exercise to deduce a response by reading two or more sections of the Constitution together; such an answer frequently risks extending the design of the provision out of its context and may create a scenario in which one’s own subjectivity overshadows its intended meaning. Fearing that a subjective reading of Article 63A would be imposed, the minority justices unanimously dissented, holding that the defection provision is a complete code in and of itself and that any additional interpretation would be tantamount to rewriting the Constitution.