Reportedly, the Supreme Court Bar Association (SCBA) has filed a motion seeking a review of the SC’s opinion rendered on a referral by the President on the interpretation of Section 63-A of the constitution. . The president filed the referral under section 186 of the constitution in which the supreme court has advisory jurisdiction. The section reads as follows: “(1) If at any time the President considers it desirable to obtain the opinion of the Supreme Court on a question of law which he considers to be of public importance, he may refer to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President. As is apparent from this section, the court shall only give its opinion and not the decision the relevant clause of the constitution relating to the questions asked.However, the article is silent as to whether the opinion given by the SC is binding and enforceable like the verdicts given by it under its original jurisdiction and call or not.
This question will surely come up again during the hearing of the petition. The request for revision of the SC’s opinion was imperative given the fact that out of five judges, two had expressed their disagreement. They argued that “Article 63-A is a complete code in itself which provides a complete procedure regarding the defection of a member of parliament and its consequences. Any other interpretation of it, in our opinion, would amount to rewriting the constitution and would also affect other provisions of the constitution, which were not even requested by the president. Therefore, it is not our mandate and we see no strength in the questions posed through this presidential reference.
I would tend to follow the opinion expressed by two dissenting judges which, in addition to being strictly in keeping with the spirit of the section, also appeals to common sense. The opinion of the majority bench practically rendered obsolete article 95 of the constitution, which allows parliamentarians to issue a motion of censure against the Prime Minister in office. The motion is usually put forward by the opposition with the help of members of the Treasury benches and independents and if made by members of the ruling party to get rid of a wandering prime minister they usually get support of the opposition. With the current opinion of the Supreme Court, this possibility has been ruled out forever. It also circumvents the procedure provided for in the article to determine the defection of a member of parliament.
In the field of jurisprudence, it is also an internationally established principle that judges are not legislators but arbiters, interpreting the text of the constitution and law drafted by legislators and stating what the text means. They can’t even change a coma in the text of the constitution. It is also agreed that judges, while delivering their verdicts, should exercise the utmost restraint.
Pakistan’s history is full of court decisions that were made in violation of established constitutional principles, inventing judicial dogmas like the doctrine of necessity and validating the conspiratorial removal of chief executives that have had a profound impact and debilitating on the development and consolidation of democracy in Pakistan.
The first such case occurred when the Constituent Assembly was dissolved by Governor General Ghulam Mohammad in 1954. Maulvi Tamizuddin challenged the impeachment in the High Court which overturned the Governor General’s order. However, the Federal Court (Supreme Court) headed by Justice Muhammad Muneer, upheld the dissolution by coining the doctrine of necessity. Judge AR Cornelius was the only dissenting judge. The Supreme Court also upheld Ayub Khan’s martial law based on the doctrine of necessity. Downstream military dictators also benefited from the doctrine of necessity.
It is hoped that the larger SC bench will agree with the views of the two dissenting judges and support the principle that judges are not legislators and should not alter or suggest addition or deletion to any provision of the constitution.