The Supreme Court recently issued its detailed reasons for its opinion on the President’s reference to immigration. Justice Munib Akhtar, a powerhouse in his own right, must be commended for his eloquent articulation of legal principles and his strong and persuasive answers to the questions raised by the President.
However, despite the richness of the opinions, the arguments and arguments clearly convey an underlying tension about the judiciary’s power and scope of judicial review, particularly in its holding that the vote of defectors, if cast, is disregarded by the Court as interpreted by the Constitution, or not resorted to by constitutional amendment provisions. As Niei amended it, the judgment may touch on this question subtly. Frederick R. In the words of Coudert, writing in 1904, “[t]As civilization develops, laws must change. Doubts arise as to how far fundamental institutions should be modified or abrogated by the courts rather than in a constitutionally prescribed manner.”
In the judgment in question, the Supreme Court attempted to divide judicial interpretation into two neat categories, namely, judicial interpretation relating to statutory provisions and constitutional articles. According to the Supreme Court, statutory interpretations are primarily concerned with legislative intent, are transitory in nature and have entirely separate considerations of constitutional provisions. Interpretation of constitutional provisions, on the other hand, is more holistic in nature, flexible in terms of time and consistent with overall constitutional intent and purpose.
In regard to the latter, the Supreme Court relied on the ‘living tree’ concept upheld in Canadian jurisprudence and supported in our jurisprudence, which essentially held that constitutions are living trees capable of growth and expansion within its natural limits. Therefore, dynamic and progressive interpretation should be adopted keeping in mind the needs of the present time. Keeping this in mind, the Supreme Court held that to ‘interpret’ is to understand the Constitution, and it means not only the constitutional text in its express form but also the underlying principles, rules and principles which together constitute the law.
Although the Supreme Court identifies two avenues for judicial interpretation, taking a decision beyond the bounds of interpretation is tantamount to amending the law, or as some have known it, judicial amendment. It is a fine line between the two, and in short, when an exercise of statutory interpretation proceeds from the realm of discovery to create out of thin air rights already existing in the Constitution, one has transgressed the bounds of judicial review. Legislative power.
So where does the legitimate exercise of statutory interpretation end and the problematic overreach of statutory amendment begin? This is a question that has intrigued many scholars and legal practitioners alike. The Supreme Court would have us believe that constitutional interpretation cannot be bound by the past or the text of the Constitution. But if not by what is it limited? This is a burning question that needs to be addressed.
At a very basic level, it is clear that whatever the test or limit of interpretation, no interpretation can occur in a vacuum in terms of ‘living tree’ lingo, disconnected from the constitutional framework and detached from it. According to Root Emmett McFarlane, to mark a meaningful distinction between judicial amendment and judicial interpretation, the distinction should hold regardless of fidelity to the text, the purpose of the constitutional provision, the intent of the constitutional framers, or even progressiveness. “Living Tree” Constitutionalism.
In essence, Emmett McFarlane holds that textual interpretations are important but not conclusive, that the Framers’ intent and original meaning are instructive but not conclusive, and that the overall political and legal consensus on the issue in question is helpful, though not decisive. The idea is to judge the proposed explanation from the touchstone of a multifaceted formulation, that is, from the perspective of several factors rather than just one.
It is from this perspective that I propose to look at the ratio of the Supreme Court in disregarding dissenting votes of defectors. In view of the context, it may be noted that the Supreme Court relied on two articles of the Constitution in its judgment.
Article 17 deals with the right of assembly and includes the right to form or be part of a political party, which inter alia includes the right to participate in the electoral process of political parties. The Supreme Court held that political parties retain the right to ‘wholesome functioning’ under Article 17 and, consequently, protection from unwholesome functioning. The Supreme Court ruled defection as a cancer which adversely affects the healthy functioning of political parties and therefore would be violative of the right conferred under Article 17.
It also relies on Article 63A of the Constitution of Pakistan, 1973, which deals with defection and its consequences. The Supreme Court in its judgment dealt with this article in detail, and in doing so, concluded that Article 63A includes an internal mechanism of accountability for those who deviate from the party line. Internally, the Supreme Court meant that defectors would face possible disqualification from their seats as well as party membership due to the internal party system.
If the Supreme Court had probably left the matter there, the immediate debate would not have been necessary. However, after expanding the contours of the aforementioned clauses, the Supreme Court next held that a combined reading of Article 63A and Article 17 of the 1973 Constitution of Pakistan requires an internal mechanism of accountability for defection, as well as an external one (reflected by the holding that dissenting votes by defectors must should be ignored and not counted). The former accent is perhaps not noticeable, and even expected, but the latter accent is surprising and therefore the subject of our discussion.
In reaching such a conclusion, the Supreme Court held that Article 17 was an umbrella provision, whereas Article 63A, perhaps, was implemented. This can be referred to as a type of trigger. Article 17 of the Constitution required an internal and external mechanism of accountability for defection to be fully operationalized and therefore, despite Article 63A relating only to an internal mechanism of accountability, a combined reading would require both internal and external mechanisms. External processes come into being. According to the Supreme Court, this would mandate an overall reading of the constitutional framework which seeks to eradicate defection from the system.
The problem with the Supreme Court’s reasoning is that the extrinsic process does not appear to derive from the text of either provision, or any other text for that matter, nor does it have any real meaning, framer intent, or other reason that would seem to justify such a holding. is Indeed, the Supreme Court has rightly recognized that neither provision independently proposes any external mechanism of liability for defection, one way or the other. In effect, to establish a notwithstanding, the Supreme Court has held in essence that the sum of the two articles is greater than its parts, that is, they together create a right or obligation which cannot be said to exist independently. Obviously, such an external mechanism is implemented as a bridge between Article 17 and Article 63A. Put another way, the Supreme Court appears to have identified a gap in the constitutional framework which it then sought to fill by creating this external mechanism.
Patrick J. Monahan, in his article entitled “The Public Policy Role of the Supreme Court of Canada in Reference to Succession”, stated that where courts wish to fill a gap in the constitution, they can do so in one of two ways. . They may think of their role as a constitutional draftsman and, in view of this, fill in the gaps depending on his own ideas as to the best or most appropriate set of constitutional rules that should be added to the existing text. Alternatively, he says, courts can try to fill that gap by adopting an interpretation most consistent with the underlying logic of the existing text, and then rely on that logic to complete the constitutional text. This latter form of gap-filling can be called ‘explanatory theory’.
In the secession case, on the surface, the Supreme Court appears to rely on such “interpretive theory” to make its case, whereas in fact, upon further prodding, it becomes increasingly clear that it is actually relegated to the role of a constitutional draftsman. The Constitution may very well regard defection as evil and undesirable, but does that necessarily mean that the Constitution intended for the existence of a system that was never mentioned in the text, for which no clear intention can be seen in the drafting of defection? Law, which has not been proven in the history of defection practice and which has otherwise gained no traction in political or legal circles? It should not be forgotten that defection provisions were tackled and curated by legislators on at least three separate occasions and never once did such punitive measures enter into law.
The Constitution seeks to strike a balance between upholding parliamentary democracy and eradicating undesirable practices. Even the Supreme Court has admitted it. Thus, it is perfectly understandable that the Constitution would seek to root out deviations from the system without actually rooting the system. It would seek to limit and discourage defection while maintaining the sanctity of the vote and the autonomy of legislators to vote as they wish subject to the internal process of accountability mentioned in Article 63A. By going a step further and outlining a process to override the vote, the Supreme Court gave up the quarter of judicial interpretation and assumed a role similar to that of a constitutional draftsman. The Supreme Court has not told us what the Constitution demands, but rather what they should be.
When a judicial setup begins to interpret the text in such a way that it appears to be less about interpretation and more about legislation, the constitutional setup itself becomes unbalanced. After all, what good is an amendment to the Constitution if five unelected men can change and amend it with the stroke of their pen? What remains of the sanctity of a constitution, which is the social contract between the state and its people, if the power to change it rests not only with the people, but with a few good men who say they know better? What is the use of painstaking consultation, discussion and consensus building in society, when all you need is a judicial verdict?
These questions, among many others, will continue to arise whenever judicial decisions are seen to make law as opposed to interpretation. The debate around the limits of the Judiciary’s jurisdiction in terms of public representation will continue for decades to come, if not longer. However, in determining the boundaries of its own interpretive powers, the Supreme Court can answer not only the questions before it, but also those that arise from them.
Above all, it must not be forgotten that the Constitution is a living tree, planted by the people, nurtured by the people, protected by the people and without doubt owned by the people. , and the Judiciary, for all its worth, and always its only protector. Therefore, any expansion or growth of the ‘living tree’ should be at the hands of its people, not its custodians?
The author is a lawyer and can be contacted here : [email protected]