Text and its spirit

The Supreme Court’s decision clarifying that disqualification under Article 62(1)(f) would be lifetime is neither extraordinary nor unexpected. A different decision, like one reading into Article 62 time limits referred in Article 63 or one diluting the harshness of Article 62 by stating that the constitution must be read such that any fetters imposed on fundamental rights are least restrictive, would be against the recent jurisprudence produced by our apex court.

Justice Umar Bandial has written the court’s opinion. But the separate note by Justice Azmat Saeed is persuasive in its reasoning. Justice Saeed has simply observed that the obvious interpretation of Article 62(1)(f), which deals with the eligibility of a candidate for parliament, is that no court should have issued a declaration that such candidate isn’t ‘honest and ameen’. Where a declaration has been issued, and Article 62 doesn’t make it time bound, it is not for the court to read any limitation into the text that parliament didn’t include.

Three main points seem to have prevailed with Justice Bandial. One, while the original text of the constitution didn’t include criteria such as good character, sadiq and ameen etc, which provisions were added by Zia, an elected parliament recently revisited the constitution to remove pollutants added by dictators. But while promulgating the 18th Amendment, it retained the parts of Article 62 included by Zia. Two, Article 17’s right to association is subject to limitations imposed in the interest of morality, and Art 62(1)(f) is one such restriction.

And three, Articles 62 and 63 – which deal with qualifications and disqualifications of parliamentarians, respectively – are not to be read interchangeably (in contrast to the previously understood view that Articles 62 and 63 are to be read together). This should logically mean that Article 62 qualifications are to be considered at the pre-election stage and Article 63 disqualifications post-election while a parliamentarian is in office. But we know that in disqualifying parliamentarians while in office, Article 62 has been read into Article 63.

The text of a constitution, like all texts, doesn’t speak for itself. It needs people to speak in its name. Due to limitations built into language, all texts suffer from vagueness and can’t always be an unmistakable reflection of the intent of the text giver. This issue arises whether it is a legal text or religious scripture. The need for interpretation of text thus arises, which also leaves room open for conflicting interpretations. Interpretation of text is an evolutionary process as the values of the interpreter and the ethos of times he/she lives in affect the outcome.

There are two obvious ways to approach our constitution. One is that it is a contract between the citizen and the state, meant to protect the citizen from the abuse of state power; that it guarantees the rights and entitlements of citizens and specifies means to ensure that the state works for citizens’ benefit. The other way is to see our basic law as a code meant to protect the state from the maliciousness of citizens. If so, the citizen is suspect, and the constitution is to be read such and rights of citizens interpreted in a manner that doesn’t injure a vulnerable state.

If the constitution exists for the protection of citizens, it would be interpreted to mean that rights to due process, life, liberty, dignity, equality, privacy, property, association, speech, information, religion etc are inalienable. And to the extent that any limitations are to be imposed, they must be imposed by the least restrictive means necessary to achieve legitimate objects of the state. And in interpreting such limitations the courts would strictly scrutinise the limitations with a view to upholding and expanding rights as opposed to curtailing them.

It is due to such presumption about the purpose of constitutions and laws that in all civilised justice systems benefit of doubt is given to the accused, the accused is deemed innocent until proven guilty, penal laws are construed strictly in favour of the accused, the right of an accused to due process, to a neutral arbiter, to an attorney and protection against self-incrimination are all considered inalienable rights. It is to ensure that the neutrality of the arbiter doesn’t get compromised that the function of judging is separated from the executive arm of the state.

Such an approach to the constitution wouldn’t confer legitimacy on military courts, or allow the accused to be held in secret detention or tried secretly by serving military men who belong to the executive branch. There are contrary views of course. Why should rights of citizens who indulge in terror acts be upheld at the expense of the state and the rest of its citizens? Why shouldn’t we do away with the presumption of innocence if it helps bad men get away scot free? This line of reasoning is rooted in the view that the law’s prime purpose is protection of the state as opposed to the citizen.

If our constitutionalism were pro-citizen rights, the suggestion that a party is so tainted that no lawyer should accept its brief would never be articulated. Everyone, no matter how vicious his crimes, has the right to be defended in accordance with law. If we were pro-due process, we would approach suo motu powers, or the desire to shift from adversarial to inquisitorial mode, with great circumspection. No matter how noble the intent, self-assumption of jurisdiction to right a self-identified wrong places the adjudicator’s neutrality under a cloud.

If the constitution is meant to protect the citizen, it leaves little room to impose prior restraint on his freedom of speech. The state would let him speak. Should his speech breach a law (contempt, defamation etc), he would be charged and tried by a neutral arbiter and punished if found guilty. In such scheme, the only prior restraint conceivable would be in relation to hate speech that could create an imminent risk of violence or the state undertaking time/place/manner regulation of speech to ensure it doesn’t impinge on rights of other citizens.

If our approach to the text of our constitution were pro-rights, would our jurisprudence state that, in giving meaning to parts of the constitution, priority need not be accorded to the part that delineates fundamental rights? It is in this context that rulings justifying military courts and disqualifying parliamentarians have attracted criticism. In such debate, the political future of the person of Nawaz Sharif or Jahangir Tareen is of no consequence. The jurisprudential question is how our justice system approaches such issues.

A key legal question in the disqualification cases was whether the SC could be the court referred to in Article 62, vested with jurisdiction to pass a declaration of disqualification without trial or recording of evidence, merely on the basis of a tentative view. And if so, what would become of Article 10A which guarantees citizens’ right to a fair trial prior to the determination of civil rights or imposition of criminal penalties. Article 10A hardly finds mention in the disqualification cases. The SC said it can issue declarations of disqualification under Article 62 without trial.

The second question was who would bear the burden of proof and what kind of proof would be required to discharge that burden. The SC issued declarations of disqualification not on the main charges levelled against NS or JKT but on omissions of a trivial nature. The sense emerging from a collective reading of disqualification cases (dating back to the times of CJ Chaudhry, who started all this) is that an omission or misstatement in election forms, however slight, is a strict liability offence that attracts 62(1)(f) declaration of dishonesty leading to a lifetime ban.

This SC crossed the Rubicon when it decided disqualification cases without regard to Article 10A guarantees. That fuelled the cynical view that we continue to approach the constitution with a view to protecting the state from the citizen. In now deciding that the 62(1)(f) declaration will result in a lifetime ban, the apex court has only given effect to the ordinary meaning of the text of Article 62.

The writer is a lawyer based in Islamabad.

Email: sattar@post.harvard.edu