Undoing a constitutional fraud

The April 7 order of the Supreme Court, quashing the deputy speaker’s ruling of April 3 and, as a consequence, the prime minister’s advice and the president’s action of dissolving the National Assembly, has been greeted with near-unanimous relief in the legal profession. The prime minister has demurred.

The Supreme Court has, in effect, urged us to take the constitution seriously. No efflux of self-righteous passion can be allowed to subdue constitutional processes. We are a people bound by the constitution. Take the constitution away and we are currents of thought and action flowing in disparate directions dictated by diverse interpretations of religion or of parochial ethnic goals. That this is a reminder our educated classes need calls for much reflection.

The deputy speaker had ‘rejected’ the no-confidence motion against the prime minister that was to be voted upon on April 3. The deputy speaker had justified his refusal to allow a vote on April 3 on the no-confidence motion by accepting the government’s position that a possible nexus between the motion and an alleged regime-change conspiracy at the behest of the United States government existed. Loyalty to the constitution, demanded by Article 5 of the constitution, of those supporting the no-confidence motion had become suspect, the law minister had contended. The deputy speaker readily concurred and rejected the pending no-confidence motion.

The constitution bars a prime minister against whom a no-confidence motion is pending from advising the president to dissolve the National Assembly. The deputy speaker’s ruling freed the prime minister of this constraint. Within minutes of the ruling, the prime minister advised the president to dissolve the National Assembly. The president complied with rehearsed haste. A stratagem conceived in some dark room with the speaker and deputy speaker conniving, in violation of their duty to stay clear of party politics, had been put in effect.

The quashment of the deputy speaker’s ruling by the Supreme Court necessarily led to the quashment of the prime minister’s advice to dissolve the National Assembly and the president’s compliance with that advice. Matters had to be taken back to where they were on April 3. The constitution requires that once a no-confidence motion has been moved voting be carried out after three days but no later than seven days. April 3 was the seventh day. Voting had to be carried out on that day. The allowance in the Supreme Court order of April 7 that the agenda of April 3 be carried out no later than April 9 was already a concession. Any order by the Supreme Court holding the deputy speaker’s ruling to be illegal but permitting its effect to stand in the form of a dissolved National Assembly and consequential elections would have been plain wrong. Such an order would have fallen in the category of judicial pronouncements tainted with compromise in the face of a perceived necessity mandated by ‘events’ outside the law and the constitution.

Outside the legal profession, the Supreme Court order of April 7 has provoked responses stipulated by political affiliation. In his live speech to the nation on Friday evening, the prime minister expressed disappointment with the Supreme Court order and asked his supporters to occupy the streets to protest the likely outcome of the order: the demise of his government. Prime Minister Khan demanded to know why the Supreme Court had not taken into account and investigated the cipher transmitted by the Pakistani ambassador to the US before restoring the no-confidence resolution against him and reviving the dissolved National Assembly.

The answer is clear: the issue before the Supreme Court was the legality of the action of the deputy speaker of April 3. Nothing else. Did the deputy speaker exercise a power available to him? Even if such power is assumed, it was for the deputy speaker to place before the court the material that he had relied upon. No credible material was in fact placed before the court. A diplomatic exchange, even if inappropriate, does not establish the conspiracy that had been made the basis for impugning the motives of possibly the majority of the National Assembly and preventing its functioning. The court could not have been asked, after the deputy speaker’s ruling, to look for material that might justify that ruling.

A closer look at the order and the proceedings before the court is essential for placing in context the ill-advised public disquiet caused by the prime minister about its findings. The defence put up before the Supreme Court by the government and the deputy speaker was based, primarily, on Article 69 of the constitution that bars calling into question before any court any action inside the National Assembly or the Senate on grounds of procedural irregularity. Officers or members of parliament vested with power to regulate the procedure or conduct of business of parliament have been declared to be beyond the jurisdiction of any court.

The argument made by government lawyers, but not quite by the attorney general, to resist judicial review by the Supreme Court was that parliament and parliamentarians conduct their affairs inside parliament behind a constitutional firewall. No judicial review of these affairs may be carried out. It was submitted that the protection enjoyed by parliament was the converse of the protection provided to the superior judiciary by the constitution: the conduct of the superior judiciary may not be discussed on the floor of the House. The Supreme Court and parliament being two coordinate organs created by the constitution must not interfere with each other’s functioning. The Supreme Court rejected this position on sound basis, given what the deputy speaker had in fact done. The Supreme Court has the duty to intervene where parliamentary process has been sabotaged. The Supreme Court must then act to clear the debris clogging the arteries of the constitutional structure. Parliamentary dignity, and its supremacy under the constitution, require binding guidance that only the Supreme Court can provide.

Consider.

The constitution provides for representative democracy. The voice of the people is heard, not directly except when a referendum is held, but through the elected representatives of the people. The essential function of parliament is to allow the representatives of the people unfettered opportunity to debate, declare, resolve and enact laws. The National Assembly, and not the people directly, elect the prime minister of the country. The National Assembly may also remove a prime minister through a vote of no-confidence. This is an essential function that the National Assembly performs.

The functioning of parliament is envisaged as a largely, but not entirely, self-regulating and self-correcting process. While members can lose their seats on account of intervention by the courts and the Election Commission there is no power vested by the constitution in any forum, and in particular the speaker, to silence or prevent from voting any member or a group of members while they remain members of the House. What the speaker cannot do is to prevent parliament from functioning. The channels through which the voice of the members is to be expressed must not be blocked.

A charge of disloyalty against the majority of the members of a House and the prevention of these members from expressing their position on a matter before the House amounts to a shuttering of parliament – not of its building, as with the Punjab Assembly, but of its essential purpose. Neither the speaker nor any collection of members could have turned into judge and jury on the basis of the allegation that the majority had turned disloyal to prevent a vote on the floor of the House. This cannot, indeed, be said even of a minority group of members in the House.

The penal code provides for the offence of sedition. Article 6 provides the definition and procedure for the punishment of high treason. Neither the offence of sedition nor of high treason involve any role for the speaker. Both require determinations by the judicial process. Arming the speaker with this power, without judicial review, would make the functioning of the National Assembly in general subject to the will of one individual.

The immediate dissolution of the National Assembly on April 3 after the deputy speaker’s ruling took away from the National Assembly the ability to correct on its own what the deputy speaker had wrought. An absolute brick wall was presented to the members who had sought to exercise their constitutional right to vote on the no-confidence motion. Or so the government strategists thought. Article 69 that bars judicial intervention presumes the functioning of parliament in good faith. What happened on April 3 was a blocking of the process of the constitution by constitutional functionaries acting beyond their authority in furtherance of a political objective. The disabling of the self-correcting mechanisms of the constitution was the precise moment for the Supreme Court to intervene. A fraud on the constitution was undone.

The writer is an advocate of the Supreme Court of Pakistan. He tweets @salmanAraja and can be reached at: salmanr2002@hotmail.com