The detailed judgement of the Supreme Court, issued on Tuesday, in the case of the Speaker’s ruling, and which led to its overturning, and to the Prime Minister ceasing to hold office once again makes the pointed argument that the Constitution is to be held supreme, and that all organs will have to obey it. Implicit in this is that one body would be ultimately responsible for interpreting that Constitution, something which that Constitution itself must state. The Supreme Court sees the Constitution as giving it that right, or rather duty, with the corollary that that is the rule of law which it must uphold. The judgement originally came as a short order removing Mr Gilani from the membership of the National Assembly, and thus from the office of Prime Minister. It addresses the question of sovereignty and supremacy, and why the Supreme Court felt it could intervene in a matter of eligibility for membership of the House.
The principle of not allowing court decisions in the running of legislatures is also a constitutional principle, but the judgement also discusses how the Court’s jurisdiction is invoked, both as a matter of fundamental rights, and under the Court’s quo warranto writ jurisdiction. The decision of the Speaker not to refer the matter to the Chief Election Commissioner attracted judicial review, because the Constitution itself prescribed the qualifications for a member. The judgement noted that the specially provided procedure to check the qualifications of a member, of a reference to the Speaker, did not preclude the process of going to court. In his note concurring with the main judgement authored by Chief Justice Iftikhar Muhammad Chaudhry, Mr Justice Jawad S. Khwaja said that in the Pakistani context, the British concept of parliamentary sovereignty was not relevant. It should not be forgotten that even now the UK does not have a written Constitution, and where there are written constitutions, parliaments are only sovereign to the extent that they can amend the Constitution.
The release of the detailed judgement seeks to make clear why the Supreme Court acted to dismiss the Prime Minister. Judges can speak only through their judgements, and the judgement is thus a salutary reply to the perceived criticism of the earlier short decision. Now that it has been issued, the Supreme Court has made clear it’s position. In future, however, it is hoped that such matters will be referred by the Speaker to the desk of the Election Commission - as is the rule - for the democratic process to continue as smoothly as possible and for the Court to be able to devote itself to the myriad issues which require its attention.