The importance of reviews

Reportedly, the Supreme Court Bar Association (SCBA) has filed a petition seeking a review of the SC opinion rendered on a reference by the President on the interpretation of Article 63-A of the constitution. The President filed the reference under Article 186 of the constitution in which the apex court has an advisory jurisdiction. The Article reads” (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question 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 evident under this Article the court gives only its opinion and not the decision on the relevant clause of the constitution pertaining to the questions asked. However, the Article is silent in regards to whether the opinion given by the SC is binding and enforceable like the verdicts given by it under its original and appellate jurisdiction or not.
This question will surely come up during the hearing of the petition. Seeking a review on the opinion of the SC was imperative in view of the fact that out of five judges, two had expressed their dissent. They maintained “Article 63-A is a complete code in itself which provides a comprehensive procedure regarding defection of a member of the parliament and consequences thereof. Any further interpretation of it, in our view, would amount to re-writing the constitution and will also affect other provisions of the constitution, which have not even been asked by the President. Therefore it is not our mandate and we see no force in the questions asked through this Presidential Reference.”
I would tend to go with the opinion expressed by two dissenting judges which apart from being strictly in conformity with the spirit of the Article also appeals to common sense. The opinion of the majority bench has practically rendered Article 95 of the constitution redundant, which allows the members of the parliament to move a no-confidence against the sitting Prime Minister. The motion is presented usually by the opposition with the help of members from the treasury benches and independents and if it is done by members of the ruling party to get rid of an errant Prime Minister, they usually enlist the support of the opposition. With the current opinion of the apex court, that possibility has been foreclosed for all times to come. It also circumvents the procedure laid down in the Article for determining the defection of a member of the parliament.
In the domain of jurisprudence, it is also an internationally settled principle that judges are not legislators but adjudicators, interpreting the text of the constitution and law laid out by the legislators and stating what the text means. They cannot even change a coma in the text of the constitution. It is also agreed that the judges, while delivering their verdicts, must exercise the utmost restraint.
The history of Pakistan is replete with judicial decisions that were given in breach of the settled constitutional principles, by inventing judicial dogmas like the doctrine of necessity and validating conspiratorial removal of chief executives which have had a profound and debilitating impact on the development and consolidation of democracy in Pakistan.
The first such case was when the Constituent Assembly was dissolved by Governor General Ghulam Mohammad in 1954. Maulvi Tamizuddin challenged the dismissal in the High Court which overturned the order of the Governor-General. However, the Federal Court (Supreme Court) under Justice Muhammad Muneer, upheld the dissolution by inventing the doctrine of necessity. Justice A. R. Cornelius was the sole dissenting judge. The Supreme Court also validated the Martial Law by Ayub Khan relying on the doctrine of necessity. The military dictators down the line also benefitted from the doctrine of necessity.
It is hoped that the larger bench of the SC would endorse the views of the two dissenting judges and uphold the principle that the judges are not legislators and should not change or suggest any addition or deletion to a provision of the constitution.

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