The Conundrum of Judicial Opinion

Since the floor crossing has not happened yet, the issue of status or disqualification of membership is not in issue and can or may be dealt with after the fact if and when petitioned by aggrieved member.


By Barrister Pervaiz Buttar,
Senior Advocate in the New South Wales Supreme Court.
Supreme Court of Pakistan

Judicial opinion can be sought by President under Art 186 of Pakistan Constitution but there is no such provision in Australian Constitution.

However, such opinion was provided by Sir Garfield Barwick to Sir John Kerr, former was Chief Justice of High Court of Australia and the latter was Governor General of Australia, on November 9, 1975 before John Kerr dismissed the government of Prime Minister Gough Whitlam though Mr. Justice Barwick had been a Liberal Minister in Menzies government and Mr. Whitlam was a Labour Prime Minster elected after more than two decades of Liberal Party rule.

Sir Garfield Barwick in the first paragraph of his advice has carefully mentioned that, “an existing situation which, of its nature, was unlikely to come before the court”. The caveat is important because the Chief Justice has considered the unlikelihood of the matter to be raised by any stakeholder before the court, a uniquely different situation in comparison before the Supreme Court of Pakistan.

Since 1975 no such opinion has ever been sought nor was it a convention. If Sir Garfield had somehow tried to create a convention by his confidential memorandum to the Governor General of Australia, the constitutional writers agree that any such convention without any express provision in the constitution cannot exist in a state governed by a written constitution.

Currently such reference issued by President for seeking an opinion on Art 63A (not a judgement sought by aggrieved party under e.g., Art 184 original jurisdiction of apex court) was issued on Monday while a petition by Supreme Court Bar Association was already dealing with among others the same issue.

It is not the first reference decided by the apex court and such opinion was refused last year on the ground that the constitutional provision subject of reference was clear, albeit detailed reasons are yet to be provided by the Supreme Court of Pakistan.

While constitutional process of vote of no confidence initiated by over 100 members of National Assembly is on foot, consequently the context of Art 63A questions subject of current ‘opinion reference’ is clear viz whether floor crossing members’ votes will be counted or rejected.

Court is keen as it should, that constitutional process is followed through and role of Speaker and Election Commission should remain unhindered in vote counting, the Presidential reference is mounting further pressure on the court by government in office due to weakened coalition.

Unless there was a written agreement between parties in coalition, while PTI issued ‘show cause’ notice to 14 MNAs in anticipation of putative floor crossing, the issues before the court are complex.

Gough Whitlam addresses reporters outside the Parliament building in Canberra after his dismissal as prime minister by Australia’s governor general, John Kerr, 11 November 1975. (Photo courtesy: Getty Images)

But the larger issue is whether the court should refrain from interfering with Parliamentary process and let it pan out on the floor of National Assembly without any agency hindering it and compelling stakeholders to follow the Constitution as written, rather than adding anything to its wording while looking for intention of Parliament.

There is another issue in detail (where lies the devil) that is the status of MNAs who were elected independently and later on joined the ruling party and furthermore the fundamental right of each MNA to represent their own area and voters’ aspersions who elected them.

There is evidence that many PTI members have expressed their concerns about serious issues for instance, security and steeply rising prices of food and household goods.

Independent MNAs should be allowed to vote on the floor of National Assembly as they were not elected on PTI party ticket when Election Commission declared them elected, irrespective and for a greater reason of the right of MNA to vote as per their conscience.

Since the floor crossing has not happened yet, the status or disqualification of membership is not in issue and can or may be dealt with after the fact by appropriate court or tribunal including the Election Commission if and when petitioned by aggrieved member.

Desperate measures are suggested to current government, what may be efforts to save the Parliament from being hung, including refusing entry to National Assembly on voting day to PTI members. But how can it not be viewed as hindering the constitutional process and what of 20 odd members who are not members of PTI and were never elected on its ticket.

While the apex court has all the issues before it, including Presidential reference, it seems future of democracy in Pakistan is in safe hands.

Let us celebrate 23 March Pakistan day in peace.

Isa questions composition of SC larger bench

Meanwhile, Supreme Court Judge Justice Qazi Faez Isa has raised serious questions over the composition of larger bench to hear presidential reference seeking interpretation and scope of Article 63 (A) of the Constitution.

In a three-page letter written to Chief Justice of Pakistan (CJP) Umar Ata Bandial, the senior puisne judge of the Supreme Court has raised eyebrows over several aspects of the structure of the bench, including the absence of senior-most judges from it and the procedural method not taken into consideration while constituting it.

He pointed out that no senior-most judge was consulted while constituting the bench to hear the cases in which the eyes of the entire nation are set, adding this was troubling because it could potentially give rise to unnecessary and avoidable misgivings.

“After all the adage – justice is not only be done but is also seen to be done – has been oft-repeated by the Supreme Court,” the justice recalled in the letter.

“The said adage is also incorporated in Article IV of the Code of Conduct, which is to be observed by Judges of the Supreme Court and of the High Courts. Likewise, a Judge must avoid all possibility of his opinion or action, in any case, being swayed by any consideration of personal advantage, either direct or indirect.

A copy of the letter has also been sent to Attorney General for Pakistan (AGP) Khalid Jawed Khan and Supreme Court Bar Association (SCBA) President Muhammad Ahsan Bhoon along with all advocate generals and SC judges.

The letter comes after Umar Ata Bandial constituted a five-member larger bench to hear the presidential reference seeking the apex court’s opinion on Article 63 (A) and a petition of the Supreme Court Bar Association (SCBA).

The larger bench, headed by the CJP and comprising Justice Ijaz Ul Ahsan, Justice Mazhar Alam Khan Miankhel, Justice Muneeb Akhtar and Justice Jamal Khan Mandokhel, will hear the presidential reference, seeking interpretation of Article 63 (A) of the Constitution, and the SCBA petition for restraining political parties from holding public meetings in Islamabad before voting on the no-confidence motion.

In his letter, Justice Isa – who is among the top court’s senior-most judges – took exception to the inclusion of the judges who are 4th, 8th and 13th on the seniority list to the bench “by discarding a good practice of a predecessor of yours, who had structured the chief justice’s discretion by constituting benches comprising of the senior-most judges when cases involving important constitutional questions were to be heard.”

Justice Isa said that Article 191 of the Constitution stipulates that, ‘Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.’ “The Supreme Court Rules, 1980 (‘the Rules} have been enacted. Order XI of the Rules attends to the Constitution of Benches, which power, like every other power and discretion, the manner of exercise of which is not specified, must, as stipulated by law, be ‘exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment and in exercising discretion ‘give reasons.”

Registrar’s appointment

Justice Isa also objected to the appointment of civil servant as SC Registrar.

“I have also repeatedly objected to, and in writing, that a bureaucrat, imported from the prime minister’s Secretariat, continues as the Registrar of the Supreme Court. It is widely perceived, that he determines which cases are fixed, when and before whom, and which are to be forgotten. A Registrar cannot be a person borrowed/deputed from the Executive.”

“In my opinion, the Registrar’s appointment is in clear violation of the Constitution, which mandates the complete independence of the judiciary and its separation from the executive.”

“I thought twice before writing this letter. However, the Constitution specifically recognises the most senior Judge of the Supreme Court (including in Article 175A(3) and Article 180), and with seniority comes responsibility, which must not be shirked.

The most senior Judge also ensures the continuity of the Supreme Court as an institution. As far as I know, every predecessor of yours consulted the most senior Judge.” This established practice has been discarded, which may have adverse attendant consequences for the institution. Silence would maintain me in good stead while speaking out may be visited upon with consequences, but having sworn to preserve, protect and defend the Constitution.”

The views expressed in this article are the author’s own and do not necessarily reflect Coverpage’s editorial stance.


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