“How dreadful it is when the right judge, judges wrong.”
— Sophocles
A judicial boycott by the major political parties forming the government of a Supreme Court bench, headed by the chief justice of Pakistan, hearing a case of national importance, is an extraordinary judicial event by any historical standard. The last time such a thing happened on a much smaller scale was when, in 2002, the Supreme Court Bar Association withdrew a review petition from the Supreme Court of Pakistan, on the explicit ground that the judiciary had ceased to be independent. The issue is not whether the ruling of the deputy Speaker of the Punjab Assembly was legally correct or not but something much more fundamental: major political parties have lost faith in the judicial process which produces these decisions. Is this judicial crisis merely a result of sore losers or something else?
Unusual short order: The Supreme Court through a short order dated July 26, 2022, declared the ruling of the deputy Speaker of the Punjab Assembly as erroneous and Chaudhry Parvez Elahi as the duly elected chief minister of Punjab. But this is an unusual short order, because unlike usual short orders, which hardly contain reasons, this one also contains partial reasons. The primary reason given is that the understanding and implementation of the Supreme Court short order dated May 17, 2022, on the presidential reference concerning Article 63-A of the Constitution, as well as of this particular Article itself, by the deputy Speaker was incorrect and erroneous.
In other words, this case was viewed as a simple and uncomplicated issue of “misunderstanding and implementation”, instead of a case involving complicated constitutional questions. But the main thrust of the short order is to justify why the finding that the “decision of the party as to how to vote has been conferred upon the party head”, given by Justice Azmat Saeed, on behalf of the majority member judgement of the Supreme Court in the ‘District Bar Association case’ (PLD 2015 SC 401), was not binding on this smaller bench of three members.
This issue was at the heart of the controversy: if the parliamentary party could legally issue directions regarding a vote of confidence motion, Parvez Elahi won, but if the party head, Chaudhry Shujaat, could only issue such directions, Hamza Shehbaz won. In the presence of this explicit finding by a larger Supreme Court bench in favour of the party head, the short order declares that this larger Supreme Court judgement is not binding on it for the following reasons. Firstly, this finding was supported allegedly only by eight judges out of a full court of 17 judges and for a judgement to be binding precedent, it should have the support of nine judges out of 17 judges.
Secondly, these findings conferring the power to issue directions on the party head are in conflict with the express provisions of Article 63-A, which states that the parliamentary party will issue such directions. In short, these findings by Justice Azmat Saeed are unconstitutional.
Thirdly, these are not really findings but are merely ‘passing remarks’ because this case only involved the question as to the unconstitutionality of Article 63-A and not as to who will issue such directions under Article 63-A.
Lastly, the current chief justice, Umar Bandial, who had also signed and supported the lead majority judgement of Justice Azmat Saeed, in 2015, did not give any finding on Article 63-A. In short, Justice Umar Bandial did not support these findings of Justice Azmat Saeed on Article 63-A.
Erroneous reasoning: The reasoning in the short order is erroneous, self-contradictory and itself provides grounds that only a larger bench of the Supreme Court should have heard this case. Firstly, the very fact that three and half pages have been written in the short order to justify why the majority judgement of Justice Azmat Saeed is not binding itself proves that this matter apparently involves complicated precedents and only a larger bench of at least nine Supreme Court judges could resolve this issue.
Secondly, if the reasoning of Justice Azmat Saeed that under Article 63-A, the party head is to issue directions regarding voting in a confidence motion is in conflict with the express words of Article 63-A(1)(b) which uses the term ‘parliamentary party’ then by the same logic, the majority short order dated May 17, 2022, of these same three Supreme Court judges on the interpretation of Article 63-A is also in conflict with the Constitution because the condition of not counting the votes has been read into Article 63-A, which is just not present in the constitutional text. In other words, inconsistent approaches to constitutional interpretation have been adopted.
Thirdly, in para 1 of the judgement of Justice Umar Bandial in the case of the ‘District Bar Association case’, Justice Bandial has fully supported all the findings of Justice Azmat Saeed, in the following categorical terms that “with respect, I agree with the appreciation of relevant facts and the grounds and reasons sustaining the findings given on all the points addressed in the aforementioned opinion” (ie ‘all’ means all). Surely, if a judge now wants to take a different legal interpretation, this itself shows the complicated nature of this constitutional case. In short, this case should not have been heard by a smaller three bench but rather by a larger bench of at least nine of the senior-most Supreme Court members as this was not a simple issue of mere “understanding and implementation” but rather a complicated case of constitutional interpretation, involving allegedly erroneous binding precedents and a case which will have far-reaching constitutional and political implications.
It is irrelevant whether the conclusions reached through the short order are correct or not. A losing party will only accept a judicial decision against them if it is perceived to be the result of a fair, just and legally correct process. Sadly, the root cause of this judicial crisis lies in the erroneous judicial choice where the quick conclusion of this case was preferred over the fairness of the judicial process.
This article first appeared in Dawn.