A step too far

The Supreme Court recently released its detailed judgment on Article 63A. Written by Justice Munib Akhtar, the judgment holds that when a parliamentarian votes contrary to party directions on matters like the budget and votes of no-confidence, not only is the parliamentarian subject to expulsion but their vote itself is to be disregarded.

Justice Akhtar begins with the contention that judges are freer when it comes to constitutional interpretation than with respect to statutory interpretation. This is because, while statutes “are designed to meet the fugitive exigencies of the hour,” constitutions must “endure for ages to come.” He then suggests that the line between interpretation (permissible) and “reading in” (impermissible) is so fine as to be irrelevant.

The judgment continues by discussing Article 17(2) (re every citizen’s right to form a political party) and notes that this provision has been interpreted purposively and expansively by the Supreme Court. In the 1988 Benazir Bhutto case, the court scotched General Zia’s plans for non-party elections by saying that the right to form a political party necessarily meant the right to contest elections through them. In 1989, the court held that political parties had the right to be allocated specific symbols so that they could properly fight elections. Finally, the famous 1993 case of Mian Nawaz Sharif held that Article 17(2) included the right of a political party to govern and exercise power.

Justice Akhtar reaches multiple conclusions on the basis of this historical survey: first, that the rights recognized by Article 17(2) are not just the rights of citizens, but the independent rights of a political party in and of itself; second, that these rights must be interpreted to promote the healthy operation of political parties; third, that the defection of legislators negates this “healthy operation”; and fourth, that therefore Article 63A should be interpreted to exclude the votes of defecting parliamentarians. Only in this way, per Justice Akhtar, can one ensure that Article 63A functions in its true spirit – so that it is never needed.

Let’s begin with Justice Akhtar’s theory of constitutional interpretation. Yes, constitutions are normally interpreted expansively. But as noted by the US Supreme Court in Hurtado v California, that is because “the language of the Constitution does not change.” More importantly, Article 63A is not an instance where the language of the constitution has remained unchanged. In fact, quite the opposite.

As originally promulgated, Article 96(5) of the 1973 constitution provided that for a period of 10 years, a vote of no-confidence against a prime minister would require a majority of the total membership of the National Assembly and that the votes of defecting MNAs would be disregarded if contrary to the voting majority of their political party.

In 1977, the constitution was suspended by General Zia. When it was restored in 1985, this entire provision regarding votes of no-confidence was excluded. Thus from 1985 onwards, there was no express constitutional prohibition on defection. That is perhaps why the period 1988-1997 saw a veritable epidemic of ‘horse-trading’, which epidemic was repeatedly and strongly condemned by the Supreme Court in a series of cases.

In 1997, the 14th Amendment added Article 63A to provide for disqualification in the event of breach of party discipline on any issue. This time, however, there was no mention of votes being disregarded. In 1998, the Supreme Court upheld the 14th Amendment via a 6-1 judgment but diluted it (on the grounds of freedom of speech) to say that members of parliament could only be disqualified for breaches of party discipline in relation to parliamentary proceedings, not generally. The lone dissenter argued that Article 63A was entirely unconstitutional. Nobody mentioned the possibility of votes being disregarded.

In 2003, the 17th Amendment introduced text similar to the current Article 63A. The new Article 63A provided that parliamentarians could be disqualified if they voted contrary to party directions, but only in relation to votes of confidence and no-confidence, elections of the prime minister or chief minister, and money bills. In 2010, the 18th Amendment further modified the text of Article 63A to include bills amending the constitution.

Justice Akhtar’s judgment does not address that legislative history. In particular, it never refers to the fact that the requirement to discard dissenting votes was present in the original 1973 constitution, then excluded by General Zia, and then never re-inserted despite multiple amendments to the Constitution regarding that same issue. Instead, the historical references it makes are to the various Supreme Court judgments condemning defection, all of which are from the period 1992-1998 (judgments followed by three separate amendments to the constitution dealing specifically with defection).

For example, the judgment refers repeatedly to Justice Shafi ur Rehman’s judgment in the 1992 Khwaja Tariq Rahim case. That judgment condemns parliamentary defectors in part on the basis that such defections render the voter helpless because “In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person [while in] the meantime, the defector flourishes and continues to enjoy all the worldly gains.”

This specific problem was fixed in 2003 through the addition of Article 63A and is no longer an issue. Now, a defector can be unseated relatively quickly following his dissenting vote and no longer “flourishes and continues to enjoy all the worldly gains” pending the next election. Similarly, the judgment does not discuss the fact that the constitution was amended three times to deal with the problem of defectors (1997, 2003 and 2010) and that in each case, no express requirement to exclude dissenting votes was inserted, even though the original 1973 constitution had contained such a provision.

The importance of historical context is brought out by the very issue most often cited by Justice Akhtar, the right to privacy. Currently, the right to privacy means something very different in a world of social media and electronic eavesdropping than the traditional physical sanctity accorded to a person’s body or home. It is therefore a topic on which courts have no option to engage in the delicate exercise of elaborating constitutional protections for a new world.

This case is different. Here, the court was not faced with a new topic on which it had to divine the intention of the framers of the constitution. Instead, it was faced with an established and identified problem repeatedly addressed in recent years by parliamentarians, which history the judgment notes was repeatedly brought to its attention.

There are other issues in the judgment. For example, it brushes aside the possibility of a conscientious objector on the basis that no actual example of such a defector was ever cited before the judges. At the same time, the judgment also rejects the possibility of an elective dictatorship by referring to the equally theoretical possibility of: (1) a split between the party head and the head of the parliamentary party; and (2) the removal of an unpopular prime minister through a vote of confidence requested by the president. In other words, the judgment rejects one argument (conscientious objectors) as hypothetical but defends its understanding on the basis of an equally theoretical scenario.

Second, I respectfully disagree with the conclusion that to vote contrary to party directions is the negation of democracy. Pakistan is a representative democracy. Each MNA represents a constituency of hundreds of thousands of voters. It is that MNA’s fiduciary obligation to represent the interests of his voters, which obligation ultimately trumps all other obligations. The mere fact that MNAs have been elected on a party basis does not mean that the MNAs’ obligation to their party trumps their obligation to their voters. In my view, that is why the only punishment expressly provided by Article 63A is de-seating. If and when an MNA is de-seated by his/her party, he/she has the right to seek vindication from the voting public. It is that voting public which will then either justify the dissenting vote or punish the defector. If the dissenting vote is automatically discarded, the voting public never gets to have a say on the issue.

One last point: the judgment states that the “the ideal position is that [Article 63A] need not be actually invoked at all” and on this basis finds within Article 63A, an additional “deterrent effect” regarding the discarding of votes. I concede that a world without any defections may well be a better world than a parliament riven with defections. But, in my respectful opinion, that ‘ideal’ is not the ideal expressed by the constitution itself.

The line between constitutional interpretation and constitutional rewriting may indeed be difficult to identify, but it is not necessary to draw that line with precision. To paraphrase Coleridge, CJ in Southport Corp v Morriss, all one needs is to determine which side of any reasonable line a judgment falls. In this case, my submission is that it falls on the wrong side.

This column appeared in The News on 22 October 2022

Corruption, wealth and vengeance

There is no acceptable form of indigenously acquired wealth in Pakistan. If you were born wealthy, then obviously your ancestors were bootlickers of the British. And if you have become wealthy in your own lifetime then, equally obviously, you are a thief.

For the record, my definition of ‘wealthy’ does not include those upper middle-class individuals lucky enough to own their own house and a few cars. My reference here is to those people who own private jets (or are at least capable of owning private jets). Those people, at least in Pakistan, are deemed to be beyond redemption.

The apotheosis of this attitude can be seen in the Supreme Court’s famous judgment in the Panama Case where Justice Khosa cited Balzac (via Mario Puzo’s “The Godfather”) to argue that: “Behind every great fortune lies a great crime.” Except that Balzac himself never said that. What he said was “behind every unexplained fortune lies a successful crime.” It is that omission of the word “unexplained” – and in a Supreme Court judgement, no less – which reveals so much about our society’s attitude towards wealth.

Where does this aversion to wealth come from?

My entirely unscientific theory is that the basis lies in the nature of wealth in Pakistan. To be more specific, the vast majority of wealth here consists of land. And land is, by definition, the ultimate zero-sum resource. To quote one wag, “they’re not making more of it” (though that may be news to the housing authorities happily reclaiming land from the sea in Karachi).

The problem with a zero-sum resource is that the more somebody else has, the less you have. Hence if somebody else has acquired more land in their lifetime, the natural corollary is that some other people have been deprived of their share.

But isn’t that the case with all wealth? The answer is no. Stocks and shares, for example, are not a zero-sum form of wealth. If somebody successfully floats a company on the stock exchange, they do not automatically make anybody else poorer. But everybody else falls (at least for Pakistanis) in the category of robber barons.

I was reminded of this peculiarity of Pakistani culture by a recent conversation with a dear friend in which the name of a well-known businessman happened to come up. My friend’s immediate response was “scumbag”. When I asked for the basis of his contempt, there was ultimately no justification beyond whataboutery. As in, what about his son being rude to so and so? What about the fact that he attended a famous school? What about the fact that he was not born rich? Could I certify that he had made his money through entirely legitimate means?

Obviously, I could not certify the origins of the relevant businessman’s wealth though I certainly knew enough about him to discredit the standard misconceptions. None of that mattered. So far as my friend was concerned, the burden of proof was on the businessman – and, by extension, on me – to prove that the wealth in question was not ill-gotten.

Does any of this matter? Yes, it does. And for two reasons.

The first reason has to do with the economic growth of this country. If this country is to become wealthier, that in turn requires its citizens to become wealthier. But if to become wealthier is also to invite the scorn of society and to be automatically classified as a “scumbag”, then why bother? Why not take one’s ideas overseas where becoming rich does not automatically mean becoming the subject of veiled – and sometimes not so veiled – taunts? I’m not suggesting that we need to replace the national anthem with Gordon Gecko’s famous “greed is good” speech but perhaps the assumption of innocence can be extended to the wealthy as well.

The second reason pertains to our national obsession with corruption and the proceeds of corruption. As argued earlier, the people of this country have been continuously seduced with the argument that if only the proceeds of corruption can be recovered, then all will be well. The most recent iteration of this argument is in the PTI’s single-minded focus on the “chor, chor, chor” front which has certainly found much traction in the public mind. But the antecedents of this philosophy go back to the PRODA law introduced by Liaquat Ali Khan in 1949, and from there to Ayub Khan’s EBDO law, the accountability laws introduced by Zulfiqar Ali Bhutto and General Ziaul Haq, the Ehtesab Act of Mian Nawaz Sharif and, most recently, the NAB Ordinance introduced by General Musharraf.

So, if anti-corruption laws don’t work, should one simply accept corruption as a fact of life instead?

No. But allow me to elaborate.

First, some degree of corruption is inevitable. Every single country in the world has corruption issues. And please spare me the garbage about how the execution of such and such person proves that China’s growth is a consequence of a zero-tolerance policy towards corruption. There is no shortage of corruption within China just like there is no shortage of corruption in the United States, the United Kingdom or even Switzerland.

Second, given the inevitability of ‘some’ degree of corruption, the issue is not whether corruption is to be socially accepted but the extent to which the state tries to prevent corruption by: (a) reducing regulation; (b) paying high salaries to government officials; and (c) establishing a robust mechanism to punish corruption if and when it occurs.

In my humble view, Pakistan has the worst of all possible worlds. We have a heavily regulated state which gives huge amounts of discretionary power to high officials who are hugely underpaid, not just in absolute terms but in comparative terms, and which tries to prevent corruption by giving hugely discretionary and dictatorial powers to a prosecutorial agency manned by untrained and underpaid officers. So, not only does corruption flourish but the heavy-handed attempts to smash corruption through state-sanctioned thuggery are in fact counterproductive not only because they terrify law-abiding officers away from making any decision but also because the prosecutorial agency lacks any ability to go beyond grabbing people and throwing them in jail.

Let me try and restate my argument in simple terms. Corruption exists because our governance systems are broken. You cannot fix a broken governance system without changing the factors which make the system broken. Hence the solution to corruption is not a bigger hammer with which to smash the corrupt. That approach is tried, tested and failed. All that does is produce self-styled saviours convinced that every problem is a nail which needs an even bigger hammer to smash it. Been there, done that.

One final argument: if there is one thing the commentariat agrees on, it is that things used to be better in the good old days. But we did not have the NAB Ordinance in the good old days. So clearly, the problem (and its solution) lies elsewhere.

This column appeared in The News on 11 October 2022

Reverse-engineering the Supreme Court

Chief Justice Umar Ata Bandial is a good man faced with an impossible situation. No matter what he does, he is likely to be lambasted by one side or another. And outside the world of political cases, cases continue to pile up at the court’s doorstep in frightening numbers. Thus while the SC disposes of about 5,000 cases per year, there is a backlog of about 50,000 cases which is continuing to grow.

So, what to do?

One response is to demand more judges so that they can decide more cases. I am suggesting the opposite: that we set aside high rhetoric and work backwards from that which is possible. My proposal is to ‘reverse-engineer’ the system so that it matches the capabilities of the judges, rather than conceiving of an ideal judicial system in isolation and ignoring the real-life limitations of the judges.

In short, I want the Supreme Court to accept, and decide, less cases.

At a basic level, it needs to be remembered that no matter what the burdens placed on them, the judges of the Supreme Court are still only human. There is a limit to the amount of work they can do.

More importantly, not every case deserves to be heard by the Supreme Court. In particular, cases involving simple factual disputes, like bail matters or rent disputes, do not need to go before the Supreme Court.

Let me try and articulate this point in factual terms. Out of the roughly 5,000 cases decided every year by the Supreme Court, only about 300 cases get reported in the two main law journals (PLD and SCMR). There is no set criteria for a judgment to be reported but normally, a case is supposed to have some degree of either legal or political significance in order for it to be reported. That means only six per cent of Supreme Court decisions are considered to be worth reporting. Which in turn also means that 94 per cent of Supreme Court decisions have no substantial legal or political significance, at least in the considered opinion the gentlemen who review Supreme Court decisions for a living.

One would then expect the few reported judgments to be masterpieces of jurisprudence. Perhaps. I recently flipped through the last two months of reported Supreme Court judgments and so far as I could see, at least half the reported judgments could have been safely removed without any great loss occurring to the world of law.

My point here is not that the learned judges of the Supreme Court are writing bad judgments. My point instead is that the Supreme Court is being overwhelmed with routine cases the vast majority of which do not involve any substantial questions of law. And that is not the job of any Supreme Court. The US Supreme Court, for example, only decides about 100 cases a year, all of which are reported, and almost all of which definitively settle a disputed question of law. The UK Supreme Court also decides about the same number of cases every year.

Yes, one consequence of my proposal is that more high court judgments will be allowed to become final. But if the Supreme Court believes that high court judgments are routinely erroneous, then the solution is to appoint better high court judges, not to review every high court judgment.

The good news (and also the bad news) is that this is largely a self-created problem. It’s good news because it means the problem is not inherent in the system (and is therefore fixable). It’s bad news because it means the problem lies in social expectations of the judiciary (and in the judiciary’s perception of its role).

By way of background, it needs to be understood that the constitution gives three types of jurisdiction to the Supreme Court — advisory, original and appellate.

Advisory jurisdiction is when the president sends a reference to the Supreme Court asking its opinion on a question of law. This happens, on average, once every few years.

Original jurisdiction means that the case is being initiated directly in the Supreme Court, which occurs in two types of cases. First, the Supreme Court has original jurisdiction over disputes between provinces as well as disputes between provinces and the Federation. Such cases are also rare. Second, the Supreme Court has original jurisdiction under Article 184(3) to hear cases involving questions of public importance regarding the enforcement of fundamental rights. This jurisdiction can be exercised both on the application of an aggrieved party as well as by the Supreme Court on its own motion (that is: ‘suo motu’).

Cases under Article 184(3) are significant not because of the total number of cases but because they have, in the past, taken up a disproportionate amount of the court’s time (especially during the tenures of Chief Justice Iftikhar Muhammad Chaudhary and Chief Justice Saqib Nisar). Furthermore, these types of cases tend to mushroom and expand. For example, on one date of hearing in a case pertaining to Karachi, there were 118 applications listed for hearing arising out of 42 connected matters!

Appellate jurisdiction also falls into two heads. The first category is appeals of right, where the constitution itself provides that an appeal shall lie to the Supreme Court (such as where a high court has reversed an order of acquittal and sentenced an accused to death). The second category is where the Supreme Court grants ‘leave to appeal’, for example because it feels that there are questions of law which require examination. I do not have exact figures but my understanding is that the majority of all cases before the Supreme Court would fall within the second category.

To return to my original point, the vast majority of cases before the Supreme Court are cases which simply do not belong there and which should have been allowed to become final at the high court stage. Why then does the court persist in hearing such cases, particularly when the end result is an uncontrollable docket?

In terms of Article 184(3) cases, the reason why the court continues to be receptive to such cases is because (a) in some cases, the exercise of such jurisdiction is actually necessary (see, for example, the SC’s intervention in the National Assembly vote of no confidence); and (b) there is now a nexus between the media and the judiciary in which the media continuously unearths scandals for a continuously outraged judiciary, as a consequence of which both get to bask in the glow of public approbation. A less outraged Supreme Court means a court which spends less time on the front pages of the news. Some CJPs are more immune to this sort of flattery and hence waste less time in what is essentially, a performative type of justice. Others get addicted to the limelight.

In terms of the vast majority of routine cases unnecessarily taken up for hearing, the problem is exactly the opposite from that in the case of Article 184(3) cases. In Article 184(3) cases, the issue is the tendency of certain judges to act as if they have suddenly inherited the imperial tradition of ‘Adl-e-Jehangiri’. In terms of the routine cases, the problem is the inability of Supreme Court judges to understand that their role is different from their role in the high court and that they must now focus on dealing at length with important questions of law rather than continuing to deal with routine factual cases.

The further problem with the latter issue is that not every judge, with great respect, is cut out to handle issues at a Supreme Court level. This is not intended as a matter of disrespect. Not every first-class cricketer is cut out for test cricket, no matter how many years they have spent toiling in the trenches. The same is true for judges.

The point I am making is fairly simple: if judges are picked for their experience in handling routine matters (ie: on the basis of seniority) they will happily accept routine matters for hearing at the Supreme Court level as well. On the other hand, if Supreme Court judges are picked for their ability to produce judgments which definitively resolve complicated questions of law (ie: on merit), then the court too will focus on such issues. Hence appointing the right judges is key.

Let me close by making one final point: if tomorrow the Supreme Court tries to radically reduce the number of cases it hears, it will be opposed tooth and nail by the bar associations. This is because lawyers have become accustomed to a legal system in which high court judgments are routinely appealed. My advice, if accepted, will therefore certainly result in headaches for the court. At the same time, the current system needs to change. And only the Supreme Court is capable of leading that change.

This column appeared in The News on 3 September 2022