Lessons from 2015 Supreme Court verdict

Instead of considering the opinions of all nine judges in the 2015 case, the SC only considered those of six, writes Salaar Khan

Salaar Khan
Representational image of the constitution and law - Canva/file
Representational image of the constitution and law - Canva/file

There’s this quote that does the frequent rounds on Pinterest, and the like: "Don’t judge me by the mistakes I’ve made, but by what I’ve learned from them." If you haven't had the pleasure of encountering it, imagine cursive text curled up against a hot pink background.

The quote’s author is, apparently, unknown. But, as of two days ago, it may as well be the Supreme Court of Pakistan.

Here’s the setup: the court is, once again, in a bit of a pickle. In May, it decided that words that weren’t in the constitution might as well have been. And now, for the second time in four months, a deputy speaker is waving a letter at angry politicians who want a final count before a vote.

But the court has been here before. The prompt, too, seems simple enough. The constitution says that all of those distressed members of the Assembly must vote according to the directions of their "parliamentary party." If they don’t, the ‘party head’ can have them disciplined.

Now, let’s pretend the same bench hadn’t just recently read in language that doesn’t exist in the text of the constitution. The text mentions two separate things: the parliamentary party and the party head. Surely, the two can’t mean the same thing.

But there’s another problem. And again, it’s self-created. Over half a decade ago, eight judges on a full bench of the Supreme Court seemed to hold that they were, in fact, the same thing. And the Rituals of the Robed dictate that when there are fewer heads on a bench than there were in another case, they must nod along in agreement. It was also complicated by the fact that one of the judges on that bench was sitting on this one – as the chief justice.

Now, nodding wouldn’t have been ideal: recycling a bad reading of the law, leading to a worse outcome. But a judge couldn’t exactly say they had signed that judgement unconsciously, could they?

The primary solution, instead, lay in what far too many lawyers consider unnecessary: math.

That contrary interpretation may have been signed by eight judges – five more than the current bench – but it was eight judges out of seventeen. This meant that it only constituted a ‘plurality’, not a ‘majority’ of nine. That also meant that the interpretation didn’t bind them. Bye bye Hamza - and bye bye dictatorial directions from the unelected.

Except, the thing with math is that the right answer isn't always enough; the work (™) matters too. Those eight judges signed off on a single judgment, which said the party head had the authority to direct voting in parliament. Just because other judges didn't sign off on that particular judgement didn't mean this couldn't still be the majority's view. So, the court could turn to the opinions of the remaining judges. But not all of them.

Instead of considering the opinions of all nine remaining judges, divided between seven different judgments, it only considered those of six: a subset consisting of those who had dismissed challenges to the 18th Amendment. The case, however, had tasked the judges with considering challenges to the 21st Amendment as well. Three judges’ opinions didn’t make the cut.

Presumably, the 18th Amendment only made the cut because the 21st Amendment didn’t touch the constitutional provision that this case was about—Article 63A. In each of these six judgements, the court considers only whether they dealt with "whether the party head can give directions as contemplated by Article 63A(1)(b)," deciding that none of them did. This is where it would have really helped to know why the other three judges’ opinions weren’t given a chance. Because of them, Justices Dost M Khan and Jawwad Khawaja arguably did consider this. And were even one of their votes to be included, the view of nine judges would bind the court to follow suit in this case.

On 63A, Khan held that a vote against the "whims and wishes of a party head" could lead to de-seating. Justice Khawaja held that a party head (as opposed to the parliamentary party) "may be able to exert influence on the content of the constitution." To be sure, there are two ways to interpret this: in other parts, he refers to voting according to "party policy". But even the eight-member judgment only conflated the two in one paragraph. And as to the other six judgments that the Supreme Court cycled through, it asked only if they had dealt with the relationship between a party head and a parliamentary party.

Surely, it was at least worth considering his understanding of the relationship between the party head and the parliamentary party? Particularly so as, if votes were to be cast per the directions of a parliamentary party, and the party head could not dictate what the parliamentary party directed, then was their ‘influence’ on the content of the vote all that significant?

Of course, neither opinion makes the cut in the final tally. Instead, we have that odd filter – only those judgments that dismissed the challenges to the 18th Amendment were counted.

But why? Amongst those who dismissed the challenges to the 18th Amendment, some said it was constitutional; others held that they couldn’t even ask that question - two wildly different reasons. Why include Justice Nasir ul Mulk, for instance, who simply dismissed the challenge saying it couldn’t be challenged in court, but exclude Jawwad Khawaja – who was only able to strike 63A down after considering it in great detail? That too, after devoting several paragraphs specifically to the concept of a party head?

Or why the apparent change of heart when, in another judgment that the CJ had earlier signed – a rather different filter had been applied? That other judgment was Justice Munib Akhtar’s minority view in the Qazi Faez Isa review. Justice Akhtar – also a member of the current bench alongside the CJ – holds that where there is no single view of the ‘majority’, and there is only a plurality, ‘commonality’ must be sought between different judgements. Such commonalities, he holds, can be ‘anything’ – including even enunciations of any rule or principle of law, or determination of a legal point in issue.

Justice Khawaja’s judgement - much like that of the eight other members - considered the constitutionality of Article 63A and arrived at their conclusion through a reasoned interpretation of its text. Even if the fate of 63A was distinct, would a common interpretation not be such a ‘commonality’? And even if the interpretation were different, did this not at least merit inclusion in the short order’s tally?

Perhaps their Lordships’ view in the Justice Isa review didn’t matter: ironically it, too, was a minority judgment. Perhaps they had another change of heart (two hearts, this time). Perhaps that, too, was a mistake.

But who are we to judge others by the mistakes they make, when there is so much yet to learn?

The writer is a lawyer. He tweets @brainmasalaar and can be reached at: [email protected]

Originally published in The News