The (short-lived) Supreme Court ruling that the Vice President’s decision of April 8, 2022 on a point of order rejecting a motion of no confidence in former Prime Minister Imran Khan was declared unconstitutional has sparked a debate in all of society, especially among the legal fraternity.
The downside of entering a political thicket is that applause and criticism are largely based on party affiliations or personal likes and dislikes, with a few exceptions discussing the constitutional principles involved. The SC has shown restraint and maturity in not suppressing dissent following Lord Atkins’ famous maxim that justice is not a cloistered virtue. Justice should be allowed to undergo scrutiny and be respectful, even if the candid comments of the ordinary person. It is in this context that we attempt to examine the constitutional principles involved in this whole affair in order to make sense of a misguided debate.
In the age of classical parliamentary democracy, AV Dicey axiomatically enunciated two interrelated principles of parliamentary sovereignty. Parliament, so defined (Queen in Parliament), declared AV Dicey, has the right, under English law, to make and unmake laws. The second concurrent principle was that no one is recognized by the laws of England to overrule or nullify the legislation of this parliament. This legislative sovereignty of the British parliament was achieved after a long struggle between the king and the commons and lords, as English history testifies. As an ancillary principle, Parliament also developed the principle to protect itself by incorporating into Section 9 of the 1689 Bill of Rights that the validity of any proceedings in Parliament could not be questioned on account of irregularity of procedure. In addition to avoiding the wrath of the king, members and officers of parliament were immune from the jurisdiction of the courts. For matters relating to its composition and functioning, parliament was the highest court in the land.
Article 69 of the Pakistani constitution was borrowed from Article 122 of the Indian constitution which is based on Section 41 of the Government of India Act 1935. A long line of cases, from Stockdale v. Hansard (1839) to Hamilton v. Al-Fayed (1999), have interpreted these provisions in different sets of facts. The first case in Indian jurisdiction was that of the Federal Court of India in Ymayal v Lakshmi (1945). The Privileges and Immunities of Parliament Act was summarized by the Constitution Bench in Ramdas Athhwale (2010). These provisions confer privilege and immunity on members and officers of Parliament.
The above principle has been applied to the old colonies with a modification as much as in the interests of the Empire; the Crown, through its representative (Governor General), could override the legislative bodies as provided for in the constitution. After Independence, things changed fundamentally. It is the written constitution that is now supreme. The powers of all branches of government are subject to the constitution. Further, with the incorporation of fundamental rights and the conferral of jurisdiction on the courts to enforce those rights and by prescribing the powers of various branches of government, the courts have assumed the power of judicial review over the principles of Marbury v Madison.
Section 8 of the constitution, read with section 198(4) and section 199, conferred jurisdiction on the high courts and the Supreme Court to uphold fundamental principles and determine the constitutionality of executive actions, statutory bodies and other constitutional officials and bodies. But unlike the German and continental constitutional courts which had a power of constitutional review, the courts of other jurisdictions developed doctrines to extend their judicial power by judicially reviewing legislation and constitutional amendments (doctrines of basic structure and powers implicit).
The central question: is the decision of the vice-president on a point of order, rejecting a motion of no confidence, protected by article 69 of the constitution on the grounds that the case concerns the debates in parliament? Without going into semantics and technical details, an alternative argument is made. The prohibition in section 69 is not absolute. Moreover, it does not apply to the exercise of the powers of the National Assembly to vote of no confidence under Article 95 of the constitution for the reasons set out here.
It has been held that matters relating to the defection and disqualification of members or the sending of a reference to the Electoral Commission are jurisdictional in nature and therefore not immune from judicial review. Impeachment proceedings in parliament against various state officials are also subject to judicial review.
The “business” nature of a motion of no confidence under Article 95 and the resulting resolution under Article 95(4) relates to another important principle of the constitution. This case involves the cabinet system of government and responsible government. An executive remains in power as long as it has majority support. Votes of confidence and no-confidence are two manifestations of the principles of responsible government that are not part of the legislative activities of Parliament.
Unlike Article 69, which uses the term “Majlis-e-Shoora” (Parliament), Article 95 vests power in the National Assembly with the total majority of votes from which the Prime Minister is elected in under section 91(4). The power to impeach the Prime Minister after the adoption of a resolution by a majority of all the members of the National Assembly under Article 95(4) is a matter for the executive. A resolution of a legislative chamber is not a legislative matter.
The political argument: apart from the facts of the present case, where bad advice and poor presentation ruined a good case inside and outside the National Assembly, in all likelihood, constitutional mischief can be created by a sitting executive by getting the motion of no confidence defeated by getting an advance ruling from the president on a point of order that could vastly undermine several constitutional principles. But to stop these wrongdoings, the Court must have jurisdiction under the constitution. It should be noted that the powers of speakers under Section 73 in relation to the Appropriation Bill have been subject to judicial review in both India (2019) and Pakistan. Similarly, the speaker’s actions under Rule 63(2) were also subject to judicial review. In a Solomon Islands case (1990), the court held that if the decision violated a constitutional right, then the court had jurisdiction over the matter. The case concerned a motion of no confidence.
The Supreme Court declared itself competent in this matter under Article 184(3) of the Constitution. The case was of great public importance, but it remains to be seen how a fundamental right was violated. Case law developed by the Supreme Court, however, shows that the court can judicially review a case if it violates any of the provisions of the constitution. The constitutional principles contained in the constitution only make sense if people are willing to abide by the constitution in letter and spirit.
However, in the race for power of political actors, disregard for ground rules has grown over time due to ineffective accountability that includes judicial oversight and lack of social condemnation of the corrupt. These unconstitutional practices, including interference in the workings of the constitution and the trading of loyalties, will continue to undermine democracy and parliament unless a democratic culture takes root. The best constitution won’t work for the wrong people, and the right people will run their affairs even without written rules.
The author is a Supreme Court Advocate and former Additional Attorney General of Pakistan.