Larger bench may keep controversy at bay

As the political turmoil heads towards courts, senior law experts have said that the composition of a larger bench will prove to be a better way to adjudicate the fate of presidential reference seeking interpretation and scope of Article 63 (A) of the Constitution.

Concerned that the top court’s closely-watched proceedings and final verdict can potentially translate into another political controversy, senior lawyers said that in order to avoid controversy, the CJP should form a larger bench comprising five senior-most judges of the apex court.

On Monday, Supreme Court Justice Munib Akhtar observed that after joining a political party, a lawmaker's individual vote during no-confidence proceedings was considered a "collective right".
He said that according to Article 95(ii) of the Constitution, which deals with the procedure to bring in a no-confidence motion against the prime minister, a member's individual vote had "no status", adding that the court had previously made similar observations in cases related to former prime ministers Benazir Bhutto and Nawaz Sharif.

The observations made by the SC justice were soon subjected to various swirling speculations and came as a shot in the arm of the embattled government. However, the opposition parties, too, trumpeted that the court’s proceedings were heading towards their victory. The rationale cited by the opposition parties for their upbeat viewing of the apex court’s statement is that the court has also issued notices to the respondents for their assistance in ensuring a smooth, lawful and peaceful completion of the process under Article 95 of the Constitution, related to the no-confidence vote against the prime minister.

On the other hand, the government side is excited that the apex court refused to entertain the contentions against Speaker National Assembly Asad Qaiser who did not summon the session of Parliament within 14 days in view of Article 54 of the Constitution on the grounds that these were internal proceedings of the parliament and the court would not intervene into it. A lawyer, who is pleading a political party case, that a “pick-and-choose” in the composition of the larger bench would not benefit the opposition.

Likewise, Justice Munib Akhtar's observations have also given hope to the PTI government that the political ground has not still completely slipped away. Justice Akhtar observed that individual MNA's right to vote is not absolute. However, the political parties’ rights are protected under Article 17 of the constitution. The PTI lawyers believe that SC judge observations are supporting the government stance in the presidential reference.

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Meanwhile, some law experts say that when there is an opportunity to adjudicate a matter related to Article 63 (A) under appellant jurisdiction then the apex court should avoid giving answers to questions raised in presidential reference. The lawyer wondered as to why was the court giving an opinion that is “benefitting the ruling party in the political field”.
SC Judge Justice Yahya Afridi while giving an opinion on the maintainability of the last presidential reference on the method of Senate elections said that a careful reading of Article 186 of the Constitution highlights three essentials.

“First, the worthy President has the power to refer a ‘question of law’ to the Supreme Court for consideration and reporting its opinion thereon; second, the worthy President must consider the said question to be of ‘public importance’; and lastly, the Supreme Court is to consider and report its opinion on the referred ‘question of law’ of ‘public importance’.”

“The authority to determine, whether a particular ‘question’ is of ‘public importance’ is conferred by the Constitution on the worthy President, but the determination, as to whether or not the same is a ‘question of law’, respectfully stated, does not fall within his exclusive domain - but remains with this court. And that too, as a jurisdictional fact, before this court ventures to render its opinion on the question referred to it in the reference.”

Thus, once the court finds that the ‘question’ referred to it is a ‘question of law’, only then will the court consider the same, and report its opinion thereon to the president, Justice Yahya observed. SC judge said that the jurisdictional contours of the ‘advisory jurisdiction’ of this Court are not settled and the legal efficacy of the ‘opinion’ remains binding and that too, without any judicial check or any clarity in the composition of the bench of this court, particularly the numeric strength of the bench and the seniority of its members that is to hear a reference in its ‘advisory jurisdiction’.

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“The standard of determining clarity and precision in a ‘question of law’ envisaged under Article 186 is required to be raised to ensure that it is free from political overtones or undertones - Lest it may expose this Court to the unwitting condemnation of bias and crossing the delicate boundaries of ‘trichotomy of power’ engrained in the Constitution.” “We must not forget that democracy is never bereft of the divide.

The very essence of the political system is to rectify such disagreements, but to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice – raison d’etre’ of democracy,” he observed. He said that: “We must also remain cognizant that there will always be crucial events in the life of a nation, where the political system may disappoint, but this cannot lead to the conclusion that the judiciary will provide a better recourse.”

In fact, he added, the role of the courts ought not to be expanded to entrench on other organs of the state but must remain to function within the ambit of determining questions on the basis of legality alone, as otherwise, the courts can pass findings on political issues, without being politically accountable or responsible to anyone.

As a result, careful judicial treading is needed to ensure that the courts are not indulging in decision-making to rectify moral wrongs, which in my view should best be left in the hands of the elected majority.
Justice Afridi also said that in such a clear split between the ruling political parties and major opposition political parties, and the charged political atmosphere, the resolution of the question through the intervention of the court, and that too in its advisory jurisdiction, would be, in my considered opinion, inappropriate and, to say the least, would invite untoward criticism on the court.