Beyond Precedent

Beyond Precedent

The recent judgement on the changes made to Election Act 2017 (which repealed the Political Parties Ordinance 2002 — PPO), whereby Nawaz Sharif was removed as party head, has driven a wedge between legal experts. Proponents of democracy find themselves arrayed against the defenders of accountability.

Which institution takes precedence? Parliament or the Supreme Court? Is the apex court vested with any right whatsoever to nullify parliamentary legislation after it has received presidential assent?

In countries, such as Pakistan, that have written constitutions, it is this document that is supreme. Every action by state institutions derives its legal validity in purview of the constitutional interpretation given to it by the judiciary. The Supreme Court is thus endowed with the residuary powers to strike down any constitutional amendment or sub-constitutional legislation that is in contravention of fundamental rights or the Constitution’s salient features. However, any intervention by the Supreme Court must be exercised with great caution.

The court’s intervention must be exercised with caution.

Coming to this judgment, it has been alleged that Election Act 2017’s sections 203 and 232 diminish Articles 62, 63, and 63A of the 1973 Constitution. Instead of striking down these provisions, the apex court appears to have ‘read in’ Articles 62, 63 and 63A of the Constitution.

The argument that the right to association is a fundamental one, as enshrined in the Constitution, was put forth. Article 17(2) is specific to political parties and their right to association is subject to “reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan”. It was held in an 11-member Supreme Court decision in the case of Benazir Bhutto versus the Federation of Pakistan (that dealt with a ban on the Pakistan People’s Party-PPP through a presidential order during General Zia’s regime), that no restrictions outside the text of Article 17(2) could be imported, transposed or ‘read in’ this provision of the law.

Further, only one bit of this judgment appears to have been used, while the overall ratio decidendi (the reason for the decision) appears to have been overlooked. From the Benazir Bhutto case, a quote was borrowed that “…Article 17(2) of the Constitution contains the declaration of the right and the restriction in its exercise as authorised by the Constitution. Thus, it is not an absolute or uncontrolled liberty and is accordingly limited in order to be effectively possessed.” However, the very next line “the restrictive clause is exhaustive and is to be narrowly construed” was omitted from the Election Act 2017 judgment and a different colour was inevitably given to the Benazir Bhutto case.

Relying on the Benazir Bhutto case itself, the court appears to have essentially transposed public morality into this provision by stating that it is part and parcel of the Islamic ideology of Pakistan and as per the expression ‘the integrity of Pakistan’.

Despite this broad interpretation given to the term ‘integrity of Pakistan’, the criteria that reasonable restrictions must be imposed by ‘law’ is not fulfilled. There was no law in operation then, which restricted the right of a disqualified person to head a political party. Such a restriction was provided under Section 5 of the PPO, but was repealed by the Election Act 2017. Even if it is accepted that the repeal does not affect any liability already incurred at that time, for the Supreme Court to decide whether Article 17(2) restrictions apply, there must first be a declaration by the federal government that a particular political party is not acting in a proper manner; a reference of this is then made to the court. This apparently did not happen.

By interpreting Article 17 in light of Articles 2A (Objec­tives Resolu­tion), 62, 63 and 63A and the general scheme of the Constitution, the court may have gone beyond settled judicial precedent. Previously, in the Imrana Tiwana case, the bench ruled that the Objectives Resolution could not be used to strike down legislation. Even though admittedly the court has not struck down sections 203 and 232, rather ‘read in’ them Article 62, 63 and 63A, why should a different standard apply? Is ‘reading in’ not to be done in a restrictive manner?

So, while this judgment may seem to be morally correct, the rules of construction and judicial precedent set by a larger bench of the Supreme Court have been sidestepped. The lack of clarity in this judgment could have been removed considerably, had the judiciary explained why the Benazir Bhutto case was different. The judiciary has to ensure that judicial activism is to be exercised not only with caution, but also within the framework of the rules of construction available.

Ironically, the political parties that have approached the Supreme Court to regulate them might be celebrating this verdict today. Yet, there might come a time where it will haunt them.


An earlier version of this article was previously published in DAWN. Republished here with permission.

The views expressed in this article are those of the author and do not necessarily represent the views of or any organization with which she might be associated.

Ayesha Siddique Khan

Author: Ayesha Siddique Khan

The writer is a lawyer.