Article 63 (2)

May 6^th 2012

Amidst the circus surrounding the conviction of our elected Prime Minister YRG, I am not completely sure if my non legal two cents has much value, especially when there is TMI (too much information) and perhaps intended to confuse?

But what has completely astounded me is the lack of ‘rational’ or ‘logical’ conclusions a seemingly straightforward Judgment has caused. Clearly when our esteemed Supreme Court convict’s an accused and refers to an Article while sentencing it is insufficient in Pakistan to come to a conclusive understanding of what has happened. Ha! Ha?

Challo,  nevertheless, it seems those who are hell bent on supporting a convicted member of Parliament  are now insisting that Article 63 part 2  provides the loophole ( necessary ?), allowing the Speaker of the Lower house of Parliament the space to ‘interpret the Supreme court’s Judgment’ .  Before we discuss this line of thinking, let’s review Article 63 (2):

 , ‘If any question arises whether a member of Majlis-e- Shoora  (Parliament) has become disqualified from being a member, the Speaker or, as the case maybe, the Chairman shall, within thirty days from raising of such question refer the question to the Chief Election Commissioner; ‘ .   

Or is it

Article 63(2)

If any question arises whether a member of Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and should he fail to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.

As with so many arguments and discussions just getting the basic facts are confusing, in Pakistani style, I discovered two versions of article 63 (2). The first is in the widely available green book, published by  Zaka Ali  2012, ‘ The Constitution of the Islamic Republic of Pakistan (as amended by the constitution nineteenth amdt act 2010 act no 1 of 2011) ’ and   the second  version is available on the internet  at  www.Pakistan.org   ‘The Constitution of Pakistan’ ,  which  to my surprise and confusion had an additional sentence in  Article 63 (2) .

Even before I begin to contemplate the merits of my argument, I have had figure out which version is actually accurate; facts or fiction is completely subjective in Pakistan. Clearly in widely circulated published documents as well.

Moving on, and on a more productive and positive note, it is encouraging that this circus has initiated a widespread public discourse; more important, is for us to familiarize ourselves with our social contract. To exercise perspectives however informed or uninformed is a decent start for a active participatory civil society and a healthy society.

 BUT at the same time it is critical, that we acknowledge and also understand the basic principles of governance and what constitute the foundations of a democratic functional state.  We should understand how democratic states operate, for example, elections are certainly an important part of determining a mandate and legitimacy of elected members; but are not the only barometer or the mechanism of accountability through the process of democracy.  The Voice of the people Demos have many faces and there are checks and balances necessary to ensure justice, rule of law and coherence for all. There is no Exceptionalism. This is idea must be understood in Pakistan.

Exceptionalism is inherent in our culture and polity and is incongruent with blind justice for all and certainly has little space in the rule of law. Thus whether one is poor rich Muslim Christian, a Prime Minister, Punjabi or Sindhi there is no law which can make an exception in Judging according to the laws of the State. 

Similarly, the separation of powers between the Executive (manages governance), legislative (makes laws) and the Judiciary (interprets laws) must be understood.  The institutions which run and manage a state have been developed so they may function effectively in coherence with one another in there sphere of assignment.

 In this common understanding, now let’s look at what are the responsibilities of the Courts? As I understand it, the Supreme Court is exclusively responsible for 1) interpreting the law of the land and 2) the final judgment on/ any arising dispute or violation of laws. There is always a Court of Appeal determined by an alternative court to review decisions. Let’s not be naïve, there have been miscarriages of justice in the past, and there are processes and procedures to review these .We must exercise this right and NOT bypass them or undermine the institution which is authorized to handle these matters. 

Let’s look at the Article 63 (2) now; if we can agree the Supreme Court is responsible and is the technical agency which interprets the laws, how can the sentence ‘unless he decides that no such question has arisen (in version 2 of the Article 63 (2))   enable the Speaker/Chair in the Parliament to interpret matters of law?   Both the Chair and Speaker are legally  unqualified member(s) of the legislature and as a result cannot have the discretion to interpret Judgment(s) of the Supreme Court.  This line of thought is how I see a logical argument unfolding, but then I am also not legally qualified?

Those who may argue, that the Constitution has given this space to Parliament, I would suggest respectfully, first, this interpretation undermines the principles of  the separation of powers between the institutions that govern our state, and hence impinges on an area beyond the purview of the legislature. Secondly from the perspective of impartiality, how can a member of a political party provide an unbiased opinion of (her) Boss? Justice is blind isn’t it?  It is rational to conclude neither is the legislature suppose to be put in this situation by design or expected to be in  such a situation under any kind of scenario.

Emotional and irrational opinions on legal matters do not assist the process of democraticizing a polity.  Let’s take a breather and remind ourselves’ does this make sense?  In our endeavor to strengthen our weak democratic process we must FOCUS on strengthening and supporting the systems not protect political parties or specific individuals; institutions must be allowed to develop, evolve, and maintain the checks and balances between our institutions. No Exceptions.  Hence let the institution assigned to do their work function without muddling and confusing the matter through political lens. History is History let’s look at the present.

The accusation that ‘justice has not been served’ while the ‘law has been applied’ in this particular case of the Contempt of Court conviction requires a little analysis as well. How has democracy been undermined?  Convicting an elected Member of Parliament doesn’t undermine the process of law and order, or democratic governance. Rather it has strengthens it.  If our courts begin insuring our elite triumvirate, politicians, bureaucrats, and our armed forces are finally accountable to the electorates we may yet have some hope in becoming a law abiding civilized nation. The chronology of why are the politicians the first to be booked for their transgressions, well that is a good question, but also a childish and churlish one.

 Why you ask? Well the crimes of the politicians do not justify the crimes of the bureaucrats or the armed forces. They are all accountable and should be booked. One law for all. One justice for all. No exceptionalism.  And yes perhaps our politicians are the least ‘corrupt’ comparatively, but  it still does not justify undermining the legitimate imperative of the court to rule when a law is flouted  and in this specific case, a ‘contempt of court’ has been determined by inaction by the Executive and the Legislature.

It is important to support the Courts when they attempt to bring some order on those who have a heavy responsibility of leading the way by demonstrating that they will abide by the rules of engagement determined by our social contract- The Constitution. No Exceptionalism.