63A defines defection. Voting against one's party as I said it, happens all the time. Happens in democracies all over the world. In the UK, there was a huge parliamentary process to push through the EU withdrawal act, government tried three votes if I'm not mistaken, first two times it failed despite the imposition of a three-line whip - and it should be noted that this is the whole point of having the whip. Members vote against government's bills all the time, par for the course. Defection and floor crossing are another matter.
The issue with PTI's stance on this is that they wish to apply it retroactively and before the vote, or after counting, and without going through the proper process - bending the rules in a bid to save IK. Here's what 63A says on the subject of the relevant grounds for disqualification, and the ultimate process (I've highlighted both pertinent points here):
Anyway, I reserve my comments on 63A, I think it needs serious change. But let's see if the SC agrees with either the PTI's view of the Speaker being able to pre-empt or retrospectively disqualify members and/or their votes, vs. the above reading which says that the vote and the member stand until the matter is escalated via the courts and the ECP. IMO the latter is more likely, 63A is more reactive - it's also a deterrent but I can't think of any examples where it was preventatively applied, and that too in the manner that IK + Speaker wish to apply it.
My knowledge of law and constitutional theory/jurisprudence is extremely limited. I'd invite more knowledgeable members to comment on the likely SC opinion outcome of reading the above.
@saiyan0321
My friend, first of all sorry for late reply. I have left the forum. It seems that answer is in the negative. I am also replying to you despite my leaving due to the fact that you are among the posters I have a lot of respect for as i have learned alot from you as well as
@Joe Shearer @PanzerKiel @Chak Bamu @M. Sarmad @Nilgiri @Slav Defence @SQ8 @Irfan Baloch @jaibi @That Guy
Now concerning your query. Allow me to give you a little of my analysis as well as any other query that you may have, whose answer I shall provide in this reply by anticipating the query. Now for this discussion I must first reproduce the defection law itself.
| 63A. | Disqualification on grounds of defection, etc.
| (1) | If a member of a Parliamentary Party composed of a single political party in a House-
| (a) | resigns from membership of his political party or joins another Parliamentary Party; or | | (b) | votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relations to-
| (i) | election of the Prime Minister or the Chief Minister; or | | (ii) | a vote of confidence or a vote of no-confidence; or | | (iii) | a Money Bill or a Constitution (Amendment) Bill; |
|
he may be declared in writing by the Party Head to have defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned:
Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.
Explanation: "Party Head" means any person, by whatever name called, declared as such by the Party. | | | | (2) | A member of a House shall be deemed to be a member of a Parliamentary Party if he having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing. | | | | (3) | Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner. | | | | (4) | Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant. | | | | (5) | Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal. | | | | (6) | Nothing contained in this Article shall apply to the Chairman or Speaker of a House. | | | | (7) | For the purpose of this Article -
| (a) | "House" means the National Assembly or the Senate in relation to the Federation and a Provincial Assembly in relation to the Province, as the case may be. | | (b) | "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be. |
| | | | (8) | Article 63A substituted as aforesaid shall come into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010:
Provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative. |
|
So with the above, we can peruse that the law is that if any member resigns from his political party or joins another political party or votes or abstains against the party legislative position then he will be declared to have been defected and the member’s seat shall be declared vacant however as can be seen above, there is a process to this and this is where we see the issue rising.
The process in the constitution stated that whenever a candidate acts in such a manner then the party head shall issue him a Show-Cause Notice and then issue a declaration that he is to be removed from his party and the parliament to the presiding officer, who shall send one copy to the member and one to the election commissioner who shall then summon the member in 2 days and decide whether his action constituted defection and this shall be done in 30 days and the aggrieved party may file an appeal to the Supreme Court within 30 days.
What does this mean? Well it means that a person can defect legally and still remain Member of Parliament and act accordingly till his removal through the above procedure.
Now Both Fawad Chaudhary and Babar Awan have declared that the the Speaker is empowered to discount the votes of any defecting candidate and immediately tell that member to vacate his seat however the constitution has not empowered the Speaker in this manner at any point both in the constitution as well as in Chapter III of the Rules of Procedure concerning the National Assembly. Yet the fact that PTI is spreading this misinformation means that PTI will once again trample over law and constitution for their own ends and will try to protect Imran but here is the thing. If the Speaker acts in such a manner then we may see this case going to court and ECP and both are annoyed with Imran and will see this action as another illegal attempt. Now, I highlighted that ECP has been annoyed with Imran and here is why? Imran has been muscling the ECP in the foreign funding case and their internal party elections and we have seen ECP crackdown much harder on PTI in retaliation and this has peaked when Imran, throwing away all semblance of legislative decency, allowed office holders to run election by amending the ECP code of conduct and it doesn’t take a genius to understand that this will bring along the entire state’s machinery. A pathetic move in empowering the status quo from an individual who promised changed. ECP has decided to not follow the code of conduct but it’s a clash that is coming to head and this was the absolute worst time for this clash to happen as ECP will be a major player in days to come. Opposition has also voiced deep concerns. In this right, ECP sees itself protecting the Constitutional Law and PTI as the tyrannical aggressor.
Now coming to the interpretation of law. The interpretation forwarded by PTI is ridiculous to say the least and this can be seen, not just from the bare perusal but also from previous judgments passed by court. Amazingly in 2018 CLC 1202 it was argued that the procedure described in 63A actually protects the fundamental rights of an individual since they will not be arbitrarily removed but would be removed through proper procedure where they will be given the right to trial in accordance to Article 10-A and it is a wonderful judgment on defection, no surprise since it was authored by the Peshawar High Court but it highlights the constitutional history regarding defection law as well as how the elements of procedure actually protects the individual’s rights but also penalizes the element of floor crossing. So what happens when that procedure is not followed? What happens during the implementation of this procedure? Can he act in such a manner as a member parliamentarian? The law is absent in this regard but here we see two settled principles of law come to play which are the central aspects of interpreting statutes.
First is that nobody can interpret the law to add to the legislator which means that while the words of the legislator can be interpreted conservatively and liberally but they cannot be added into. If the legislator did not add in penalty then no institution can substitute its own penalty in its place. The law is silent on whether that member will be considered to be a member during the aforementioned period and thus it is to be deemed that the legislative, in it’s wisdom, had deemed that the member shall not be suspended or removed during this period.
The second principle of law that Penal offences are to be construed very conservatively and they cannot be expanded to include new facts and this was highlighted in the Land mark case regarding defection and it is a massive judgment since it also allowed for ad-interim relief. The judgment is 1998 PLD 1263 SC wherein the court granted interim relief stopping the state from taking action against members till the decision of court so the alleged defectees continued to be members despite the alleged cause of action. The court held the following highlighting the conservative interpretation of the penal offence
“We are unable to agree with the submission of the learned Attorney-General, Ch. Muhammad Farooq and Mr. S. Sharifuddin Pirzada, learned senior counsel for the Federation, that paragraph (a) to Explanation to clause (1) of Article 63A of the Constitution would also include the conduct of a member of the Parliament outside the House. The view, which I am inclined to take is also in conformity with the well-settled principle of interpretation that a penal provision should be construed strictly and its scope should not be extended unless it is so required by the clear language used therein or by necessary intentment. A member cannot be disqualified under Article 63A on the ground of his alleged misconduct committed outside the precinct of the Parliament, and I for that an action is to be taken according to the party constitution and not under Article 63A which regulates the conduct and behaviour of the members within the House of Parliament.”
The judgment also held that removal of membership was to happen through proper procedure and following of said procedure.
In 2018 PLD 370 the Supreme Court highlighted this limitation
“Referring to Article 63A of the Constitution, the learned ASC submitted that the said provision was incorporated in its present form in the Constitution through the Eighteenth Amendment Act, 2010. It has a limited purpose namely to act as an anti- defection measure and disqualification of a member of the parliamentary party in the event of his resignation from membership of his party, joining another party, voting or abstaining from voting in the House contrary to any direction issued by his Parliamentary Party in relation to the election of the Prime Minister or the Chief Minister or a vote of confidence or no confidence or a Money Bill or a Constitution Amendment Bill. Even in that eventuality, the learned counsel submits that the Party Head can only declare that such member had defected from his party and may forward a copy of such declaration to the Presiding Officer and the Chief Election Commissioner. The Chief Election Commissioner is required to lay the declaration before the Election Commission. If the Election Commission confirms such declaration, in that eventuality, the member in question ceases to be a member of the House. He therefore submits that the role of the Party Head under Article 63A of the Constitution is largely ceremonial for a limited purpose and it is not correct to assume that the Party Head is all powerful and can dictate and impose his will on the members of the Parliament who constitute the parliamentary party of a particular political party. He submits that the Party Head can either issue a declaration or refrain from issuing such declaration and condone any act of a member of the parliamentary party that may possibly fall within the mischief of Article 63A of the Constitution.”
Similar procedure was followed in 2018 PLD 97 SC
In 2018 PLD 300 SC it was held that application has to be made to the ECP and nobody can be removed in such a manner without order of ECP.
However another Landmark judgment that cemented this procedure was 2018 SCMR 1043 and for sake of shughal the title of the case was Imran Khan Niazi vs Ayesha Gulalai and herein the Court held that no process could be circumvented nor ignored. You see our cheeky PM and his extremely well-paid and expensive legal team acted like 500 wala lawyer and sent her Show Cause Notice which was dated 10-08-2017 but was sent on 18-07-2018 asking her to reply in 7 days of issuance of this notice. Well what happened was that the Court adjudged that this was illegal and held the following
11. It has further been argued on behalf of the Appellant that a show cause notice was issued to the Respondent spelling out the allegations against her and calling upon her to respond to the same. However, despite receipt of the show cause notice, she failed to respond to the same and clarify her position which means that she had nothing to say in her defence and admitted the allegations mentioned in the show cause notice. In this context, the Election Commission found that although the show cause notice was dated 10.08.2017, it was dispatched through courier service on 18.08.2017. The show cause notice stated that the Respondent had to file her reply within seven days of the same. This being so, the period given to her to respond had already expired by the time the show cause notice was dispatched on 18.08.2017. There was enough material on record to indicate that the Respondent sent her reply to the show cause notice on 24.08.2017 which was received on behalf of the Party Head. Yet, the declaration issued against the Respondent on 28.08.2017 neither referred to the response to the show cause notice nor acknowledged the fact that such response had been received. On the contrary, an impression was sought to be created that the Respondent had failed to respond to the show cause notice which was incorrect. This also shows that the Respondent was neither given a reasonable opportunity to defend her position nor the stance taken by her in her response to the show cause notice even considered. The Election Commission found and we agree that the Respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the Party Head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him. It is clear and obvious from the record that the Respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights.
The appeal by Imran was dismissed but it highlights how the law has been interpreted so far and how any deviation from the process will only be another nail to the constitutional stability of the country and will be challenged in Courts and as you can see we are here in this court. Now the argument that 63A may take penalization from Article 62 is also not a proper argument. The argument of previous Articles influencing the subsequent articles stems from the Constitutional Interpretation Rule that a Constitution is not to be read on its own but as a whole, each article influencing and impacting the other and reading Articles in isolation is bad principle when reading a Constitution and this is a true principle however this Interpretation model clashed with another interpretation model regarding law which is, as I mentioned above, regarding the interpretation of Penal Articles and Article 63A is Penal in nature. The law is that since Penal Clauses, Sections and Articles are inherently impact the Right of an Individual, then they are to be interpreted very conservatively because the idea is to protect the right of an individual thus the expansive and liberal interpretation model concerning Constitutional Provisions is not applicable where the Article is Penal in nature and this interpretation stems from the Constitution itself since the same comes under Article 10A, Right to a Fair Trial. So one can even argue that the two models are not in conflict with each other but are supporting each other and a conservative interpretation model being applied to a Constitutional Provision is within the definition of Liberal Constitutional Interpretation which asks for expansive constitutional interpretation since 63A is being impacted by Article 10A. I hope I have not ventured too deep into law.
Now I am guessing you wish to also ask of my remarks regarding the current case in Supreme Court. First of all, I cannot, for any certainty claim that the SC XYZ judgment however through Precedents and interpretations that courts have utilized, I can make make an analysis as to which why the pendulum might swing however be advised that the court may utilize “Distinguishable Facts” Doctrine and simply pass a new ruling and the circumstances are quite unprecedented. The Articles that are under review is mainly Article 69 which deals with parliamentary privilege and I shall reproduce it here for your perusal.
Courts not to inquire into proceedings of Majlis-e-Shoora
(Parliament)
69. (1) The validity of any proceedings in 1[Majlis-e-Shoora
(Parliament)] shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of 1[Majlis-e-Shoora Parliament)] in
whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in 1[Majlis-e-Shoora (Parliament)], shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers
(3) In this Article, 1[Majlis-e-Shoora (Parliament)] has the
same meaning as in Article 66.
The above, if perused highlights quite clearly that the Courts are restricted from interfering into Parliamentary procedure and this has been upheld numerous times and this principle comes under the trichotomy of power so that the legislative, which is home to elected individuals can be a place of safe haven for assembly members to discuss matters without fear of any reprisal. The topics discussed within the parliament are forbidden to be brought to the Court and this is an old principle in Westminster parliament system and this is so that no elected representative be attacked and can speak freely on the issues that are plaguing the nation. Now if you would notice that the aforementioned Article states Article 66 as well which is the following
Privileges of members, etc.
66. (1) Subject to the Constitution and to the rules of procedure of 2[Majlis-e-Shoora (Parliament)], there shall be freedom of speech in 2[Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in 2[Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of 2[Majlis-e-Shoora (Parliament)] of any report, paper, votes or proceedings.
(2) In other respects, the powers, immunities and privileges of
2[Majlis-e-Shoora (Parliament)], and the immunities and privileges of the members of 2[Majlis-e-Shoora (Parliament)], shall be such as may from time to time be defined by law and, until so defined, shall be such as were, mmediately before the commencing day, enjoyed by the National Assembly of Pakistan and the committees thereof and its members.
(3) Provision may be made by law for the punishment, by a
House, of persons who refuse to give evidence or produce documents before a committee of the House when duly required by the chairman of the committee so to do :
Provided that any such law—
(a) may empower a court to punish a person who refuses to give evidence or produce documents; and
(b) shall have effect subject to such Order for safeguarding
confidential matters from disclosure as may be made by the
President.
(4) The provisions of this Article shall apply to persons who
have the right to speak in, and otherwise to take part in the proceedings of, 1[Majlis-e-Shoora (Parliament)] as they apply to members.
(5) In this Article. 1[Majlis-e-Shoora (Parliament)] means
either House or a joint sitting, or a committee thereof
It can be fairly determined that Article 69 is to be read with Article 66 and thus is home to immunity however is this immunity vast and borderless, encompassing any and all actions that take place within the parliament. Privilege given to a parliamentarian was meant to protect the parliament from authoritarian actions rather than the parliament becoming authoritarian and if today it is ruled that the speaker is an unrivaled authority who can do anything to the parliament when the parliament is in a session, then this can have negative impacts tomorrow as tomorrow any party of the PDM may win and become dictatorial and this is where the Supreme Court is struggling as it has to balance the aforementioned Articles with the principle that the Speaker is justiciable. So is the Speaker justiciable. I have seen many point to Article 69 and many have even used a PHC case law to bring forth their arguments. Unfortunately many are not lawyers and don’t understand law. No individual is above the Constitution and any institution or individual that draws its legitimacy or power from the Constitution cannot go behind the Constitution and take unconstitutional steps but what happens if the speaker does anything unconstitutional? What remedy does an individual whose rights have been impeded by an unconstitutional act committed by the speaker has? None? Ofcourse not and funnily enough this bench and the bench hearing 63A highlighted this fact when they stated that the speaker stopping anyone from voting would be unconstitutional and challengeable. So that means that the bench is not sold on the principle of parliamentary action immune from judicial review. Now the question is whether such an action is justiciable? Yes it is and it has been in a number of cases. Whilst it is true that parliamentary proceedings cannot be challenged in the court of law, it is also a settled principle of law that if anyone’s fundamental rights are violated or if any organ of state takes an unconstitutional action, then the same is liable to be challenged. And if the learned legal team of the government feels differently, then we can always go through the judicial history of Article 69, which bars courts from putting the proceedings on trial and a bare perusal informs us that initially the action of the Speaker was declared non-justiciable by a majority decision in Ahmad Saeed Kirmani’s case
PLD 1956 Lahore 807. However, with time, the judicial inclination tilted in favour of assuming jurisdiction and the action of the Speaker regarding resignations of members was declared justiciable in Fazalul Quader Chaudhury’s case
PLD 1966 SC 105. This view was further confirmed in Farzand Ali’s case
PLD 1970 SC 98, Muhammad Anwar Durrani’s case
PLD 1989 Quetta-25, Muhammad Naeem Akhtar’s case
1992 CLC 2043 and Mining Industries Pakistan’s case
PLD 2006 Quetta 36. Similarly, the ruling of the Speaker of the National Assembly was also declared justiciable, declaring the same to be outside the scope of proceedings provided under Article 69 of the Constitution in Muhammad Azhar Siddiqui’s case
PLD 2012 SC 774. In addition, even the administrative actions of the worthy Speaker have been declared justiciable in Shamsuddin’s case
1995 PLC (CS) 8. Interestingly, a writ of mandamus was also issued, directing the worthy Chairman to produce a member to exercise his right of vote in the Senate by full Bench of the Sindh High Court in Asif Ali Zardari’s case
PLD 1999 Karachi 54, wherein it is held that;
“It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus made immune, though subject to time honoured constrains. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily, is circumscribed by “formal transaction of business” concomitant to such internal proceedings.”
Further reliance is placed on 2011 PTD 2643 where the question related to money bill and Article 73 which contained a similar bar ousting the power of courts and the Courts held in the aforementioned case that wherever the act is unconstitutional, its authority was not barred.
As to the ouster clause in Article 73(5) of the Constitution which provides that every Money Bill shall bear a certificate under the hand of the, Speaker of the National Assembly and the said certificate shall be conclusive for all purposes and shall not be called in question. The said ouster clause does not give protection to an unconstitutional act or an act that is without jurisdiction, corum non-judice and based on mala fide. This question stands well settled in Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 SC 61), The State v. Zia-ur-Rahman and others, (PLD 1973 SC 49), Miss Asma Jilani v. The Government of the Punjab and another, (PLD 1972 SC 139), The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others, (PLD 1974 SC 151), Pir Sabir Shah v. Federation of Pakistan and others, (PLD 1994 SC 738) and Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others (PLD 1966 SC 1).
Infact further reliance is placed on a very massive case which was Imran khan vs Nawaz sharif PLD 2017SC 265 wherein the Court held the following
Before referring the matter to the Election Commission, the Speaker/Chairman has 30 days to decide whether or not such question has arisen and if he decides that no such question has arisen he has the power to refuse to refer the question to the Election Commission for decision. However, the decision of the Speaker has to be made on the basis of lawful, valid and cogent reasons showing due application of mind to the facts, circumstances and material placed before the Speaker/Chairman, as the case may be. Such decision is justiciable before Courts of competent jurisdiction. If a Court of competent jurisdiction on being approached by any of the parties finds that the decision of the Speaker/Chairman is legally or factually incorrect it can set aside such decision, and pass appropriate orders in accordance with the law and the Constitution to refer the matter to the Election Commission of Pakistan.
If parliamentary proceedings were truly immune from judicial review then wouldn’t that mean that the Court couldn’t strike down any legislation passed by the parliament after all the session would be in place, majority representatives would have passed the impugned legislation and proper procedure would have followed yet how can the said legislation come under Judicial Review. Why the bar wont work here? Because if an act is unconstitutional then it challengeable. No Article is Supreme and no individual is above the Constitution. That’s how the law has evolved and Speaker is not immune from judicial review. Heck he has faced judicial review before. The problem here is that if the ruling is challenged then it can open a way where everybody can challenge all rulings under Article 184 of the Constitution which would make Speaker no different than another executive organ being sued like the Chief Secretary or S&GAD and the decisions they pass which can be challenged. Its all about specific conditions and this will be an important aspect in the detailed judgment of this case.
With the above, I have concluded that the speaker is justiciable and let me give you another hint. Any lawyer that is arguing on the maintainability or Article 69 solely has picked the wrong ground to base their case on. This is not some Petition filed by XYZ on which you can discuss that it’s not maintainable status in preliminary hearing. It’s a SUO MOTO proceeding which means that question of jurisdiction and maintainability can no longer be entertained since those questions have already been answered by the Court with a big YES WE HAVE JURISDICTION AND YES THIS IS MAINTAINABLE. So the grounds to argue must be that the speaker did a constitutional act. Infact their minds regarding the justiciable under Article 69 is already set. Its whether the act is justiciable is the question. Here is the thing. Do you really think they would take SUO MOTO Action, make a five member bench. Which delayed 1000s of cases since all of those judges would have to leave their respected benches half the proceeding delaying the 100s of cases that were to be heard. Most of them got leftover. Left over is when a case is not heard in a day. It is left over and the worst thing is that unless by some luck, a date is set by reader, 99% you have to give CM to get the case for another hearing otherwise left over can go for years. I have a case that has been left over for years. We are not giving CM since we got the interim relief and the opposition doesn’t have documents thus left over for 5 years.
So is the Court has done such a massive step, then do you think they will end the proceedings saying, “Oops we didn’t have jurisdiction.” No they wont.
Carrying on. The opposition has acted against the Constitution as well and frankly the SC has given them a massive relief which nobody has noticed. When the Deputy Speaker left, the session was called off yet the opposition member Ayaz Saidq sat on the seat of Speaker and presided over the Session. Running a parallel session is Treason because its hijacking the parliament and holding a session when the same session had ended thus besmirching the Constitution. They simply cant do that and the fact that they did is disgusting. They got away with it and they shouldn’t have. It is clear that the Constitution has been severely violated in these past few days. By the way that Hamza election is also illegal and absurd.
Constitutions have been defined all over the world in many manners and Pakistan does not have a constitution. It has a document that we call a constitution as a means to have a front and semblance of sanctity with a semblance that it brings in security however the document is neither sacrosanct nor supreme and this is shown repeatedly and this is why we are a lawless country doomed to forever be embroiled in these absurdities.
Parliamentary debate concerning Constitutions is very important as they highlight to future lawmakers and judges on what the framers thought about the document but unfortunately we have not received neither the discipline of the constitution aka the ability to construct and frame Articles nor did we discuss the Constitutions and their amendments in a deep manner. The Indian Constitution is a good case study in this that it was the largest constitution in the world and it has imported many Articles from foreign Constitutions most notably being Ireland yet to legitimize and own those articles, it discussed each and every article in great depth with repeated discussions happening and the Indian Supreme Court often relies on those debates to interpret and understand the mind of the framer. A luxury we don’t have since we constructed a Constitution without undergoing the proper debates. We imported articles without any understanding behind those articles and what impact they will have on the state and the trichotomy of power. For God’s Sake, we passed 18th amendment that changed over 1/3rd of the Constitution and it was barely discussed under the garb of unanimous passage. Discussion is extremely important and we are so undisciplined that we cant even do that.
Lastly are all of you aware of another Article that bars Courts from looking into parliamentary proceedings? Passed under Zia its Article 239 which bars court from questioning any law passed by the parliament and declares that parliament is most powerful and unquestionable. This was passed by Zia. The Court interpreted the Article in Case law PLD 2015 SC 45, I believe wherein it stated that the word COURT does not include the Supreme Court but the High Court and the other Courts of law however the Supreme Court does not come under the definition of COURT since the constitution, wherever it mentioned the Supreme Court, mentioned it as SUPREME COURT and not as COURT thus the Constitutional bars are on High Courts and other lower Courts but not the Supreme Courts and the power of judicial review cannot be impacted in any way possible. So it can be interpreted that the word "Courts" in Article 66 and 69 could be argued, in light of the interpretation, to not include the Supreme Court
I don’t know what decision the SC will pass but this is what has happened so far and how the law has evolved. I hope this was helpful and if you wish to contact me then you can reach out to be through my number which you can get from Joe or email me via
usama_khan@hotmail.com
