SC verdict on Article 63-A corrects a constitutional wrong but its timing is debatable

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SC verdict on Article 63-A corrects a constitutional wrong but its timing is debatable​

Will this judgment and the subsequent amendments resolve our deep

Controversial timing​

Editorial
October 5, 2024

A WRONG has been righted. But to what extent? The Supreme Court’s decision to reverse its 2022 opinion on Article 63-A, allowing votes cast by defecting lawmakers to be counted, corrects a constitutional wrong.

The earlier ruling had unjustly meant that not only would party defectors be stripped of their seats, but their votes too would be discarded. This was viewed by many as an overreach that went beyond the intent of Article 63-A, which sought only to disqualify defectors, not nullify their votes. On its own, the reversal can be seen as a welcome move that restores the true essence of parliamentary democracy.

However, the timing of this ruling is debatable. The verdict comes at a time when the government is determined to push through a contentious ‘constitutional package’ which aims to curtail the judiciary’s powers by introducing amendments that would pave the way for a ‘federal constitutional court’. Now that the defectors’ votes can be counted, this ruling may set in motion horse-trading, handing the government the numbers it needs. In that sense, the ruling cannot be viewed in isolation — it potentially opens the doors for a sweeping reconfiguration of the judiciary and the balance of power.

The proposed amendments include plans to limit the apex court’s jurisdiction and alter the process by which judges are appointed. This will significantly rob the judiciary of its independence and shift the balance of power to the executive. Critics say that this package is less about strengthening the Constitution and more about consolidating political control by a ruling coalition that has struggled to muster enough support for its agenda.

So, the optics of the verdict, unfortunately, are troubling. While the judgment undoes a past wrong, it risks being perceived as enabling a myopic political agenda. Such a perception could further erode public trust in the judiciary, especially in a climate already rife with accusations of political manoeuvring.

There is a broader question at play: will this judgment and the subsequent amendments resolve our deep-seated political instability or exacerbate the challenges?

Given the manner in which events have unfolded of late, it seems the latter is more likely. The amendments seem tailor-made to benefit those pushing for them, with the verdict regrettably strengthening their hand. One way these concerns could be mitigated is if the incumbent chief justice publicly declares that he is neither a candidate for any position within the proposed constitutional court nor does he seek an extension in his tenure.

Such a declaration would go a long way in dispelling any doubts about the court’s impartiality. Without such reassurances, the verdict — while rectifying an earlier decision — may end up serving as the pawn in a larger, more troubling game.

Published in Dawn, October 5th, 2024