Learning and Life: SC Bench Fixing results about role of Party Head decisions that use Doctrine of Necessity

Sunday, July 31, 2022

SC Bench Fixing results about role of Party Head decisions that use Doctrine of Necessity

Implications of Supreme Court Judgement

Constitutional Petition Nos 12, 13, 18, 20-22, 31, 35, 38, 40, 42, 43, 44 of 2010
Judges in the Bench (Full Court - 17 Judges): 
- Justice Nasir ul Mulk (CJ)
- Justice Jawwad S Khawja
- Justice Anwar Zaheer Jamali
- Justice Mian Saqib Nisar (Future CJP SC)
- Justice Asif Saeed Khosa (Future CJP SC)
- Justice Sarmad Jalal Osmany
- Justice Amir Hani Muslim
- Justice Ejaz Afzal Khan 
- Justice Ijaz Ahmed Chaudhry 
- Justice Gulzar Ahmed 
- Justice Sheikh Azmat Saeed 
- Justice Iqbal Hameed ur Rahman 
- Justice Mushir Alam 
- Justice Dost Muhammad Khan 
- Justice Umar Ata Bandial (Current CJP SC)
- Justice Qazi Faez Isa (Future CJP SC)
- Justice Maqbool Baqar

Total Pages of the Judgement: 902
Remarks in the Judgement: 
112. Through the 18th Constitutional Amendment, Article 63A has only been amended to the extent that the decision of the party as to how to vote has been conferred upon the Party Head and the matters in which such instructions will apply now includes an Amendment to the Constitution in addition to Money Bill and vote of Confidence or no Confidence ...

113. The shifting of the emphasis from the Parliamentary Leader to the Party Head is in consonance with the ground realities of Pakistani politics which are self-evident and need not be set forth in too much detail.

Constitution Petition No 22 of 2022 (Punjab Assembly Speaker Ruling Case)
Judges in the Bench (3 Judges)
- Justice Umar Ata Bandial (CJP SC - was also on the bench of 2010 Judgement)
- Justice Ijaz ul Ahsan 
- Justice Munib Akhtar 

On the question of whether it should be the Party Head or the Parliamentary Leader who should decide which way the party should vote and on the decision of the FULL COURT (17 Judges) of Supreme Court mentioned above. The 3 member bench has the following remarks

... In that sense, the observations (referring to the observations of the 2010 judgement) even if they had had binding effect would have been per incuriam. In the above situation, the observations in paragraphs 112 and 113 of the judgement are passing remarks not bearing relevance to the matter of vires nor explicating the actual or true words of the Constitution.

Commentary
In one judgement (in 2010) of 17-member full court of SC. The Honorable SC says that the decision to instruct the party to vote is that of the Party Head.
In another judgement (in 2022) 3 judges of the Supreme Court realize that the judgement (remarks) made by the 8 members in 2010 were per incuriam and passing remarks. So are invalid
17 Member Bench of the Supreme Court is a higher forum than the 3 Members Bench of the Supreme Court. Historically, a decision of the lower forum (High Court) could be appealed and reversed only by the Higher Forum (Supreme Court). However, in this instance, a 3-member bench has reversed (called the judgement per incuriam and passing remarks) the judgement of a 17-member bench. This would open the door for even a single-member bench of the Supreme Court or High Court to reverse judgements made by larger benches.
If the decision of the Parliamentary Head is valid and not that of the Party Head, it would mean that the Parliamentary Head in KPK Assembly (CM Mahmood Khan) can decide to go one way irrespective of the decision of the Party Head (Chairman Imran Khan). The decision of the Supreme Court means that Parliamentary Leaders in National and Provincial Assemblies can decide not to follow the instructions of their Party Heads. In other words, in the future, one would only need to bribe the Parliamentary Leader (and not the individual members) to perform horse-trading. 

Perhaps the Supreme Court hasn't clearly looked into all the implications of their decision or maybe they know the implications and just wanted to favour one side for now. Anyways they have set a precedence that smaller benches could nullify previous judgements of larger benches (so may be a single judge would nullify this judgement 6 months (or years) from now). But that would still achieve the outcomes that were desired through this judgement.