April Issue 2018
Is the Supreme Court Acting Within its Constitutional Ambit?
Justice (R) Wajihuddin Ahmed
I do not think that the Supreme Court, at this stage, can be accused of judicial overreach. In fact, the entire constitution is designed to ensure that, wherever required, one or the other limb of the state may correct an erring one, or when there is a total lack of will to fulfil an organ’s constitutional obligations, devise ways and means to fill the vacuum.
All this is to ensure that the requisites of the constitution are met with.
That is the reason why in all written and unwritten constitutions, there is a system of checks and balances. None of the state institutions is supreme. The constitution is.
In the context of Pakistan, the parliament, which is empowered to amend the constitution itself, cannot alter the basic framework of the constitution (though in the Musharraf era, the amending powers of parliament had been extended and they could not be challenged in a court of law). There are inherent powers in a parliamentary system of government, to bridle the executive, which is an instrument of the parliament. Unfortunately, these have not been applied in Pakistan. The court at the apex is armed with residuary powers which are conferred by the constitution. They not only enjoy the powers under Article 199, augmented by their own under Article 184-3, but are further supported by Article 187, which empowers them to do complete justice. All organs of the state are bound to assist the Supreme Court in the performance of its functions. At the end of the day, it is the Supreme Court which has to ensure the implementation of the constitution. Hence, it is rightly called the ‘Guardian of the Constitution.’ While parliament makes the constitution, the Supreme Court has the final power to interpret and implement it.
There is no judicial overreach; at least not in the context of the present day. Should the Supreme Court not intervene when no census has been held in the country for 20 years, when innocents are being killed in contrived encounters, when billions of dollars are being laundered abroad, when the poor populace is deprived even of drinking water, and rivers such as the Ravi are being polluted by untreated sewage of the whole of Lahore?
Justice (R) Muhammad Ather Saeed
At the SAARC Law Conference held in Sri Lanka in December 2017, a renowned Pakistani lawyer in his speech at the seminar, strongly criticised the judges of the Honorable Supreme Court of Pakistan. He accused the Honorable Judges of making their own promotions and fixing their own salaries. He also criticised the decisions and stated that some of the Honorable Judges had taken over the domain of the legislature and were making laws.
I was the only former Judge of the Supreme Court of Pakistan present at the seminar and sought permission to speak from the floor. While clearing the points by the learned speaker, I pointed out to the audience that the judges neither promote themselves nor do they fix their own salaries. The appointment and confirmation of judges is the domain of the Judicial Commission, which comprises a number of government law officials and also members of the Bar Councils. The recommendations made then go to the Parliamentary Committee, comprising parliamentarians, who have the power to approve or reject the recommendations of the Judicial Commission. The salaries are fixed by the government through a Presidential Order.
I further clarified that the judges do not ‘create’ any law but when the lawyers file a petition challenging the vires of any law and the court is convinced that the law is ultra vires of the constitution, they strike it down. Even otherwise, it is a trite law in almost all nations of the world that the Superior Courts have the powers to read down a statute to bring it in conformity with the statute and the constitution of that country.
I will now take up the Panama case and other present actions of the Supreme Court. In the Panama case the court was asked to decide whether the prime minister was “Sadiq and Ameen” in accordance with the provisions of Article 62(1)(f) of the Constitution of Pakistan. Initially the court appointed a Joint Investigation Team (JIT) to investigate the charges, and even after the receipt of the JIT report they sent it to the right forum for further action. Although I may disagree with the merits of the judgment, I am strongly of the opinion that the Court has not committed judicial overreach. They (the SC judges), in their wisdom, were of the view that certain alleged assets were not declared in the statement by the prime minister and hence they reached the conclusion that he was not “Sadiq and Ameen” and therefore disqualified him from holding public office.
As far as the contempt of court cases are concerned, I am of the opinion that on this point the court has been very lenient and has overlooked certain obvious contempts.
The Honorable Chief Justice of the Supreme Court has always had the power to take suo moto actions; none of the suo moto actions taken by the Honorable Chief Justice(s) have been frivolous, but have been taken with the view to ensure justice in all spheres of life.
On the basis of the above, I am of the firm view that the Honorable Supreme Court is wrongly being accused of judicial overreach.
Justice (R) Shaiq Usmani
Essentially, the judiciary is required to decide disputes between individuals, between the provinces of the country, and also to assist the citizens of the country whenever they have an issue with the government on any subject. The task of the judiciary is to interpret the laws and the constitution.
Now as far as the government is concerned, the democratic polity is concerned, there is the concept of separation of powers. Firstly, there is legislature that makes the laws, and then the judiciary interprets the laws and also resolves disputes between individuals, provinces, citizens and the state, whereas the executive governs.
In a parliamentary form of government, there is no strict sense of separation. It is the members of the parliament or cabinet that govern and there is an intermingling of the executive and the legislature. In the presidential form of government, there is a complete separation of powers. We opted for parliamentary democracy so we subscribe to the same concept as is prevailing in England. Parliamentary democracy continues in India till today. Our democracy was derailed by various incursions from the armed forces, who then brought in presidential forms of government. Because of this anomaly, we found that none of the institutions could really work or develop or evolve properly and lead to a system where things would get done properly as in England and India.
The result was that there were problems as far as the common man was concerned; he had nowhere to go. Approaching the judiciary was always very difficult. The judiciary was very much under the executive.
For the common man, the judiciary was alien. This is how the situation continued until 10 years ago, when democracy returned to Pakistan – continuous so-called democracy – for 10 years. The aspirations of the people were considerably heightened. Where do they go? In between, before these 10 years, when General (R) Musharraf was there, there was this so-called lawyers’ movement which made the judiciary independent and powerful and, consequently, it took on more than it was supposed to do, and started taking suo motu notices and involving itself in incidents concerning injustices meted out to the common man. People realised there was yet another forum which they could involve – if they invited their attention: the judiciary. So the judiciary started doing what in common law it would not do.
As time went by, the interference increased and that is when this concept or impression of the judiciary overreaching itself grew. The present Chief Justice has certainly pushed the judiciary into the limelight, particularly in the last few months.
Should the judiciary do this or not is the whole issue. There is no doubt that what they are doing is that they are giving the impression of some justice being dispensed to the common man. But this comes at a price: the judiciary is not concentrating on its primary function, which is to decide the cases of individuals. Cases in Pakistan go on for years and years and if they are not decided promptly, the population, in general, would suffer and frustration would grow. Personally, I would say that this is the primary function of the judiciary. We will have a better and more just society, if we were to leave the task of day-to-day governance issues to the executive.
Justice (R) Rasheed A. Razvi
In the constitutions of South Asian countries like India, Sri Lanka and Bangladesh, there are always provisions para-metaria to Article 184(3) of our Constitution. The moot question is that under what circumstances is such original jurisdiction, popularly known as suo moto, to be exercised by the Supreme Court?
According to our Constitution, it can be invoked when there is a question of public importance, with reference to the enforcement of fundamental rights. There are several instances where the public at large has appreciated intervention by the courts, yet decisions have still been debated amongst the legal fraternity and civil society, regarding the exceeding of such jurisdiction.
Long periods of military rule and negligence on the part of civilian governments, have left the space open for the judiciary to encroach upon their territory, in matters such as that of potable water and the consumption of adulterated milk by minors, for instance. Yet inaction or negligence on the part of the government would not necessarily permit the courts to interfere in other matters of state.
Another inaction on the part of civilian government was its inability to limit or redefine the provisions of Article 184(3) of the Constitution. The matter was discussed during the formation of recommendations while considering the 18th Amendment. In short, it can be said that the current judicial activism has raised a strong reaction and protest amongst the public at large. In the present scenario, this issue has re-emerged with full force, particularly after the Panamagate ruling. The delaying tactics of the Federal Board of Revenue (FBR), the Anti-Corruption Establishment and the National Accountability Bureau, created a situation whereafter the Supreme Court intervened. But this jurisdiction is causing a delay in the disposal of regular cases.
The time is right for the legislature, irrespective of the fissures that exist within it, to sit and discuss the matter with the legal fraternity as well as civil society and come up with a way of streamlining this jurisdiction – to afford the right of appeal and to classify the circumstances under which a particular court can interfere in matters of government, for the enforcement of the fundamental rights of citizens at large.
Justice (R) Irfan Qadir
I genuinely feel that ever since the restoration of Iftikhar Chaudhry, many decisions of the Supreme Court are not only in violation of our Constitution, but of the code of conduct for the judges as prescribed by the constitution.
Justice Chaudhry’s restoration was the result of an executive order, since there was no consensus in parliament to restore him legally, either through legislation or a constitutional amendment. This restoration was the result of a so-called Long March, which led General Kayani to intervene and ask the government to appoint/restore Iftikhar Chaudhry as the Chief Justice of Pakistan. This abrupt and hasty restoration in these circumstances was unlawful, especially when the chief of the army staff has no role, under the constitution, in this regard.
Justice Chaudhry proceeded to appoint 13 more judges to the Supreme Court, and as a result of these fresh appointments, the total number of judges went up to 29. He then constituted a 14-member bench (which included himself), and committed a grave injustice by uprooting the majority of the judges of the apex court through a judgment delivered by the newly appointed judges. A judge of the superior court can only be removed through proceedings under Article 209. This course was not adopted. As such, not only were the majority of Supreme Court judges ousted, but the entire superior judiciary of the country was uprooted.
Most judges that were removed had taken oath under the constitution and were appointed by a democratically-elected government, while the judges who rendered the judgment were all PCO judges, including Justice Chaudhry. These PCO judges, who had once accused General Musharraf of committing treason by removing the Superior Court judges in a manner not countenanced by article 209 of the constitution, were now acting beyond the realm of their jurisdiction themselves.
As for the current judiciary, there are three cases in which it has, arguably, overstepped its mandate: the Panama case, the Jahangir Khan Tareen case and the Imran Khan case.
The mandate to disqualify a parliamentarian rests solely with the Election Commission of Pakistan (ECP). These judges overstretched articles 184(3) and 187 and, that too, in violation of Clause 2 of article 175. These three judgments were not according to the letter and spirit of our constitution. The constitution has not assigned the judges any role to effect disqualification of parliamentarians.
The present chief justice also continues to impinge upon the domain of the executive at a time when his own institution, the judiciary, is in bad shape. People avoid litigation due to the fact that it takes years and years to get a decision. The chief justice is not mandated, under the constitution, to perform the executive’s job.
Hina Jilani is an advocate of the Supreme Court of Pakistan
The Supreme Court (SC) has the power, under Article 184 (3), to assume jurisdiction over any matter when it considers that a question of public importance for the enforcement of any of the fundamental rights is involved. It is this article that gives room for judicial activism to the apex court. The Supreme Court’s interventions to ensure that these rights are, in fact, realised either by an individual or a class of persons or generally by people at risk of a violation by any omission or commission on the part of the executive would always be justified.
Judicial activism by the apex court, however, can be beneficial only if it is exercised with a clear understanding of the limits of its domain. Pakistan’s Constitution does not use the phrase “public good” nor does the responsibility for enforcement of fundamental rights extend to supervision of the quality of governance by the judiciary. Judicial interventions that infringe on the domain of other organs of the state will not bring sustainable results. Such interventions are particularly harmful for the credibility of judicial activism when the decisions smack of selectivity and political meddling, which has been the case in some recent cases brought before the Supreme Court.
The judiciary taking over their role and functions will not correct lack of performance by other organs of the state. Lessons have to be learnt from past experiences in Pakistan and elsewhere, when overreach of jurisdiction by courts without any regard for the principle of separation of powers has had a negative impact on the stability of democracy.