The Supreme Court is not so supreme

Daily: Pakistan Today
Date: 30.08.17

(There is something rotten in the state of Denmark)

While addressing the Senate and House of Representatives on December 7, 1903, former
US President Theodore Roosevelt articulated a truism: “No one is above the law”. This is
worthy to toss around, as anyone who is above the law does not have to obey the law. The
saying is the cornerstone of all man-made laws. Nevertheless, the adage is also uniform in
application. It means that no one is above the law including the Supreme Court (SC), even
if it were the SC of Pakistan. There are three main limiting factors delineating the SC.

The first limiting factor for the SC is that it is not a primary law-making body. Instead, the
parliament is the primary law-making body: the parliament does legislation, while the SC is
vested with the task of the interpretation of the law enacted for the sake of its application.
The obverse side of the argument is that it is the application of law which regulates the
validity of the interpretation of law and which, in turn, determines the soundness of the law
itself. The relationship between this cause and effect is cyclic and not linear. The law-
interpreting body may or may not send a feedback to the law-making body to repeal,
amend or substitute a law but the former cannot restrain the latter from taking any course
of action it deems appropriate. Legislation is the process of deliberation and consensus
(done by legislators) and so is the process of repeal, amendment or substitution of the
same legislation. That is, the law-interpreting body cannot arrogate to itself the power or
authority to retain a law: the law-interpreting body cannot declare a law linear or non-cyclic.
The retention or the release of a law is a prerogative of the law-making body on which the
law-interpretation body is dependent for its own function. The same is true for Articles 62
and 63 of the 1973 Constitution of Pakistan. The utility and validity of these Articles have to
be determined by the parliament and not by the SC, as these articles were not a part of the
primal, pristine version of the Constitution.

The second limiting factor for the SC is that the SC depends on the parliament for the
provision of the law to interpret it. In no way does this dependence render the SC superior
to the parliament. One example of this limitation is offered by Article 6 which – through the
words “any person” involved in “abetting” or “collaborating” against the Constitution –
entails an all-inclusive prohibitory sway encompassing the (judges of the) SC, besides the
military. Moreover, the tyranny is that Article 6 delimits the role of the SC by name, by
preventing it from “validating” any “act of high treason.” This is in the background that the
parliament gives birth to the Constitution, as its product, on the principle of cyclicism and
not linearism.  The progenies of the Constitution such as the SC or the military cannot
encroach upon the mother tree, the parliament, by violating the Constitution. In other
words, through Article 6, the Constitution repudiates the availability of any door to both the
SC and the military to creep up on the parliament. This delimiting-cum-shunning ability of
Article 6 relocates both the SC and the military not superior to the Parliament of Pakistan.

The third limiting factor for the SC is that its discretionary powers are subject to the
permission from the parliament. The SC can turn down a law made by the parliament, if the
parliament vests in the SC the power to do so and not otherwise. In this regard, the
privilege taken by the SC in Article 187 (1) needs some elaboration here. Article 187 is
about the “Issue and execution of processes of Supreme Court.” Clause (1) of Article 187
says: “[Subject to clause (2) of Article 175, the] Supreme Court shall have power to issue
such directions, orders or decrees as may be necessary for doing complete justice in any
case or matter pending before it, including an order for the purpose of securing the
attendance of any person or the discovery or production of any document,” whereas Article
175 (2) says: “No court shall have any jurisdiction save as is or may be conferred on it by
the Constitution or by or under any law.” Here, two points are important. First, the scope of
Article 187 (1) is conditional upon the allowance given in Article 175 (2). That is, Article 187
(1) is applicable, if its application is permitted by Article 175 (2), or Article 187 (1) is
subordinate to Article 175 (2). Second, Article 175 (2) is restrictive (and not all-
encompassing) in itself (e.g. in the context of “No court has powers unless conferred upon it
by the Constitution or any law”). That is, the court cannot use any power or authority not
vested in it by the Constitution or law. This point has profound implications for Article 187 of
the Constitution. That is, the “complete justice” concept enshrined in Article 187 (1) is
subject to law, and not as per the will of the judges of the SC.

The limitation preserved in Article 187 (1) read with Article 175 (2), in turn, limits the scope
of Article 184 (3). Article 184 defines the original jurisdiction of the SC. Clause 3 of Article
184 says: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of any of
the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to
make an order of the nature mentioned in the said Article.” That is, the limitation says that
“a question of public importance with reference to the enforcement of any of the
Fundamental Rights” enshrined in the Constitution cannot tread beyond the limits of Article
187 (1) read with Article 175 (2). Hence, it is fallacious to believe that the SC has unfettered
and unlimited powers to do whatever it likes to do.

Sometimes, it seems that the SC understands this limitation. This is precisely the reason
why former Chief Justice of the SC Iftikhar Chaudhry used to bully government officers in
the court and then he would record in his orders that the officers had volunteered / agreed
to carry out whatever he wanted them to do. Interestingly, the SC uses the precedents
created by itself or by subordinate courts to extend its jurisdiction beyond what is given in
the Constitution or law. That is, despite the restriction imposed by Article 175 (2), the SC
has made inroads into the preserve of the parliament through legal precedents and has
consequently hogged more space than otherwise constitutionally or legally available.
Justice Iftikhar Chaudhry set several such examples under the justification of “judicial
activism.” Unfortunately, these were the examples of a judge taking the law into his own
hands.

This lacuna can be filled up if the Supreme Judicial Council (SJC), which was made under
Article 209 meant for the accountability of judges, gets functional. Currently, the SJC is
almost defunct, as the SJC responds to none, answerable to none for its non-
responsiveness and holds no judge accountable, thereby raising the status of the judges
above the law: not anyone who is above the law has to obey the law. This is despite the fact
that Article 209 offers full support to any accused judge against any frivolous complaint or
information through a punishment clause. Currently, Article 209 is a roadblock on the path
of the accountability of judges. This is an important area to do further legislation to let the
public hold the judges accountable for their inefficiency, venality and mendacity, should the
need arise.

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