Baba Rehmatay's Judiciary

Daily: Daily Times
Date: 21.03.18

Parliament is supreme. This stance offers a major challenge to parliament’s two
competitors, the army and the judiciary – a case comprehensively dealt with in Article 6 of
the 1973 Constitution of Pakistan. Since the beginning of this year, one can notice an effort
launched by the higher judiciary to belittle the parliament under one ruse or the other.

On 19 January, heading a three-member bench hearing a suo moto case on the dried-up
Katas Raj pond, Chief Justice Mian Saqib Nisar said that the parliament was supreme (“We
heard the other day people were condemning the parliament, but for us it is supreme”).
However, on 20 February, while heading a three-member bench hearing a case on the
media commission, Justice Nisar recanted his words and declared the constitution above
the parliament (“Parliament is supreme but there is also the Constitution above it”). The
shift in stance was ominous. On 9 March, while heading a bench hearing the suo-moto
notice case (related to a fee hike for admission into medical colleges) at the Supreme Court
(SC) Lahore registry, Justice Nisar assumed the title of
Rehmatay Baba, an oldie
concerned with the welfare of people. This was how a corridor was created to reach out to
people to offer a parallel narrative of the people’s judiciary. This opinion piece will attempt
to bust four myths related to the power of the SC vis-à-vis the parliament.

Myth First, the SC has a legal edge over the parliament. In this regard, there are four
limiting factors. First, the parliament (i.e. the constituent assembly) is born delineating its
itinerary and goal through its product which may be an unwritten or a written constitution.
The product in turn produces the SC down the line. Second, not the SC but the parliament
(i.e. the legislative assembly) inherits the status of a primary law-making body, whereas the
SC is tasked with the interpretation of the constitution. Third, the SC cannot create a law to
interpret it. Instead, the SC is dependent on the parliament for the provision of law to
interpret it, though the SC is permitted to fill in gaps in a given law, if not objected by the
parliament. Fourth, the powers of the SC are neither spontaneous nor regenerating.
Instead, these are subject to the permission from the parliament. Collectively, this is how
the parliament establishes its undisputed constitutive and legislative sovereignty (or
supremacy) over the SC.

Myth Second: the SC enjoys certain unfettered and unlimited powers of action. In
this regard, Article 187 dilates on the “Issue and execution of processes of Supreme Court.”
Article 187 (1) 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.”
However, 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 under Article 175
(2). That is, Article 187 (1) is applicable, if its application is permitted by Article 175 (2).
Second, Article 175 (2) is restrictive (and not all-encompassing) in nature (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. This is how the
“complete justice” concept enshrined in Article 187 (1) is rendered subject to law, and not
as per the will of the judges of the SC.

Myth Third: the SC can go to any extent in the name of enforcing the Fundamental
Rights under Article 184 (3).
In this regard, the limitation conserved in Article 187 (1)
read with Article 175 (2) limits the scope of Article 184 (3), which otherwise 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).
This is how the power of the SC to invoke Article 184 (3) under any ruse is limited.

Myth Fourth: the SC can rule over the domain protected by the Fundamental
Rights.
In this regard, Article 184 (3) talk about the “enforcement of any of the
Fundamental Rights” (as mentioned earlier). However, the preamble to the Constitution of
the Islamic Republic of Pakistan, 1973 provides that “sovereignty over the entire Universe
belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan
within the limits prescribed by Him is a sacred trust …wherein shall be guaranteed
fundamental rights, including …equality of status, of opportunity and before law, social
economic and political justice, and freedom of thought, expression, belief, faith, worship and
association, subject to law and public morality.” That is, whereas Article 184 (3) leaves it to
the discretion of the SC whether or not to enforce given fundamental rights, the preamble
of the Constitution guarantees all citizens the enforcement of their fundamental rights
unavoidably and undeniably. In other words, the fundamental rights are defined by the
people through the parliament, enshrined in the constitution, and not by the courts. The
courts are there just to interpret or enforce the fundamental rights. This is how the SC
cannot rule over the domain protected by the fundamental rights of people: the SC cannot
deny fundamental rights of a citizen. This point has a strong bearing on Article 209, which
pertains to the accountability of the higher judiciary.

In short, parliament is supreme. Instead of poking its nose into the domain of the
parliament,
Baba Rehmatay’s judiciary need to stay within its limits, with or without restoring
to judicial activism.

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