Governance and rule of law
By: Safdar Javaid Syed
In the 4th Century B.C., when Aristotle penned his famous Politics, he synthesised two ideals: i) a government derives its powers from the consent of those governed, and ii) those powers must be subject to prescribed limitations. These twin doctrines have survived in political thought since then. The doctrine of popular consent, since its emergence, never stipulated a government without checks.
The great English legalist of the 17th Century, Sir Edward Coke, maintained that even popular government must be confined within prescribed limits by the rule of law. However, Britain simultaneously (and gradually) nurtured the doctrine of the supremacy of Parliament and by the 18th Century this concept became firmly established.
Pakistan’s current environment in terms of the “trichotomy of state power” necessitates a re-visit to these long established rules of governance; particularly in the backdrop of some recent comments made by our Chief Justice. On 7 July, in a speech in Karachi, the Chief Justice is reported to have said: “Even in the United Kingdom, which follows the principle of parliamentary sovereignty, the highest court has also declared that the doctrine of supremacy of the parliament can now be seen to be out of place in this modern era.” Earlier, while addressing a delegation of the mock Youth Parliament on 22 June, he observed: “The judicial institution of the state with the Supreme Court as the final arbiter acts as the ultimate protector of citizens’ rights and upholder of constitutional supremacy. The Supreme Court enjoys original, appellate and advisory jurisdiction.”
Earlier, on 11 May, 2012, as reported in the national print media, while hearing the case of missing persons of Balochistan the Chief Justice had observed: “No institution is bigger than the Supreme Court.”
As these are public observations, an analysis in terms of political thought and constitutional history will not be out of place. The first question which needs to be flagged is; what factors necessitate such public comments from the Chief Justice of Pakistan?
So far, as repugnancy of laws to Islamic injunctions, fundamental rights or the Constitution, these are all well-established constitutional principles. The text of Articles 8, 203-D and 227 is explicit. The principle of nullity of a law being ultra vires the Constitution is also non-controversial. However, do the original, the appellate and advisory jurisdictions of the Supreme Court lend it supremacy (or sovereignty) over the Parliament? If so, how and to what an extent?
Article 175 (1) of our Constitution states: “There shall be a Supreme Court of Pakistan, a High Court for each Province [and a High Court for the Islamabad Capital Territory] and such other courts as may be established by law.” Article 175 (2) provides: “No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.”
As per text of the Constitution, the original, appellate and advisory jurisdictions of the Supreme Court have prescribed limits. Article 184 (1) states that the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between any two or more Governments (disputes involving any non-Government entity are excluded).
Article 184 (2) binds the Supreme Court further; the court can “pronounce declaratory judgments only” (in disputes between governments). Article 184 (3) is also specific in its text; original jurisdiction exists only if the Supreme Court considers that a question of public importance is involved with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution. A legal question, thus, arises; can the Supreme Court invoke its original jurisdiction regarding the contents of the remaining 10 Parts of the Constitution i.e. Part III to Part XII?
The appellate jurisdiction of the Supreme Court is given in Article 185 (1) (2) (3), Article 203-F (1) (2-A), Article 212 (3), etc. which mention its boundaries. It can be safely (and legally) presumed that the Supreme Court cannot take onto itself any appellate jurisdiction which is not specified in the Constitution or in any other Law of Pakistan. So far, as the Advisory jurisdiction, Article 186 (1) states that only the President can refer a question of law to the Supreme Court.
The Supreme Court, being the apex Court, is itself subject to the Constitution and the rule of law. Even as the final interpreter of the Constitution, an apex court cannot be visualized without jurisdictional limits.
We find our country at a very critical junction in terms of trichotomy of State institutions. There is a growing impression that these institutions are, perhaps, moving towards a confrontation. These days one tries to remember a great Chief Justice that America had from 1801 to 1835; Mr. Justice John Marshall, who gave the cause of nationalism powerful impetus through his decisions. In the famous case of McCulloch V. Maryland (1819) Justice Marshall constitutionally settled the question of the enumerated powers of American Congress and, in doing so, he practically rejected the “strict constructionist” view of Thomas Jefferson. Justice Marshall held that American Congress was licensed to enact any legislation which was “convenient and appropriate” to carry out its delegated authority. His ruling still holds ground in his country.
The doctrine of judicial review is non-controversial. The judiciary, and ultimately the Supreme Court, must have power to determine whether a law passed by the Parliament or an act performed by the Executive is in conformity with the Constitution. But should this power be without limits? All over the world, the term “judicial activism” co-exists alongwith the term “judicial restraint”. Why?
Talking of supremacy and sovereignty, power belongs to Almighty Allah alone. The authority to be exercised on earth is a sacred trust and is exercised by the people through their elected representatives. That is the origin of the phrase “we the people.” No written constitution of any country has a preamble which states: “we the Judges give this Constitution to our country.” The preamble to Pakistan’s Constitution declares: “……… And whereas it is the will of the people of Pakistan to establish an order ……… Now, therefore, we, the people of Pakistan, ……. do hereby, through our elected representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution.”
In United Kingdom, their present Supreme Court with twelve professional Judges (a successor to “12 Law Lords” of House of Lords) has come into being through a law of Parliament; “The Constitutional Reforms Act, 2005.” Section 33 of this Act can be of interest for so many and is reproduced verbatim: “Section 33. Tenure. A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament.”
State institutions should not be fighting for supremacy. The people of Pakistan should be recognised as the supreme body and their will and voice should be sovereign! Our beloved country came into being in 1947. By 1971 we lost half of it. Now, 41 years down the history lane, are threats to the existence of Pakistan abated? Perhaps all the three State Institutions need to undergo an introspection and make national cohesion and promotion of rule of law their avowed objective. We all must remember the famous question once posed by President Abraham Lincoln of America: what is to happen if a choice must be made between preserving the Constitution on the one hand and preserving the nation on the other?