Daily Times

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 January 19, 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 February 20, 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 March 9, 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.

It is not the SC, but the parliament which inherits the status of a primary law-making body, whereas the SC is tasked with the interpretation of the constitution

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 (ie 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 of the parliament. Collectively, this is how the parliament establishes its undisputed constitutive and legislative sovereignty (or supremacy) over the SC.

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 the 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.

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.

Fourth: the SC can rule over the domain protected by the fundamental rights. In this regard, Article 184(3) talks 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 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 needs to stay within its limits, with or without restoring to judicial activism.

The writer is a freelance columnist and can be reached at qaisarrashid@yahoo.com

Published in Daily Times, March 21^st 2018.