Pakistan’s constitution contains provisions to fundamental rights. However, during the tenure of our most recent Supreme Court Chief Justices, Iftikhar Muhammad Chaudhry and Mian Saqib Nisar, the Supreme Court (SC) has used its judicial powers to enforce an unusually broad understanding of “fundamental rights” in areas ordinarily seen as the purview of the legislature and, more specifically, government policy. This has produced significant tension between the judiciary and the legislature (government). The limits of judicial power to define and enforce ‘fundamental rights’ are now a critical topic of debate in Pakistan.
Iftikhar Chaudhry used his court room as a ‘Shakespearean theatre’ to censure different state actors in the public eye. To do this, he interpreted the phrase ‘fundamental rights’ very broadly in the realm of public administration, reaching even as far as the price of sugar. However, he conduced proceedings in his courtroom only.
Saqib Nisar went further. He acted even outside of the courtroom, visiting hospitals, filtration plants, and hearing people who stopped his car. He clearly overreached judicial powers while collecting Dam funds and abolishing tax on phone cards. Instead, he maintained that the superior judiciary did not transgress its constitutional authority. Does this interpretation of ‘constitutional authority’ not violate a constitutional separation or balance-of-powers between the legislature, the executive, and the judiciary?
Both judges apparently stepped into the shoes of the government to address urgent policy issues confronting the society. However, they failed to set their own judicial house in order. The sincerity of their interest in issues beyond the judiciary is not doubted; however, one may question their appreciation for our constitutional separation-of-powers: Should a judge abolish a tax on phone cards or fix the price of sugar as a matter of ‘fundamental rights’? Should a judge collect funds for a public cause? Should a judge inspect hospitals and regulate salaries of doctors?
Currently, there is a very strong sense that the judiciary’s vast definition of ‘fundamental rights’ has traded short-term populism for long-term constitutional imbalance
Due to the increasingly active SC, the balance of power has seemingly tilted too far in the direction of the judiciary. Critics argue that owing to the apparently unlimited power of the SC to enforce fundamental rights, the balance of powers between state institutions has been disturbed. What some see as a proudly “independent” judiciary, others see as an increasingly “unaccountable” court.
Article 184(3) of the Constitution says that, “without prejudice to the provisions of Article 199 [Jurisdiction of High Court for the enforcement of fundamental rights], the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights … is involved, have the power to make an order of the nature mentioned in the said Article”. Even a brief reading of this article establishes an SC mandate to enforce fundamental rights. However, the question remains ‘to what extent’ should the SC go to enforce fundamental rights, and how should we understand the legal meaning of ‘fundamental rights’ (including ‘a right to life’)?
My contention is that while maintaining its appreciation for the enforcement of fundamental rights, the SC must also appreciate our constitutional separation of powers. It would be helpful if the SC could draw a much clearer legal line between the domain of “fundamental rights” and “government policy”. When, exactly, can an appeal to fundamental rights be invoked in relation to flaws or gaps in existing policies? Currently, there is a very strong sense that the judiciary’s vast definition of ‘fundamental rights’ has traded short-term populism for long-term constitutional imbalance.
With a new Chief Justice, the SC should ensure the protection of fundamental rights without interfering in the policy-making powers of the executive. There should, for instance, be a clear link between the text of Articles 8 – 28 and a SC order for the enforcement of fundamental rights. If a constitutional article prohibiting ‘deprivation of life without legal due process’ allows judges to visit hospitals and examine healthcare standards, what is the need of any executive agency for this purpose? Which fundamental rights provisions permit the SC to regulate and decide the policy matters (e.g. commodity prices, educational or health standards)?
Article 9 simply says, “no person shall be deprived of life or liberty save in accordance with [the Government’s] law”. Article 25-A states that “the State shall provide …education to all children of the age of five to sixteen years in such manner as may be determined by law”. The text of these articles suggest that, even if “deprivation of life following legal due process” and “provision of education in accordance with law” are fundamental rights, the delineation of specific laws regarding hospital standards and school fees remain in the domain of government policy.
If the SC fails to ‘regulate’ its powers with reference to the enforcement of fundamental rights and ‘define’ boundaries for the application of ‘fundamental rights’ provisions, this will leave a grey area open–increasing a possibility of conflict and, then, a crisis between institutions. The constitution provides that the Government is responsible for matters of public policy and the SC is responsible for ensuring that our constitutional provisions are met. Our learned Chief Justice is expected to illuminate this balance within a clarified definition of fundamental rights.
The writer is a lawyer can be contacted at [email protected]
Published in Daily Times, February 9th 2019.