by Babar Sattar
Founding Partner, AJURIS Advocates & Corporate Consultants
As constitutional principles are designed not for a given era but for the vicissitudes of time, the need for establishing the right rule in matters of constitutional interpretation cannot be overstated. Now that the Supreme Court is seized of challenges to the 18th Constitution Amendment and will determine (a) whether it has the authority to strike down a constitutional amendment and (b) if so, whether the 18th Constitution Amendment introduces changes into the Constitution that call for such judicial intervention, one wishes, as a citizen of Pakistan and a student of constitutional law, that the court address certain fundamental questions that will help elucidate the doctrines of constitutionalism, democracy and limited power authored by it in the recent PCO Judgment and the NRO Judgment.
One, if the Supreme Court adheres to its doctrine of limited power whereby the Constitution is the source of all authority and all institutions and individuals must exercise authority within the limits prescribed by the Constitution, can it rely on any legal principles or arguments while undertaking constitutional interpretation that require it to disregard ordinary meaning of provisions of the Constitution? The superior courts of Pakistan have traditionally disregarded provisions of law that limit their jurisdiction (commonly referred to as ‘ouster’ clauses). It is understandable if in doing so courts are relying on the text of the Constitution that gives them wider jurisdiction than that prescribed under statutory law. But can courts disregard restraint on their competence to adjudicate certain matters when the Constitution itself applies such restraint?
Two, if Article 239(5) says that "no amendment of the Constitution shall be called in question in any court on any ground whatsoever" and Article 239(6) says that "for the removal of doubt it is hereby declared that there is no limitation whatever on the power of parliament to amend the Constitution," can the Supreme Court author a theory of implied limitation of powers which basically states that when the Constitution explicitly limits the jurisdiction of the courts it does not really mean that, and when it provides that the constitution amending authority of parliament is unlimited, it again doesn't really mean that?
Three, can the court disregard the explicit words of a constitutional provision on the basis that they were inserted into the Constitution by a dictator and are consequently not worthy of allegiance? Thus, can sub-clause (5) and (6) of Article 239 stated above be disregarded for being inserted into the Constitution by General Ziaul Haq? But in doing so can it also proclaim judicial independence to be foundational principle or salient feature of the Constitution on the basis of language included in Article 2A, which was also included into the Constitution by General Ziaul Haq through the same amendment that introduced sub-clauses (5) and (6) into Article 239?
Four, are there any circumstances in which the court can ignore certain provisions of the Constitution or declare them to be less weighty than other provisions as opposed to following the ‘golden rule’ of interpretation and interpreting seemingly competing provisions of the Constitution in a manner that they seem integrated? If the text of the Constitution does not state itself that provisions of our fundamental law are arranged in a certain hierarchical order, can judges deciphering the meaning of words written in the Constitution determine that in fact certain provisions are more important than others and are to be deemed as salient features of the Constitution?
Five, do judges comprising the apex court believe that they are a court of law functioning in accordance with the mandate of the Constitution or are they members of a court of justice that requires them to do what they deem is right as wise men even if that means travelling beyond the provisions of the Constitution? "This is a court of law, young man, not a court of justice," Oliver Wendell Holmes, Jr., had famously remarked once. Do our judges believe that they are obliged to travel beyond the scope of law and do what they think is right if strict application of the law does not seem to mete out justice in their estimation? Is propagation of a basic feature doctrine any different from a doctrine of necessity in the sense that both theories are judicial inventions not backed by text of the Constitution?
In the NRO ruling, Justice Jawwad Khwaja had succinctly noted that, "the court, while exercising the judicial function entrusted to it by the Constitution, is constrained by the Constitution and must therefore perform its duty in accordance with the dictates of the Constitution and the laws made thereunder. If the court veers from this course charted for it and attempts to become the arbiter of what is good or bad for the people, it will inevitably enter the minefield of doctrines such as the law of necessity, with the same disastrous consequences. The proverbial expression asserts that decisions as to what is good or bad for the people must be left to the elected representatives of the people, subject only to the limits imposed by the Constitution. Do these cautionary words still hold true? Is the court competent to engage in a discussion of whether the 18th Constitution Amendment or any part of it is desirable or not, good or bad?
Six, in propounding a basic structure doctrine, can the Supreme Court rely on precedents from Indian courts that are in conflict with established precedents of our own courts? Are judicial precedents of superior courts binding in this country as law because our legal institutions have an historic affiliation with the common law tradition or are they binding because Articles 189 and 201 of the Constitution state that decisions of the Supreme Court and the High Court shall be binding? On what legal basis are Indian court precedents that interpret a different document i.e. the Indian Constitution, in a different socio-cultural and political context cited as authoritative sources of law by our superior courts?
It might be understandable for a court to use a foreign precedent as food for thought when faced with a difficult question of law with no local guidance available. But can it be used as an authoritative precedent? India's basic structure theory, an extremely controversial doctrine even in India, was propounded to hold that parliament could not override fundamental rights in giving effect to principles of policy enshrined in the Indian Constitution. Can our Supreme Court endorse such foreign ruling as persuasive source of law, after consistently rejecting it for almost four decades, especially in a situation where cynics could describe the alleged problem with the 18th Constitution Amendment as a turf war between the judiciary and parliament? Is there ever a conflict of interest if members of an institution are perceived to be acting to further some 'collective' institutional cause as opposed any personal interest?
Seven, is the Supreme Court a people's court? What does being a people's court entail? If a court addresses people's problems within the confines of law, which is exactly its job, would it not be a court of law? Can a constitutional court be anything other than a court of law? If black letter of the law is not the sole guiding authority for judges, what else is? Ethics? Morality? Peer pressure? Personal preferences? Public opinion? Foreign precedents? Has the Constitution given judges the mandate to find answers to social, political and legal problems as ordinary intelligent persons reflecting the will of the people, as they understand it, or as state officials interpreting and implementing the will of the people as enshrined in the Constitution and the law?
And finally, does the Supreme Court believe it is obliged under the Constitution to save the state, the society and the 'system'? Is it for judges to determine what the values of the society are and further what they should be on all sorts of issues?
The author is an Islamabad based lawyer and the founding partner of the law firm AJURIS Advocates & Corporate Consultants. He has a BA in Jurisprudence from Oxford University where he studied as a Rhodes Scholar, and an LLM from Harvard Law School. He has been a visiting faculty member at LUMS and Quaid-e-Azam University. Comments may be directed to firstname.lastname@example.org.
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