The Supreme Court’s short order in SMC 1/2022 has completely buried the separation of powers envisaged by the framers in our Constitution. The court disregarded the text of the Constitution and in doing so not only did they assume jurisdiction on the speaker’s ruling, which is otherwise non-justiciable, they also entered into a political question or process, which is inevitably always done with a selective bias and a partisan lens. To make it worse, the court overreached further and directed the Parliament to convene a session on a specific day and time while it reserved the authority to supervise everything.
Our Constitution spells out where other coordinate branches take precedence over the Supreme Court. Article 69, expressly bars the courts from inquiring into the proceedings of Majlis-e-Shoora and commands that the validity of any proceedings shall not be called into question including on grounds of any irregularity of procedure. The wisdom behind this provision is to provide a Constitutional sanctity to the proceedings of the House enabling an independent debate by the members without fear of persecution or prosecution. The courts, therefore, cannot make determination, among other things, on the rulings of the speaker, as they form part of the proceedings of the parliament. Their power of judicial review certainly does not extend to everything under the Sun.
The problem is our superior judiciary, especially the Supreme Court, and its unelected panel of elite jurists, assume themselves to be the people’s Godot, when the Constitution has not sanctioned such a role, least of all in robes, for them. And with the pretext of interpretation, they start carving out exceptions to the rules for the court to assume jurisdiction of a matter even when it is expressly ousted. This tendency to overreach, over a period of time, has had a chilling impact on separation of powers and the original text of the Constitution.
Despite Article 239(5) of the Constitution, for instance, that bars the courts to review the Constitutional amendments, on any ground whatsoever; the 17-Member Bench of the Supreme Court in Rawalpindi District Bar Case validated a fictitious test of “salient features” that now allows the Supreme Court to strike down a Constitutional amendment if such an amendment derogates from the salient features supposedly enshrined in the structure of the Constitution.
Judiciary may have no influence over either the sword or the purse but they have emerged both as a power broker and even a king maker in modern Pakistan. The Supreme Court is indeed today the most dangerous branch for the political rights under the Constitution in Pakistan.
On Article 69, specifically, the Supreme Court in the past has held that it will inquire into parliamentary proceedings if the matter pertains to an administrative order or if it does not fall within the purview of procedural irregularity or on grounds of mala fide, lack of jurisdiction or coram non judice. Readers, can appreciate, the scope of exceptions here have continued to expand not just diluting but in fact erasing the very text of the Constitution. Our judges of course do all of this in public interest and claim to be the final arbiters in this regard.
The judicial review in the Constitution, apart from text of the Constitution, is informed by the principles of restraint and deference towards coordinate branches. In addition, the courts in constitutional democracies do not enter into political questions, policy matters, foreign relations, security issues and nor pass orders that are not executable. These fetters are extremely significant and cannot be brushed aside by the courts– less so in original jurisdiction. The Supreme Court in SMC 1/2022 not only pierced the veil of separation of powers but also turned a blind eye to other constraints developed in the Constitutional jurisprudence.
The only Constitutional moot point in SMC 1/2022 before the court was if the matter was justiciable. When the court itself took a Suo Motu notice, it also prejudiced the line of argument for federation to raise objections on the jurisdiction of the court. Small wonder, there is nothing in the short order to justify the assumption of jurisdiction. The judges would need time to deliberate and dilate on it. Creative judges always find a way; which is why the only restraint on court, at times, is self-restraint.
The Constitution does not envisage Parliament to be subservient to the Supreme Court. If the Parties remained aggrieved of the initial ruling on April 3 – the remedy only lay in the political process and not before the courts. We have seen very quickly the result of the court intervening in a political question. Remember, the final arbiter on political matters are the people and not the courts. The political atmosphere today, more than ever before, thanks to the intervention of the Supreme Court is extremely polarized. Not only could the court not settle the issue, and the “neutral” state apparatus had to get involved, they also undermined the court’s credibility and integrity in the rushed process.
Hamilton in Federalist No.78 had opined “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” In Pakistan, his thesis certainly does not hold true. Judiciary may have no influence over either the sword or the purse but they have emerged both as a power broker and even a king maker in modern Pakistan. The Supreme Court is indeed today the most dangerous branch for the political rights under the Constitution in Pakistan.
