WHETHER it is the case of the National Reconciliation Ordinance, the contract for the supply of liquefied natural gas or the construction of McDonalds in a public park in Islamabad, the proceedings of the Supreme Court of Pakistan have, in recent times, dominated not only national news but also private discussions.

Whilst some have applauded the Supreme Court for its gumption, many others have resented it for its interference in what they consider to be the proper domain of the executive.

This debate is likely to gain a new momentum in the coming days as the Supreme Court hears the challenges against the 18th Amendment. However before casting our lot for or against the Supreme Court, it is important to understand the nature and scope of its powers and to examine them in an international and historical perspective.

According to the 1973 Constitution (regardless of the 18th Amendment) the Supreme Court has two distinct jurisdictions the 'appellate' and the 'original'. In its appellate jurisdiction, the Supreme Court only hears appeals, primarily against judgments of a Pakistani high court. However, in its original jurisdiction, it acts either on the application of an aggrieved party or of its own accord (suo motu), if it is faced with a matter involving a question “of public importance” with reference to the “enforcement of any of the fundamental rights” of the citizens of Pakistan.

The power of the Supreme Court to entertain issues raised in the public interest is not unique to Pakistan. Public interest litigation, as it is now universally recognised, has existed in England and Scotland since the late 18th century when proponents of the anti-slavery movement successfully challenged slavery in both jurisdictions. In modern times, however, the trend for such litigation was set by the judgment of the US Supreme Court in Brown v. Board of Education 347 US 1954 where it held at the behest of certain interested citizens, that segregation by the state, of public school students on the basis of race was unconstitutional.

Since then the US Supreme Court has reshaped national policy on several issues sometimes even in the face of governmental and social outrage as in the 1970s when it legalised abortion (Roe v. Wade 410 US 1973) and more recently when it allowed Guantanamo Bay detainees the right to challenge their detention in US courts (Rasul v. Bush 542 US 2004).

Closer to home, the Indian Supreme Court has encouraged public interest litigation by entertaining matters on issues as diverse as environmental degradation, content or implementation of government policy, failure of municipal authorities to perform their public duty and violation of basic human rights, particularly of the poor.

Also under the umbrella of public interest litigation, the Indian Supreme Court has, in the case of Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225 very pertinently ruled, (by a narrow majority), that parliament's power to amend the constitution is not absolute and that it may not amend the 'basic structure' of the constitution, comprising the principles of democracy, rule of law, secularism, separation of powers and judicial review.

The Indian Supreme Court justifies its policy to promote public interest litigation on the grounds that the Indian population is highly socially unequal and therefore it is incumbent upon the Supreme Court to protect the interests of those who either don't have a voice in the political system or lack the means or information to move the courts.

In Pakistan itself, public interest litigation came to the fore only in the mid-1980s when Gen Zia restored the constitution and along with it the fundamental rights of Pakistanis after a hiatus of more than eight years. It was in this newly liberated atmosphere that Justice Muhammad Afzal Zullah, the then chief justice of Pakistan initiated a public interest case on the basis of a telegram received from bonded labourers working in a brick kiln in Lahore.

This culminated in the leading judgment of Darshan Masih v. The State PLD 1990 SC 513, in which the Supreme Court for the first time specifically directed the executive to provide relief to a disadvantaged section of the public.

Since then the Supreme Court has, in the name of the public, attempted justice in cases as varied as the of gang rape of women in remote areas of Pakistan, the protection of the environment and, most recently, the recovery of missing persons.

It is evident in the international and historical perspective that public interest litigation rather than being an instrument of oppression is an important democratic tool granted to the courts by the constitution itself to ensure, even in the most functional democracies, that the legislature and the executive operate within their constitutional bounds. It is further evident that the power conferred on the courts is not unlimited and may only be exercised when a fundamental right is either violated or is in danger of being violated due to an act or omission of the executive.

Despite these virtues of public interest litigation, the average Pakistani remains wary, if not critical of it. Perhaps he has lived for too long under martial law where his fundamental rights remained suspended; perhaps he is accustomed to an all-powerful executive where fundamental rights though not suspended, become meaningless; perhaps he has not forgotten the not-too-distant past when the judiciary supported even the most outrageous acts of the executive on the grounds of the “doctrine of necessity” and finds it difficult to accept that the judiciary has now arrived at the maturity necessary to exercise its judgment independently and impartially.

Finally, perhaps this person sees in the challenges to the 18th Amendment only a political tug-of-war and fails to grasp the relevance of this matter to his daily existence.

Whatever the misgivings, at this stage, when the executive is in the dock before the Supreme Court, it is up to the Supreme Court to overcome them by ensuring that when it acts in the name of the people it is alive not only to the demands of justice but also its own constitutional limits; by also ensuring that when it examines the legality of the 18th Amendment it does so exclusively on the touchstone of the law rather than political expediency, no matter how urgent.

In a country just embarking on democracy it is ultimately imperative in the long-term interest of the people that the Supreme Court nurtures democratic institutions and maintains rather than dislodges the delicate balance that must exist between the legislature, the executive and the judiciary, for the sustained rule of law.

The writer is a barrister.

amber.darr@gmail.com