ISLAMABAD: The Supreme Court on Saturday held that a constitutional judge could not issue directives which did not draw legitimacy from the Constitution, unlike a king who could pass any order of his choice.

“When judges uncontrollably tread the path of judicial overreach, they lo­wer public image of the judiciary and weaken public trust reposed in the judicial institution. In doing so, such judges violate their oath and turn a blind eye to their constitutional role,” observed Justice Syed Mansoor Ali Shah in a five-page judgement he authored.

He stated that constitutional democracy leaned on rule of law, supremacy of the Constitution, independence of the judiciary and separation of powers.

Justice Shah warned that any order not anchored in law and which did not draw legitimacy from the Constitution shook foundations of democracy and unnerved other branches of the government.

Justice Shah was a member of a three-judge Supreme Court bench, also consisting of Justice Manzoor Ahmad Malik and Justice Amin-u-Din Khan, which had taken up an appeal filed by Mian Irfan Bashir against the Jan 24, 2019 Lahore High Court directives.

Holds that high court doesn’t have suo motu powers under constitution

While hearing a case relating to removal of signboards and advertisements from Mall Road, Lahore, the then judge of the LHC, Justice Ali Akbar Qureshi, on a suo motu notice had on Dec 20, 2018 during a chamber hearing ordered petrol pumps in Punjab not to provide petrol to the motorcyclists who were not wearing helmets with the warning that a petrol pump flouting the order would be sealed and heavy fine would be imposed on its owner.

The order was challenged before a division bench of the high court which dismissed the appeal on Jan 24, 2019 with an observation that the directive given by the judge in chambers was not unlawful, rather it was in accordance with the law as every person riding a motorbike was required by law to wear a helmet.

While deciding the appeal in the Supreme Court, Justice Shah observed that having taken an oath to preserve, protect and defend the Constitution, a constitutional judge could not be forgetful of the fact that he himself was first and foremost subject to the Constitution and the law.

He observed that judicial overreach took place when the judiciary started interfering with proper functioning of the legislative or executive organs of the government.

Justice Shah explained that a dispute before the high court must exist for it to exercise judicial power. It is an essential prerequisite before invoking the constitutional jurisdiction of the high court under Article 199 of the Constitution that an application of the aggrieved party must be before the court, since the high court does not enjoy suo motu jurisdiction under Article 199 of the Constitution.

In the present case, the judgement said, the directives against the motorcyclists who did not wear helmets and petrol pump owners was a suo motu exercise of judicial power not available to the high court under the Constitution.

According to the judgement, judicial overreach is uncharacteristic of the role of the judiciary envisaged under the Constitution and most undesirable in a constitutional democracy. Such overreach also amounts to transgression as it transforms the judicial role of adjudication and interpretation of law into that of judicial legislation or judicial policymaking. This also amounts to encroaching upon the functions of other branches of the government and disregarding the fine line of separation of powers, upon which is pillared the very construct of constitutional democracy.

Such judicial leap in the dark was also known as “judicial adventurism” or “judicial imperialism”, Justice Shah observed, adding that judges should rem­ain within the confines of the dispute brought before them and decide the matter by remaining within the con­fines of the law and the Constitution.

In the present case, the order passed by the high court had no law or executive policy behind it. It was a clear example of judicial legislation and thus judicial overreach when the high court was not vested with any such jurisdiction under the Constitution, Justice Shah regretted. The directive issued by the high court by barring motorcyclists without a helmet from purchasing petrol loses sight of fundamental rights guaranteed to petrol pump owners and the motorcyclists under the Constitution. Thus these directives deprive petrol pump owners of their business guaranteed under Article 18 of the Constitution and the motorcyclists of their right to mobility and right to livelihood guaranteed under Article 9 of the Constitution.

The high court, in its desire to make Mall Road, Lahore, an iconic thoroughfare, overstepped its jurisdiction, forgetting that a judge was bound by the Constitution and the law, Justice Shah observed while setting aside the high court order.

Published in Dawn, March 7th, 2021