A JUDGE is not a king. While kings may also be judges in monarchies, this is not and cannot be true for democracies. Democracies can’t afford to have kings, much less in the garb of judges. Our Supreme Court has itself held as much in the Irfan Bashircase: “The role of a constitutional judge is different from that of a king, who is free to exert power and pass orders of his choice over his subjects.”
Yet, we see an increasing tendency among them to indulge in collateral proceedings that might appear to have more to do with their personal opinion than the facts (of the cases) at hand.
“No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law” reads Article 175(2) of our Constitution. The judges’ role, in a constitutional democracy, is that of arbiters and not masters. Even the former role is not absolute but is subjected to certain limitations, including that of jurisdiction.
Collateral proceedings distort that role. Indulgence in proceedings or matters not directly before a judge, and which the judge may not even have jurisdiction to preside over, are justifiably frowned upon by some legal experts as going beyond the judiciary’s constitutional role in a democratic dispensation.
A debate, long overdue, was kick-started by the summoning of the IGP with regard to the firing incident on Imran Khan’s long march by the apex court in an unrelated proceeding of contempt against Khan. Reservations surfaced not only among legal quarters but also from within the bench where one honourable judge had “serious jurisdictional reservations”.
The judges’ role, in a constitutional democracy, is that of arbiters and not masters.
Collateral proceedings manifest themselves in different scenarios: one, by giving findings or observations on a matter that has already attained finality.
“Violation of fundamental rights guaranteed under the Constitution have to be protected, but at the same time, it is the duty of the court to ensure that the decisions rendered by the court are not overturned frequently, that too, when challenged collaterally … this court has an extensive power to correct an error or to review its decision but that cannot be done at the cost of doctrine of finality. An issue of law can be overruled later on, but a question of fact … cannot be reopened once it has been finally sealed ... ”, held the Indian supreme court in the Major S.P. Sharma case.
Two, in collateral proceedings, findings or observations are rendered on a matter that has not yet been initiated judicially by the parties concerned, and which may never be so initiated. For example, if an FIR is not registered promptly or it does not arraign the accused persons as a complainant may wish, statutory remedies of a petition to a justice of peace or filing a private complaint are available. A complainant may or may not have recourse to such remedies, according to legal advice.
By passing directions or observations in such a matter, would the Supreme Court not have journeyed into the thicket of collateral proceedings?
Three, in collateral proceedings, findings or observations are made on a matter which is not pending before the court, making such findings or observations which, under the law, fall in the jurisdiction of some other forum.
The Constitution and different statutes have conferred various jurisdictions on different courts and tribunals. Bypassing other valid constitutional and statutory forums by a court, or taking up a matter in its original jurisdiction, instead of waiting for the appellate jurisdiction to materialise in due course of time, is tantamount to adjudicating on a matter which is not before it.
In my humble view, verbal observations or directions to the IGP in Khan’s shooting case with respect to registering of an FIR or with respect to service-related matters of the IGP about his resignation or leaving charge have the characteristics of the latter two categories.
Further, such proceedings divert attention not only from the case at hand but also from the long queue of cases pending adjudication on the regular docket. Other reasons to avoid such proceedings are the risk of political consequences, unwanted media or public attention and avoidable criticism of the judiciary by disgruntled sections which such proceedings may spawn. Collateral proceedings, as a result, inevitably end up causing distortions in the judicial system.
Conversely, it can be argued that the apex court has the power to do complete justice, and to do so it can take up any kind of matter during any kind of proceedings in any kind of lis, though even Article 187, which empowers it to do “complete justice” is qualified by a limitation — valid jurisdiction.
The counter argument may be that the apex court cannot do complete justice outside the conferred jurisdictions or by conflating different jurisdictions. Additionally, power to do complete justice should be interpreted in accordance with the democratic underpinnings of the Constitution, in the context of the extraordinary requirements that a pending case at hand may have, and not in the context of the person or functions of a judge seen to be assuming the role of a king who can do whatever he likes, without any limitations, including exercising jurisdiction when none exists.
The ‘complete justice’ doctrine, therefore, is not a valid justification of collateral proceedings.
To conclude, collateral proceedings can be placed in the same league as suo motu proceedings, verbal directions, judicial overreach, obiter dicta etc — all of which, in the case of the Supreme Court, have a binding effect. In the midst of a political crisis, open invitations to the chief justice of Pakistan or the apex court to interfere in matters which are not or could not be directly brought before the court would be better shrugged off.
One hopes the court comes out of this crisis unscathed, which is possible if it strictly confines itself to the conferred jurisdictions and refrains from overindulgence in collateral proceedings.
The writer is a constitutional and tax lawyer based in Islamabad.
Published in Dawn, December 3rd, 2022