THE Supreme Court’s (SC) decision to entertain Mian Nawaz Sharif’s petition under Article 184(3) of the constitution has been criticised by Ms Asma Jahangir. In turn she has herself been subjected to criticism for her comments.
Some of her comments such as referring to the SC as the establishment’s court can be rejected as hyperbole. This court is not a proxy for the establishment. There is, however, some force in her argument about the assumption of jurisdiction by the court in this case under Article 184(3). The SC is primarily an appellate court. There are four exceptions where it exercises original jurisdiction.
Article 186 confers advisory jurisdiction whereby the court gives its opinion to the president on a reference filed by him on any question of law of public importance. Article 184(1) confers power on the SC to pronounce declaratory judgments in any dispute between or amongst the federal and/or the provincial governments. Article 184(3) provides that if the SC considers that a question of public importance with reference to the enforcement of any of the fundamental rights is involved, it can make an order in the nature mentioned in Article 199.
This jurisdiction can be exercised by the court on a petition by any person or suo motu by the court itself. The last exception to the appellate jurisdiction lies in cases of contempt.
Article 184(3) confers formidable power on the SC and its judicious exercise could create an environment highly conducive for the qualitative improvement of the lives of citizens. The SC has given a robust interpretation to this provision in order to protect and promote the fundamental rights and welfare of the public at large.
From bonded labour to environmental issues, from illegal appointments in public offices to corruption in public institutions, from gang rapes to missing persons, the court has vigorously intervened in defence of the rights and liberties of the citizens.
The underlying principle has been the enforcement of fundamental rights which is a precondition for invoking this provision.
There is a sound rationale for conferring this power on the court as persistent violations of fundamental rights affecting public at large must be redressed promptly lest they create civil strife. This is a powerful safety valve.
Since this is an extraordinary power, its exercise requires judicial statesmanship otherwise it may disturb the underlying constitutional balance between different organs of state. The constitution creates a trichotomy of power vesting legislative power in parliament, the executive power in the government and the judicial power in the judiciary.
The constitutional scheme is upset when one organ of the state fails to fulfil its obligations or exceeds its limits. This breeds conflict between organs which cannot be conducive for any democratic polity let alone a country such as ours which is eternally prone to extra constitutional remedies.
It is our tragedy that we have evolved as a national security state and failed to develop as a liberal democracy which measures its strength by the quality of the lives of its citizens and not its security establishment.
As a result we have an overbearing and increasingly unaffordable security establishment which has subjugated the society to its self-serving doctrines and interests. The result is chronic poverty and a highly polarised and fractious society suffering from deep scars and fissures.
It is in the context of this narrative that we need to examine Ms Jahangir’s contention that this case involved no enforcement of any fundamental right and the court has virtually subordinated fundamental rights to perceived national security concerns. In its short order, the SC invoked fundamental rights under Articles 9, 14 and 19A to entertain the petition.
Article 9 provides that no person shall be deprived of life or liberty save in accordance with the law. Article 14 protects the dignity of man and privacy of home and prohibits torture for extracting evidence while Article 19A confers the right to access to information in matters of public importance subject to regulation and reasonable restrictions imposed by the law.
The court has only passed a short order and a critical analysis of the case must await detailed reasons. However, some tentative observations may be made.
It is true that fundamental rights must be given a liberal and the widest possible interpretation. But did this case really involve violation of any fundamental right? With profound respect, reference to Articles 9 and 14 in the present context seems tenuous. As to Article 19A, though this is a potentially relevant article, what the petitioner wants here is not access to information but an investigation of highly contentious facts relating to alleged breach of national security. And who will define national security?
If another petition is filed relating to the responsibility of our security establishment on Osama bin Laden’s long presence in Pakistan or the free flight of US forces on our territory to kill him or the failure to protect valuable aircraft at a naval base, would the court be in a position to entertain this petition, appoint a judicial commission to determine facts and then punish those responsible?
There are certain politically charged issues which are better resolved through processes other than the judiciary. The US Supreme Court has evolved the doctrine of political questions to avoid entering a political thicket which presents inherently non-justiciable issues. In the leading case of Baker vs Carr, the court asked whether the constitutional provision which the litigant invoked could be successfully translated into judicially enforceable rights.
The present case requires deeper reflection on limitations inherent in judicial processes and the overall impact which such a precedent has the potential to create.
The write is an advocate of the Supreme Court of Pakistan.