The Supreme Court (SC) has commenced regular hearing of nine constitutional petitions seeking its indulgence to constitute a commission to investigate into the memo allegedly communicated to Admiral Mike Mullen on behalf of a senior Washington-based Pakistani diplomat, who was acting on behalf of his “boss”. The petitioners include the leader of the second largest party in Parliament, Mian Mohammad Nawaz Sharif, along with other PML-N leaders.

The federation and Ambassador Hussain Haqqani have taken serious objection to the jurisdiction of the Supreme Court as it neither involved an issue of public importance, nor did it raise the enforcement of petitioner’s fundamental right, and, therefore, the petitions were liable to be dismissed on the short question of “maintainability”.

It is not for the first time that the federal government has challenged the apex court’s jurisdiction in such matters. In the last nearly four years that the government has been in office, the Supreme Court initiated proceedings in a number of major cases on its own under its original jurisdiction conferred by the Constitution under Article 184(3). The government has almost in every such case raised serious objections to suo moto exercise, and this has invariably been termed as interference in the normal working of the executive branch violating the theory of separation of powers. The argument is often stretched enough to cover even the cases of corruption and where there are allegations of loot and plunder of public exchequer in which the government has remained totally inert.

The legal argument for exercising suo moto or its original jurisdiction is simple. The Supreme Court has been expressly empowered under Article 184(3) of the Constitution to take such action for the enforcement of any of the fundamental rights conferred by Chapter-I, Part-II. The self-evidently lucid Article of the Constitution establishes mere permissibility of suo moto action invoking its original jurisdiction by the Supreme Court. It is significant to notice that it establishes permissibility and does not mandate or make it obligatory for the court to do so in specific cases. But the question of exercise of such power for the enforcement of fundamental rights coupled with its public importance is left to the good conscience of the court to determine, keeping in view the jurisdictional facts of each such case. These rights must be one of those rights that are couched explicitly in the Constitution; hence, the court can choose not to take any suo moto notice of a case not fulfilling the criteria.

The Latin term suo moto literally means “on its own motion” and is approximately equivalent to the term sua sponte that means “of his, her, its or their own accord”, describing an act of authority taken without formal prompting from another party. Hence, the logical and semantic absurdity of demanding suo moto action should be obvious in a modern-day legal system. But at the same time, the exercise of it by the honourable judges has significantly a more fundamental and qualitative aspect. The mechanism of suo moto notice enables the Supreme Court to filter down benefits of the constitutional guarantees of the fundamental rights to the lowest strata of society.

In fact, if one looks at the preamble of the Constitution, it expressly emphasises that sovereignty belongs to Almighty Allah alone and the State power is a sacred trust to be exercised by the chosen representatives of the people. One of the foremost principles of ‘trust power’ since times immemorial is that the power ultimately belongs to the beneficiaries and could only be exercised in their best interest and for their welfare.

In our country where more than half of its population is living below the poverty line and people can barely sustain the ever-increasing price-hike and have to work extra hours to make both ends meet, litigation is an expensive luxury unaffordable at the Supreme Court level by more than 90 percent of the country’s population.

What is the significance of the fundamental rights guaranteed by the Constitution to these 90 percent citizens of Pakistan, if they cannot have access to an enforcement mechanism provided by the laws of the country? The assurance given by the Constitution of equal protection of its laws in return for unquestioned obedience and loyalty withers off, if these rights are not enforceable and merely an illusion in reality!

Article 184(3) of the Constitution empowers the Supreme Court to perform its duties and obligations, as the guardian of these fundamental rights for their enforcement and ensure that lowest of the low benefits from the constitutional guarantees covenanted by the founding fathers in Articles 4 and 5. In a series of judgments, the court has already outlined the various aspects of power, thus, granted. For instance, in the State vs. Ziaur Rehman and others (PLD 1973 SC 49) the court observed: “So far, as this court is concerned, it has never claimed to be above the Constitution, nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution, which it has taken oath to protect and preserve, but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this court.”

This is a right which it acquires not ‘dehors’ the Constitution, but by virtue of the fact that it is a superior court set up by the Constitution itself. It is not necessary for this purpose to invoke any divine or supernatural right, but this judicial power is inherent in the court itself. It flows from the fact that it is a constitutional court and it can only be taken away by abolishing the court itself.

In saying this, however, I should make it clear that I am making a distinction between "judicial power" and "jurisdiction". In a system where there is a trichotomy of sovereign powers, then ex necessitate rei, from the very nature of things, the judicial power must be vested in the judiciary. But what is this judicial power? It has been defined in the American jurisprudence (corpus Juris Secundum Vol XVI, paragraph 144): "The judiciary or judicial department is an independent and equal coordinate branch of government, and is that branch thereof which is intended to interpret, construe, and apply the law, or that department of government which is charged with the declaration of what the law is, and its construction, so far as it is written law."

It went on to observe in another case (Col Shah Sadiq vs Muhammad Ashiq 2006 SCMR 276): “The scheme of our Constitution is based on trichotomy of power……In this system of trichotomy, the judiciary has the right to interpret, the legislator has right only to legislate and executive has to implement. The trichotomy of powers, which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere.”

The Supreme Court in the case of National Insurance Corporation Limited (NICL), taking suo moto action observed: “The exercise of constitutional powers by the High Court and the Supreme Court, under the relevant Articles, have been categorised as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision, which is contrary to law or is violative of fundamental rights guaranteed by the Constitution.”

With the expanding horizon of Articles dealing with fundamental rights, every executive action of the government or other public bodies, including instrumentalities of the State or those which can be legally treated as "authority", if arbitrary, unreasonable or contrary to law, is amenable to the writ jurisdiction of the Supreme Court or the High Courts and can be validly scrutinised on the touchstone of the Constitutional mandates.

It has become by now a well-settled global judicial norm that the apex court has the power to act as arbiter of disputes in order to maintain check and balance.

The parameters of the court's power of judicial review of administrative, or executive action, or decision, and the grounds on which it can interfere with the same, are also well settled. Indisputably, if the action or decision is perverse or such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.

For these reasons, the independence of the judiciary has been guaranteed and the very preamble of the Constitution provides that the people of Pakistan and the independence of judiciary shall be fully secured. The judiciary cannot compromise at any cost its independence, as guaranteed under the Constitution; as such compromises would lead us to the situation of the last so many years. It is for the first time the judiciary asserted its authority, and as a result thereof the democratic system is prospering in the country, despite many hick-ups.

– To be continued...

    The writer is a senior advocate of the Supreme Court of Pakistan.

    Email:akramsheikharticles@gmail.com