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Thursday February 09, 2023

Judicial powers

December 09, 2022

In all federations, powers between constituent units are shared on an equitable basis. Powers vested in federal organs are clearly specified in the constitution of a country, and all other powers are assumed by provinces/states.

Pakistan is no different. Under Article 142, all powers belong to the provinces except those enumerated in the Federal Legislative List for federal organs. Parliament is barred from legislating on provincial matters.

At the federal level, the Supreme Court (including special courts – customs or FIA), is the main judicial organ. In the provinces, high courts have jurisdiction to enforce fundamental rights (Article 199). This includes control and supervision of subordinate courts/tribunals (Article 203).

The SC functions as an appellate court to provincial high courts. Its original jurisdiction is limited to adjudication of disputes between any two or more provinces and/or the federal government (Article 184).

Under Article 185, the SC can hear civil and criminal appeals against final orders of a provincial high court. Article 186 also confers on it the power to give opinion on any question of law on a reference sent by the president.

The SC shares limited power with high courts to enforce fundamental rights (Article 184(3)), subject to the jurisdiction of high courts (Article 199) and only pertaining to issues of public importance, after consideration by full court.

Article 184(3) begins with the words “without prejudice to the provisions of Article 199,” which means without prejudice to the jurisdiction of provincial high courts.

Since the orders of the SC under Article 184(3) are not appealable and proceedings are inquisitorial – rather than adversarial in nature (of course subject to the jurisdiction of high courts) – it must exercise its powers with utmost caution so as not to affect the jurisdiction of the high courts (Article 199)

The SC’s judgments must neither affect the jurisdiction of high courts nor encroach upon the domain of the executive or the legislature. For example, under Article 63(2), an elected lawmaker can only be disqualified by the Election Commission on a reference from the speaker or the Senate chairperson.

Accepting cases, challenging the vires of laws, or summoning cabinet members and ministers before the SC under Article 184(3) is neither desirable nor legally tenable. The federal and provincial governments are only answerable to parliament and provincial assemblies. Article 248 protects ministers from being summoned or made responsible to any court in exercise of their official functions.

If the SC has less recourse to Article 184(3) as per the constitution, cases pending under its original jurisdiction are minimal, which could be one or two. Under its advisory jurisdiction, only one reference sent by the president (the judicial murder of former PM Zulfikar Ali Bhutto) is pending. The SC must remain within its constitutionally determined role and should concentrate on its appellate jurisdiction (where thousands of cases are pending), rather than engaging in judicial work of provinces by invoking Article 184(3).

High courts have more immediate and essential judicial functions including the adjudication of criminal and civil cases and enforcement of fundament rights (Article 199).

Subordinate courts and tribunals under provincial high courts have no administrative nexus with the SC so they are not sub-ordinate to the SC. The federal judicial power is restricted to hearing appeals from judgments of high courts by the SC. Within high courts, a bench of two judges also hears appeals against the orders of single judges; this does not make any judge sub-ordinate to those judges hearing appeals against their decisions.

High courts correct errors of judgments by governments (Article 199). This also does not make the government sub-ordinate to high courts. It is embedded in our constitution that the SC shall exercise its jurisdiction in such a manner so as not to affect the jurisdiction of the provincial high courts. This is based on division of powers under the federal constitution.

Article148 directs the federal and provincial governments to exercise their executive authority in a manner so as not to affect the executive authority of each other, it is incumbent upon the SC not to affect the jurisdiction of high courts to enforce fundamental rights.

It is imperative to emphasize that no vertical hierarchy exists between the SC and high courts. The qualification for appointments of SC judges (under Article 177) is not restricted to high court judges. Any practising advocate (minimum 15 years) in any high court is eligible to be appointed as an SC judge.

The appointment of a high court judge to the SC is not elevation. It is a fresh appointment to a court with different jurisdiction. High court judges are paid by the provincial governments, and SC judges by the federal government. Since the responsibilities of high courts are onerous, the salaries and privileges of high court judges must be on a par with SC judges.

Parliament and provincial assemblies (Articles 191 and 202) must now regulate the long overdue procedure of the SC and high courts. The review procedure must also be regulated by the law (Article 188) and Contempt Acts enacted by provinces guaranteeing free speech and right of dignity (Articles 19 and 14).

The original jurisdiction of the SC is adjudication of disputes between two or more governments (whether provincial or federal). As such appointments to the SC must have equal representation from the provinces.

This is a normal fair judicial principle. To date, the provinces of Balochistan and Khyber Pakhtunkhwa (KP) have been denied equality in the SC. Sindh too is denied meaningful representation.

Unless the role, jurisdiction and limitations of all courts are understood in proper constitutional perspective, the call for the ‘independence of the judiciary’ will remain a cry in the wilderness.

The writer is a former advocate general of Sindh. He tweets @zamirghumro.

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