SUPREMACY OF THE SUPREME COURT AND THE POLITICS OF ARTICLE 270As

SUPREMACY OF THE SUPREME COURT AND THE POLITICS OF ARTICLE 270As <!--[if gte mso 10]> SUPREMACY OF THE SUPREME COURT AND THE POLITICS OF ARTICLE 270As By Barrister Zeeshan Adhi*, Advocate High Court, Karachi *Author can be contacted at zeeshanadhi@hotmail.com Judicial review is a principle .well enshrined in common law legal traditions. In England, the doctrine of Judicial Review is limited in its ambit to reviewing the functioning of the executive when discharging public obligations. However, in countries with a written constitution, the doctrine of Judicial Review also includes the power of the apex Court of the country to determine the constitutionality of legislative provisions. This relatively recent power of reviewing constitutionality of various Acts passed by the legislature was conceived by Chief Justice John Marshal of the Supreme Court of United States of America in the case of Marlbury v. Madison [1]. In this case the Supreme Court, against all judicial precedents declared the Judicial Act of 1789, as unconstitutional. This judgment was a beginning of what can be called an end to the doctrine of parliamentary supremacy, because for the first time, the courts ventured into striking down laws enacted by the Parliament, on the pretext of them being contrary to the Constitution. In Pakistan, successive military governments and dictatorial regimes have tried to deprive the Supreme Court of its inherent powers of reviewing the constitutionality of legislations and statutes. The need .to limit these powers is a result of a rather tumultuous political history of Pakistan. It is not within the scope of this paper to discuss the reasons and ramification of military takeovers. I am more inclined to discuss whether the inherent powers of the Supreme Court can be taken away by an unconstitutional regime. The methodology of ousting the jurisdiction of the courts adopted by successive dictators is by way of a "constitutional amendment". Article 270A and Article 270AA of the Constitution of Islamic Republic of Pakistan, 1973 are examples of ouster of the Supreme Court's jurisdiction. The latest addition to these series of Articles is Article 270AAA which was added by General Musharraf on 3-11-2007. The relevant part of Article 270AAA reads as under:-- (1) The proclamation of Emergency of 3rd November, 2007, all President's Orders, Ordinances, Chief of Army Staff Orders, including the Provisional Constitution Order No.1 of 2007, the Oath of Office (Judges) Order, 2007, the amendments made in the Constitution through the Constitution (Amendment) Order, 2007 and all other laws made between the 3rd day of November, 2007 and the date on which the Proclamation of Emergency of the. 3rd day of November, 2007, is revoked (both days inclusive), are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever. (My Emphasis) In essence, Article 270AAA operates to oust the jurisdiction of the Supreme. Court of Pakistan and the provincial High Courts to review, on a constitutional touchstone, any laws enacted during the period of constitutional deviation. It may be noted at the outset that although similar in intent and purposes to the earlier Articles 270A and 270AA, this Article has not yet received the approval of an elected Parliament and consequently can be struck down by the Supreme Court of Pakistan in its entirety. The journey of examining the possibility of ousting the Court's jurisdiction starts with the judgment of the Supreme Court in the case of State v. Ziaur Rehman [2]. In this case, Hamud-ur-Rehman, C.J. held: "So far, therefore, 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 de hors 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 super-natural 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." It is crystal clear from the above statement of Hamud-ur-Rehman, C.J., as he then was, that the Supreme Court never was, has never been, and never will be prepared to accept any limitations on its inherent jurisdiction to examine the constitutionality of an Act/statute. One of the reasons for jealously guarding its jurisdiction over reviewing the constitutionality of legislative and executive actions is so that the executive is not vested with unlimited powers. This concern was aptly put in the case of Benazir Bhatto v. Federation of Pakistan [3] by Justice Zafar Hussain Mirza, He said: "such unbridled supremacy would mean the virtual continuation of the entire legal order existing on the date of withdrawal of Martial Law over and above the Constitution which, in consonance with the settled principles of interpretation, is difficult to attribute to the legislature." It is very clear from the above statements of the Honourable Supreme Court that the jurisdiction of the Supreme Court cannot be ousted. Now we move on to the next important question, which is, on what grounds can the Supreme Court declare such "protected statutes/legislations", that is, ones which were enacted by the military regimes during the period of constitutional deviation, as unconstitutional. The starting point is the case of Federation of Pakistan v. Ghulam Mustafa Khar [4]. In this case, Saad Saood Jan, J has held that: "Taking into account the background in which Article 270A was enacted, the language in which it is phrased and the absurd results which would to flow if it is construed widely, it appears that its object was merely to afford protection to the dispensation which came into existence as a result of `Constitutional deviation'; it is difficult to interpret it as conferring validity and immunity upon such acts, actions and proceedings as were illegal or indefensible even under that dispensation. Thus, this Article does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide." This paragraph was also cited with approval in the case of Sabur Rehman v. Government of Sindh [5] by Ajmal Mian, J. A bare reading of the above judgments might suggest that the Supreme Court has limited the scope of its jurisdiction to examine the constitutionality of legislations 'enacted during the period of constitutional deviation. However, it is submitted, that an in-depth analysis of the judgments of the apex Court will reveal that this is not the case. The Honourable Supreme Court has essentially identified three core criteria for testing the constitutionality of a legislative provision. Consequently, a statute can be declared unconstitutional if it suffers from (i) want of jurisdiction, (ii) is coram non judice, (iii) is mala fide It is submitted that the Supreme Court has used these three criteria disjunctively. Consequently, as long as even one of the above criteria is satisfied, the legislative provision can be declared as unconstitutional. This means that every time an Act or a statute enacted during the period of military dictatorship is brought before the Supreme Court, the honourable judges will examine the provisions of the legislation against the aforementioned three criteria. It may be noted that the Supreme Court has used very broad language when giving its judgments. It is submitted that the Supreme Court has done so with the intention to keep its options open when dealing with such constitutional issues in future. It is very clear that any judiciary with democratic tendencies will be at pains to declare, whether explicitly or impliedly, any act of military dictatorship, as not violating at least one of the aforementioned three criteria. As adequately summarized by Ajmal Mian, J in Sabur Rehman case [6] "the jurisdiction of the Supreme Court or of this Court is not barred from reviewing acts, actions or proceedings taken place during the Martial Law days which suffered from defect of jurisdiction or were coram non judice or were mala fide.'" The Supreme Court has taken similar approach in the case of Mehmood Khan Achakzai v. Federation of Pakistan [7] and very recently in the case of Watan Party v. Federation of Pakistan [8], thus proving that the Supreme Court is consistent in its approach when determining the constitutionality of legislative Acts, specially those enacted during the period of undemocratic regimes. [1] 5 US (Crunch 1) 137 (1803); [2] PLD 1973 SC 49; [3] PLD 1988 SC 416; [4] PLD 1989 SC 26; [5] PLD 1996 SC 801; [6] PLD 1996 SC 801; [7] PLD 1997 SC 426 and [8] PLD 2006 SC 697 Conclusion: The Supreme Court of Pakistan has made it a point, time and again, to assert that the jurisdiction of the apex Court cannot be ousted by the dictatorial regimes during period(s) of constitutional deviation. The recent judicial history will however, reveal that although the Supreme Court has actively resisted any measure to oust its jurisdiction, nevertheless, it has not been very forthcoming in declaring the acts/legislative measures of these regimes as unconstitutional. This can partially be attributed to the political ground realities of Pakistan. It is submitted that there has been a judicial transformation of the sorts in Pakistan. Specifically, after the restoration of deposed Judges in March 2009, the strength of the Supreme Court has markedly increased. The emerging political realities of Pakistan are such that this is the most appropriate time to expand the jurisdiction of Supreme Court by striking down the illegal measures of dictatorial regimes. The fact that the latest of these constitutional deviations, that is Article 270AAA, has not yet been approved by the Parliament will only tend to facilitate the Supreme Court in its endeavors. It is of pivotal importance that the Supreme Court takes a categorical view on this matter. This in turn will reaffirm the superiority of the Supreme Court which the dictatorial regimes have been persistently trying to jeopardize by way of ingenious Constitutional amendments.