Parliament or Judiciary: who is the grand inquisitor?

Following the shocking result of the Brexit referendum in the UK, the Supreme Court of England and Wales recently heard an appeal concerning the lawfulness of the UK government’s intention to serve notice of its to leave the European Union under the powers of the Royal Prerogative, rather than through an Act of Parliament. The Divisional Court of the High Court has already determined that the UK Government could not lawfully use the Royal Prerogative to serve the notice to leave the EU. The Supreme Court’s judgment is expected to be handed down sometime in January 2017. This case is, perhaps, the single most important constitutional case in the last half century.

Whether the results of the referendum were driven by a tilt towards the right by the British electorate, representing an inward looking stance that has become the underbelly of most of Western European; or whether the result was due to the undemocratic nature of the EU institutions, is still being debated. The reality is that the British electorate has voted in favour of exiting the largest economic union in the world.

The Brexit case gives rise to a number of issues of general application to constitutional arrangements throughout the world. Issues as to the importance of the sovereignty of parliament; And what is the Court’s proper constitutional role in determining the lawfulness of the executive powers and how this is to be balance against the concept of the sovereignty of Parliament; finally to what extent should the Court allow itself to become embroiled in what may be properly regarded as Parliamentary matters?

But essentially in the case, the question before the UK’s Supreme Court really is a very limited one – that of reiterating how supreme Parliament actually is. In various parts of the world, including Pakistan, the importance of the supremacy of Parliament (or its equivalent governing body) and the increasing recognition of the core principles needed for a strong parliament, in an evolving democratic setting, have gain increasing traction in the last 50 years. Concepts such as Parliament’s right and ability to make a law on any subject, so long as it is within its constitutional bounds are key. As is the concept that a present parliament cannot bind its successor. Further, under the concept of the Rule of Law, the proper role of the judiciary is to interpret the laws passed by Parliament; not to challenge the laws, provided of course that such laws do not infringe any constitutional provisions.

A sovereign and truly democratic Parliament should result in a more focused judiciary. In other words, when the parliamentary machinery is truly democratic, representative of society, including minorities and all genders, and functions well, it should mean a more subservient judiciary that does not challenge the legislature’s intentions, but interprets the law in within the context of the constitution. A healthy Parliament also requires parliamentary committees that are composed of all party and independent candidates, and when they function, they do so with the proclivity across party lines. Parliamentary committees should be a check on the executive branch of government by scrutinising its acts and proposed legislation and their execution. The jurisdiction of parliamentary committees is wide enough to ensure that the committees’ investigatory responsibilities can be fulfilled. This is because the committees bring to life the essential checks and balance required of an elected house. The committees are one step closer to the electorate because they are informal enough and mandated widely enough to generate a debate around matters that affect public administration and policy. They can, therefore, affect good governance. Or perhaps better put, if properly formed and functioning, parliamentary committees can help eliminate bad governance.

What does all of this mean for Pakistan? If the present and future intention of this country is democratic, with the concept of Parliamentary sovereignty at its core, then we must recognise the importance and key role to be played by House committees. Parliament, and in turn its committees, in all successfully functioning democracies are known as the “Grand Inquests” with wide powers, privileges and immunity to take up a matter of public interest. This means the power to investigate, obtain evidence and call witnesses for evidence as required.

Having stated the unwritten, but widely accepted, rule that a supreme Parliament is a prerequisite in a democratic setting, there is no avoiding Article 184(3) of the Constitution of Pakistan 1973.  Article 184(3) allows the Supreme Court to take up cases that raise “a question of public importance with reference to the enforcement of any of the Fundamental Rights…” stated in the Constitution.

The first question then really is whether the supremacy of Parliament and the powers granted to the Supreme Court under the Constitution are contradictory? I do not believe that any such contradiction exists. In fact, they are complimentary. But the essential rule to understand is that a democratic Parliament should always be supreme. This does not take away from the grandness of the judiciary, nor does it diminish its key constitutional role. Supremacy of Parliament in fact enhances the role of the judiciary by allowing it to carry out its primary responsibility –to adjudicate, interpret the law and ensure justice, as the final court of appeal.

The constitutional suo moto, otherwise known as ‘on its own motion’, powers of the Supreme Court have been increasingly utilised in Pakistan. This was particularly sounder the ex-chief justice of the Supreme Court, Chaudhry Iftikhar. His Court was action filled with pending important concerns, certainly of public interest and importance. But the questions that arise are whether this power should be used more sparingly? Is this judicial activism impinging on the administrative duties of the executive? Is this imbalance because Parliament and its committees are defunct? And importantly, does an over active judiciary blur and diminish the important impartial constitutional role to be played by it?

Suo moto powers of the Supreme Court are often driven by a media frenzy resulting in popular activism and public support. But an under monitored media that often acts irresponsibly, and in a sensational manner, should not be the drive of the highest court in the country. Popular in their actions, yet the possibility of partiality should not be the legacy of the judiciary. The Supreme Court must use its power so sparingly that it creates the impact the subject deserves.

It is not the Supreme Court that should be calling for and reminding the government regarding a census, it the legislature and its committees that should be doing so. It is also arguably beyond the ambit of the Supreme Court to set up a commission on the Panama leaks matter, irrespective of its gravity. A parallel may be drawn with the UK, where the Iraq Commission - of which the public importance of the issue cannot be over-emphasised — was led by a senior civil servant. Not the Supreme Court. Quite properly, the Supreme Court had no role in the Iraq Commission. In our adversarial legal systems, where two parties present their case in front of an impartial judge(s), the Supreme Court has arguably stretched its proper constitutional ambit too far.

Pakistan’s Supreme Court must be recognised as a central institution in our democracy. It should not be personality based, a popularised headline grabber that will eventually lose its core essence – that of impartiality, prudence and discretion. The imparting of justice requires the judiciary to remain relevant and powerful, beyond and above party politics. It also requires the judiciary to understand and respect Parliament and its supremacy above all branches of the administration.

We are standing at a juncture in history, where 2018 is likely to see the second democratic transition from one elected government to another elected government. Being a young democracy, the only sustainable way forward is for all institutions and state apparatus, elected, appointed and those in uniform, to recognise and adhere to the first basic and most imperative principle in a democracy –that of parliamentary supremacy.

So the rules go something like this:

Rule number one: A democratically elected House of Parliament is always sovereign and above all state institutions. It is the grand inquisitor.

Rule number two? Refer back to rule number one.

Published in The Express Tribune, December 29^th, 2016.

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