'Courts can't bypass law in pursuit of justice'

FCC says judicial power under Article 187 must remain within constitutional and statutory limits

ISLAMABAD:

The Federal Constitutional Court (FCC) has ruled that the power to do complete justice under Article 187 of the Constitution must be exercised within the framework of the Constitution and the law and cannot be used to defeat legislative intent or override mandatory statutory requirements.

A three-member bench headed by FCC Chief Justice Amin-ud-Din Khan gave the ruling in a case concerning the entitlement of landowners to enhanced compensation awarded to other landowners under the Land Acquisition Act, 1894.

The judgment addressed the question of whether a landowner who neither sought a reference under Section 18 of the Land Acquisition Act nor challenged the collector's award within the prescribed period could subsequently claim enhanced compensation granted to other landowners through constitutional jurisdiction, execution proceedings or any other collateral proceedings before superior courts.

"Article 187 empowers the court to pass such decree or make such order as may be necessary for doing complete justice in any matter pending before it," the judgment said.

"Nevertheless, the jurisdiction conferred by Article 187 is supplementary and procedural in nature; it does not authorize the court to create substantive rights or disregard mandatory statutory provisions."

The 44-page judgment noted that Article 187 empowers both the Supreme Court and the FCC to do complete justice. The court stated that land acquisition is the legal process through which the state compulsorily acquires private land for a public purpose in return for compensation.

In Pakistan's legal framework, it said, land acquisition represents the statutory expression of the doctrine of eminent domain—the sovereign prerogative of the state to appropriate private property for the greater public good subject to conditions imposed by law.

The judgment noted that land acquisition in Pakistan is primarily governed by the Land Acquisition Act, 1894, enacted during British colonial rule on February 2, 1894, and continuing to operate subject to provincial amendments.

The FCC ruled against the adjudication of matters relating to land acquisition by constitutional courts, particularly high courts, where statutory remedies and limitations apply.

The court observed that Article 175 of the Constitution envisages an independent judiciary exercising judicial authority within limits prescribed by the Constitution and the law.

"The legitimacy and strength of judicial power emanate not from its ability to mould legislation according to perceived notions of equity but from its fidelity to the statutory text," the judgment said.

"Once a court departs from the language employed by the legislature and engrafts into a statute a remedy which the legislature has not provided, it ceases to interpret the law and instead assumes the legislative function, thereby disturbing the constitutional equilibrium among the state organs," it added.

The judgment further held that judicial sympathy could not override a statutory command, particularly where doing so would introduce into the law a remedy that Parliament had deliberately omitted.

"We are convinced that the enhanced compensation awarded in proceedings under Section 18 should not automatically extend to persons who neither sought a reference nor remained parties to the proceedings," the court ruled.

It said recognising such a right would require the court to supply a casus omissus—an omission in legislation—and enlarge the statutory remedy beyond the legislative text.

Such an approach, the court observed, would amount to assuming a legislative function and would be expressly inconsistent with the constitutional doctrine of separation of powers.

It stressed that judicial decisions must ultimately rest on constitutional and statutory authority rather than sympathy or perceived hardship.

"Compassion, however commendable, cannot furnish an independent source of legal power," the judgment said, adding that courts were constitutionally bound to administer justice according to law rather than personal notions of fairness.

The court referred to the maxim that "hard cases make bad law", observing that equitable considerations must remain subordinate to the rule of law.

It said the plight of landowners might evoke sympathy, but such sympathy could not justify creation of substantive rights that the legislature had not recognised.

The judgment further emphasised the constitutional separation between legislative and judicial functions. "While courts are entrusted with the interpretation and application of law, they are not authorized to legislate under the guise of interpretation," it said.

Referring to the maxim Judicis est jus dicere, non-dare, the court said it was the function of a judge to declare the law, not to make it. It also cited A verbis legis non est recedendum, under which courts should not depart from the plain language employed by the legislature.

The court held that judicial interpretation must therefore remain faithful to statutory text rather than substitute judicial notions of fairness for legislative policy.

It cautioned courts against adopting an interpretation which, in the guise of achieving parity, effectively rewrote the legislative framework enacted by Parliament.

"Constitutional guarantees of equality cannot be employed to nullify statutory conditions expressly attached to the exercise of a legal right," the judgment said.

The court held that the right to seek enhanced compensation was not an inherent or continuing right but a statutory right regulated by Sections 18 and 31 of the Land Acquisition Act.

"Once those conditions cease to exist, the right itself stands exhausted," it ruled.

According to the judgment, the act envisages two categories of landowners: those who challenge the award under Section 18 after receiving compensation under protest or without accepting the award, and those who accept the award without protest, in whose case the matter attains finality.

The statute does not contemplate a third category comprising landowners who accept an award but later seek enhanced compensation merely because another landowner successfully pursued the statutory remedy, the court held.

"Recognition of such a category would amount to judicial legislation and would defeat the carefully balanced scheme enacted by Parliament," the judgment concluded.