Recently I read a statement of a former judge of the Supreme Court in a newspaper which, if it has been faithfully reported, is unbelievable. The statement said, “the Supreme Court has unlimited powers. No person or body of persons has unlimited powers in Pakistan. The legislature is said to be sovereign. But even the legislature cannot make a law which is in conflict with the Constitution although the legislature can, with two thirds majority, amend the Constitution itself. Thus there are checks and balances in the system.
It is true that there is no Court above the Supreme Court where a remedy lies if you do not agree with any of its decisions. This, however, does not mean that the Supreme Court has unlimited powers. Even the Supreme Court is subject to the law of the land. But since finality (not infallibility – please note) attaches to its decisions, the Supreme Court is always expected to act with self restraint. In fact self restraint should be the hall-mark of all its proceedings. Self restraint comes from maturity. There was a time when our Supreme Court under the leadership of great Chief Justices displayed that kind of maturity. Where the Chief Justices faltered (for. it is human to err) one of the puisne judges protested and showed the right path to the future judges. But unfortunately those traditions did not persist.
The Supreme Court is the final interpreter of the Constitution and law. It is a great responsibility. By way of an extreme hypothetical example it can be said that if the legislation says ‘black’ the Supreme Court may say that the legislation in fact meant ‘white’ and thus may interpret ‘black’ as ‘white’. But the Supreme Court is not expected to act that wildly. What the Supreme Court is really expected to do is to interpret the law and Constitution in their true spirit by exercising extreme self-restraint.
It seems, different people have different ideas about what the Supreme Court should or should not do. In this respect, I have been reading (in the newspapers) and hearing some shocking things not only from lay persons but also from experts. For example, now that the Supreme Court has been acting independently, it should decide matters according to the expectations of the people. A legal expert said that the Chief Justice should have by now learnt where the power lay — with the people and not with the Establishment. Both these statements are not only invalid but also misleading. The Supreme Court does not have to decide cases according to the expectations of the people or in favour of the power wherever it may lie, It always has to decide in accordance with the Constitution and law regardless of whether the decision conforms to the expectations or not and whether the decision is in favour of the establishment or the people.
Now coming to the so-called suo moto power of the Supreme Court, even if it has such a power, the question is whether it should be exercised indiscriminately. One thing is clean. The Supreme Court is not supposed to run either the federal government or any of the provincial governments. In doing so, it will be crossing its own legal limits which, having respect for the law, it should not do. However, in view of the excesses committed by the Supreme Court, there is some talk of the Parliament clipping the powers of the Supreme Court in that behalf. Even if that comes to happen the lawyers and the court are always likely to find a way around it. Therefore, it is necessary that the Court itself should draw the line between cases where it would act suo moto and those where it would not. The line should not be drawn on a case to case basis. It should be well defined, in advance, for the benefit of the public at large as well as the members of the bar. Usually such a power should be exercised when no other remedy is available. If another appropriate remedy is available, it should be left to the government or the judiciary concerned. Further, it should be a case of the violation of a fundamental right of an individual when the victim is not in a position to have recourse to law. It is wrong to draw any public inconvenience into the realm of the fundamental rights like traffic jams, flooding of streets or rise in prices etc. A petitioner cannot be stopped from filing a petition but it is for the Court to scrutinize it with a discriminating eye. An indiscriminate exercise of ‘suo moto jurisdiction’ is likely to bring the Court into ridicule. Now that, fortunately, our judiciary has come into its own, for a change, it is very necessary that it should also maintain its dignity.