Of Illegal Injunctions And Lines In The Sand

Of Illegal Injunctions And Lines In The Sand
On 18th April, the Pakistani Bar Council announced a countrywide strike against the 13th April 2023 Supreme Court Order regarding the constitutional petitions challenging the Supreme Court (Practice and Procedure) Bill 2023, which sought to regulate bench formations of the Supreme Court, as well as provide cases where bench formation was contentious with the right to an appeal to be heard by a larger bench. The 8 member bench passed an Interlocutory Order stating that the case is to be fixed for hearing on the 2nd of May, however during the determination of said petitions, the aforementioned legislation is to be placed under Anticipatory Injunction, since the Bill constitutes a substantive and direct interference with the working of the Court and an open attack against the independence of the judiciary.

Let us put aside the argument that the legislature calling for a committee composed of the Chief Justice and two senior judges, in case of a petition, appeal or suo motu proceeding or constitutional petition under Article 184(3) are to formulate benches, is a devastating attack on the judiciary. What has truly shocked the legal fraternity is the Injunctive Order passed by the Supreme Court.

Unfortunately, this action by the Supreme Court is questionable at best, and is in violation of not only the doctrine of separation of powers, but is also against the 75 years of judicial precedents passed by said Court. It is a settled principle of law that the Supreme Court is not to strike down legislation on a whim and it has been held repeatedly by the said Supreme Court that it is the duty of the courts to find constitutionality within legislation and only after extensive legal proceedings could a law be declared ultra vires and by doing so, they repeatedly held the sanctity of the doctrine of separation and the trichotomy of power.

One of the first instances regarding this judicial question was raised in the landmark case Federation of Pakistan versus Aitzaz Ahsan PLD 1989 SC 61 wherein a 7 member bench held that it is a settled principle of law that legislation is to function as normal until it is declared as ultra vires, and this was in recognition of an important element regarding the law of interpretation. This became the Aitzaz Ahsan Doctrine.

However, the bench ignored this settled and clear doctrine and instead relied on a 17 bench judgment of PLD 2010 SC 265 and paraphrased the following line from said judgment, declaring their authority to pass such an order in the exact manner.

“……ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc….”

Yet, the said paraphrased line is absent context and rightfully so, as we know that the devil is always in the details. The judgment that is being cited concerned the National Reconciliation Order 2007, wherein the said bench had declared the Ordinance illegal. It is important to note that the Supreme Court had declared that the case regarding the NRO was unique in its nature, and thus the principles of said law equally unique in precedent. The context of this line was that when NRO was declared, multiple petitions challenging the said Ordinance were passed and many of those petitions held that the said Ordinance be suspended till the pendency of the petitions.

On 12th October 2007, a three-member bench headed by the Chief Justice actually refused to suspend the Ordinance but held that public officials could not claim benefit under Sections 6 and 7 of the National Reconciliation Order 2007 if the said law was declared ultra vires. The aforementioned line was within said order. However, what the Court chose to ignore was that on 27th February 2008, a five member bench of the Supreme Court not only removed the aforementioned line from the 12th October order, but also stated that the Supreme Court does not have said power in line with the Aitzaz Ahsan Doctrine, which was passed by a Superior bench, thus the order was inherently illegal.

Within the aforementioned judgment that the Supreme Court relied upon, nowhere does the 17 member bench declare the paraphrase as a principle of law, and merely wrote the line when quoting the order regarding arguments forwarded by one of the counsel, nor did they suspend or adjudicate upon the Order from 27th February which highlighted that the 17 member bench neither regarded itself holding such power, nor did they see the 27th February judgment as illegal, nor did they declare the 12th October judgment as valid.

The Supreme Court gave itself an injunctive power that did not exist as a legal precedent, and merely quoted a line from a judgment absent context as a declaration of authority which is in contrast to the law of precedent as the very authority of the precedent comes from the details. The nature of said cases is not derived from vague declarations of power through half sentences. By doing so, the Supreme Court stands in contravention of not only its very own precedents, but also against settled principles of law that are respected and adhered to all over the world.

Furthermore, the Supreme Court having the power to give anticipatory injunctions to legislation is a clear intrusion into the domain of the legislative, and even if we entertain the misinterpretation that the trichotomy of power means that the legislature cannot legislate the courts, even then the Court must adjudicate upon the legislation by limiting itself within its domain and not provide itself powers that are not part of the judicature, even by the most permissive of interpretations. After all, if the Supreme Court can render legislation stillborn through Interlocutory Orders, then it can subject any legislation to this treatment by simply entertaining a petition. The interpretation of ultra vires demands that legislation can only cease to function when it is declared and adjudged that said legislation is void. Before the passage of such a declaration, the functionality of the law cannot be impeded. The very prospect is horrifying for every legal mind of the country, and should be many times more for the legislators sitting within and outside the Parliament.

The Supreme Court also spoke of the trichotomy of power, however it has left many scratching their heads on whether the trichotomy of power means that the legislature cannot legislate on the other domains of the state, for if it is so constrained upon the subject of one institution, then how could it legislate regarding the powers of the executive. More importantly, if the Supreme Court serves as a check on the executive and the legislature, and the legislature is the check on the executive, then who is the check on the Supreme Court. The doctrine of seaparation of power is designed to prevent the supremacy of a singular institution. It does not give unfettered powers to one. Perhaps in the future, the Supreme Court can adjudicate upon this legal question as well and tell us whether it is the trichotomy of power, or the trichotomy of power bar one.

The legislation in question is indeed home to ulterior motivations, however there is no doubt that the Supreme Court has not acted with judicial maturity and has instead decided to lock horns with the Parliament at a time when the country is undergoing a severe constitutional crisis. The Court has undoubtedly plunged us deeper into the crisis. There is no doubt that both the Parliament and the judiciary need to confine themselves within the limits of their jurisdiction, and cease taking egotistical actions that will only plunge us deeper into this crisis.