By Babar Sattar

Last Thursday Justice Zawaar Hussain Jaffery of the Supreme Court restrained the National Assembly Standing Committee on Education from investigating the matter of reassessment of the examination books and award of additional marks to the daughter of Justice Abdul Hameed Dogar by the Federal Board of Education. Justice Jaffery heard the civil petition filed by one Raja Abdul Rehman in his chambers. And while granting injunction aimed at staying parliamentary proceedings, the judge did not even fix the next date of hearing to enable the respondents to contest the order on an urgent basis. In passing its edict, the Supreme Court has misinterpreted Articles 66, 68 and 69 of the Constitution, exceeded the jurisdiction vested in it by our fundamental law, disregarded the constitutional system of separation of powers and checks and balances, and rendered the court vulnerable to allegations of scandal.

The real question is whether this mistake is a product of ignorance, incompetence, bias, or, dare one say, malice. To say that the Supreme Court ruling is not a speaking order is as mildly and mercifully as one can put it. The short order provides no insight into why the apex court chose to intrude into the province of the legislature in such a hurried and fanciful manner. The petitioner made two substantive arguments while seeking a restraining order against the parliamentary committee investigating the Farah Dogar affair: (i) the proceedings of the committee were without jurisdiction as Article 68 of the Constitution prohibits parliament from discussing the conduct of a judge; and (ii) the matter was pending before the Islamabad High Court and the parliamentary committee “had no jurisdiction to entertain any dispute during pendency of court proceedings”.

The court merely acquiesced in such reasoning without deliberating over its legal merits and went right ahead to issue the gag order. A preliminary review of the legal arguments makes it obvious that the ruling of our Supreme Court is simply indefensible. Let us first reiterate the obvious: all branches of the government are products of the Constitution and have only such powers as are enumerated therein. Article 66 of the Constitution deals with the privileges of members of parliament and holds that “subject to the Constitution and the rules of procedure of Parliament, there shall be freedom of speech in Parliament and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament”. Article 66 defines Parliament as “either House or a joint sitting, or a committee thereof.”

Article 69 further states that “the validity of any proceedings in Parliament shall not be called in question on the ground of any irregularity of procedure” and that “no officer or member of Parliament in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament, shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers”. The only restriction on the freedom of speech of parliamentarians is prescribed under Article 68 of the Constitution, which holds that “no discussion shall take place in Parliament with respect to the conduct of any Judge in the Supreme Court or of a High Court in the discharge of his duties.” Articles 66, 68 and 69 highlight the constitutional scheme of separation of powers as well as the checks and balances that come along: the Court cannot interfere with the proceedings of parliament, and parliament in turn cannot discuss the conduct of a judge - but only with regard to the discharge of his official duties.

In view of the express language of Articles 66, 68 and 69, it is clear that (i) the proceedings of the parliamentary committee on education qualify as proceedings of parliament, (ii) the chairman of the committee vested with the power to conduct its business enjoys immunity from court proceedings “in respect of the exercise by him of those powers,” (iii) the members’ right to free speech cannot be fettered, and (iv) the validity of parliamentary proceedings cannot be questioned by any court and consequently can also not be stayed. To the extent that the parliamentary committee is discussing or investigating a matter that doesn’t involve the conduct of a judge in relation to the discharge of his judicial duties, the prohibition of Article 68 doesn’t apply. An investigation into the reassessment and illegal grant of additional marks by the Federal Board to Farah Hameed Dogar and Justice Dogar’s possible abuse of influence to get rules bent for his progeny certainly doesn’t amount to an inquiry into the judicial conduct of a judge.

Where does the Supreme Court, then, derive its authority to slap a gag order on parliament? From a formal doctrinal perspective it is clear that in delineating the powers of various state institutions, the Constitution creates certain zones of discretion within which each branch of the government can function without breaching anybody else’s rights. In order for the constitutional system of separation of powers to work, it is imperative that each institution applies self-restraint and does not stray beyond its zone of discretion in reacting to the exercise of discretion by another equal pillar of the state. Yet we find the Supreme Court veering deep into the province of the legislature - and that too out of a misplaced zeal to conceal the shame of one of its own.

From a functional perspective, considerations of institutional competence must guide the court’s exercise of judicial review. Even if explicit provisions of the Constitution did not oust the jurisdiction of the court when it comes to the business of parliament, is the court qualified or capable of creating judicially enforceable standards to regulate the business of a parallel pillar of the state? Is it not inappropriate, and indeed unwise, for the court to flex its institutional muscle to interfere with parliamentary investigation of the scandalous abuse of executive authority by an examination board that also threatens to unveil the indiscretions of the country’s top judge in the exhibition of his parental love?

Marbury versus Madison (1803) is the seminal case where the US Supreme Court held that “it is emphatically the province and duty of the judicial department to say what the law is” and thus awarded itself the power to undertake judicial review of Acts of Parliament. In this case Chief Justice Marshall held that in the event of a conflict between the Constitution and an ordinary statute, the judiciary was bound to follow the Constitution. He decided that case in a manner that the principle of judicial review was established and the policy of President Thomas Jefferson to not confirm the midnight judicial appointees of President John Adams - his predecessor - was also not disturbed. Even though Chief Justice Marshall was himself the secretary of state for President Adams and had himself prepared the commission for Adam’s midnight appointees, the decision was a masterstroke wherein Chief Justice Marshall succeeded in laying down a principle that secured judicial independence for all times to come. And he was only able to do that because in rendering his decision Justice Marshall was not focused on influencing the immediate outcome in the matter before him.

Coming back to our scenario, the Supreme Court’s interference in parliamentary proceedings is neither backed by the text of our Constitution nor supported by a pragmatic though process. In attempting to influence the outcome of a particular matter that affects the person of Justice Dogar, our apex court threatens to undermine the principle of judicial independence and public support for it. Can there be a more inopportune case for the Supreme Court to engage in a turf war with the Parliament aimed at protecting the virtue and independence of the judiciary when the top judge has been caught with his hand in the cookie jar and the underlying facts of the matter epitomise the fear “quis custodiet iposos custodies” - i.e., who will guard the guards themselves?

 

To be concluded..

 (The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School. Email: [email protected])