CommentaryThe Pakistan Supreme Court’s creation of a fund for the construction of two dams in the country is an unprecedented overreach of judicial power that threatens to undermine the development of good governance in the executive branch of government. Additionally, the unrestrained exercise of judicial power is likely to not only result in the judicialization of politics but lead to the ultimate politicization of the judiciary as well, which would undermine public respect for the institution. The judiciary is defending this unconstitutional power grab by citing several articles of the Constitution, but an examination of these articles clearly indicates that the Court has misconstrued and misapplied each of these provisions. If allowed to stand, this judicial overreach threatens to undermine the constitutional separation of powers.
The creation of the Supreme Court’s Dam Fund is predicated on a recent judgment in Barrister Zafarullah Khan vs. Federation of Pakistan in which the Court asserted that the “right to life is a fundamental right and without water there can be no existence of life. The establishment of water reservoirs is therefore not a question of just quality of life rather the very existence thereof. Therefore, in terms of the provisions of Article 184(3) of the Constitution read with Article 9 and as guardians of the fundamental rights of the people of Pakistan, this Court has the jurisdiction to issue necessary directions to the Government for the practical enforcement of the primordial right to life.” Consequently, it directed “the establishment of an account … in the name of the Registrar of the Supreme Court of Pakistan, for collecting funds donated by the people of Pakistan for the construction and establishment of the aforementioned dams” (para. 3(4), Judgment) and appealed to “the Nation for making its contributions, whether in the shape of foreign currency or in Pakistani rupees, directly to the said account” (para. 3(5), Judgment). It further directed that the contributions will enjoy tax free status. For this purpose, the Federal Board of Revenue, the Government of Pakistan and the Provincial Governments were required to “issue such notifications, instructions and orders that ensure that both the contributors to the Fund and the amounts they have deposited therein enjoy complete exemption from tax or scrutiny” (para. 11, Judgment). The Court ordered the tax authorities specifically not to ask any questions about the source of funds contributed to the Dam Fund.
The Supreme Court not only established an account to collect funds for the construction of the dams but also constituted an Implementation Committee to supervise and oversee the construction. It directed that the account will be operated under its orders on the recommendations of the Implementation Committee and indicated that the utilization of the funds in the account will be subject to audit as per directions of the Court. Furthermore, the Court ordered that “the entire process shall be under oversight of two monitoring judges of this Court to be appointed by the Chief Justice of Pakistan specifically for this project” (para. 11, Judgment).
The Judgment stands out among the growing number of judicial precedents based on the Court’s unrestrained exercise of its suo motu powers under Article 184(3) of the Constitution of Pakistan. It is an extreme example of judicial foray into executive and fiscal matters. Therefore, the Judgment, no matter how well intentioned and beneficial as it may be, is distressing because of the blatant misuse of judicial power. It thus raises not only questions of judicial propriety but a number of constitutional and legal issues as well. Firstly, does the Court have the constitutional authority to take up this matter? Furthermore, does the Court have the legal mandate to create and maintain a fund for construction of dams or any other purpose? Is it lawful for the Court to supervise the funding or monitor the construction of dams? Is the Court empowered to exempt donations from all kinds of taxes? Is it just and proper for the Court to order the tax authorities not to ask any questions relating to the source of funds contributed to the Dam Fund? Would it be proper for the Dam Fund to be audited under the directions of the Court? Last but not least, is it just and proper for the Court or Chief Justice to appeal to the people of Pakistan to contribute or donate to the proposed or any other fund? From the discussion below, it is evident that the answers to all these questions are in the negative.
Misapplied and Misconstrued Application of the Constitution
The Constitution of Pakistan mandates that “[n]o court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law” (Art. 175(2)). As discussed below, the Court did not have constitutional power to invoke its jurisdictional authority. Neither the Constitution nor any other law empowers the Court to directly create and maintain a fund for any purpose. The Constitution certainly does not give any general or specific mandate to the Court to authorize the funding or construction of dams. No other subordinate legislation mandates the Court to create and maintain a fund for the construction of dams or even supervise the funding of dams and monitor the construction. Under the Constitution, the Court has been assigned an adjudicatory and not an executive role. The Court does not have any fiscal powers to exempt tax or to order the tax authorities not to ask any questions relating to the source of funds contributed to the Dam Fund. Furthermore, given the fact that the Court has supervisory control over the operation of the account, it would also not be proper for the Dam Fund to be audited under its directions. Under the Supreme Court Rules, the Chief Justice’s functions and powers are limited to the administration of the Court and its officers. He has not been given any economic role or political responsibilities. He does not have any constitutional or legal mandate to conduct banking or financial transactions. Given his status and authority, it is obviously not just and proper for the Chief Justice to appeal to the people to contribute or donate money to the Dam Fund. These conclusions are based on the following critical legal analysis of the Judgment.
An examination of the Articles cited by the Court in its judgment clearly indicates that the Court has misconstrued and misapplied each of these provisions. The Court has, in its Judgment, relied mainly on Articles 9, 78 and 184(3) of the Constitution and Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ESC Rights Covenant). The Judgment, in relevant part, provides that “… water is a resource to which everyone is entitled … and forms the basis of many other rights including the right to life, health and quality of life. It is a fundamental right that emanates from the right to life enshrined in Article 9 of the Constitution …” (para. 2).
The Court’s reliance on Article 9 of the Constitution is misplaced as the Principles of Policy do not confer any enforceable rights the way Fundamental Rights do under the Constitution. Article 9 provides: “No person shall be deprived of life or liberty save in accordance with law.” A plain textual interpretation of Article 9 suggests that it deals with the divestment of a right rather than the provision of a right. There is no direct obligation to provide water in this Article and if the Court considers this to be an integral part of the right to life, then what about food? Isn’t food also essential to life despite the Court’s inexplicable view that “[i]t is well-known that human beings can survive longer without food than without water …” (para.1, Judgment). It is, therefore, not practicable to make this an enforceable right. The promotional aspect of providing food, which includes water, is covered by the Principles of Policy enshrined in the Constitution. Article 38(d) of the Constitution requires the State to “provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens …”. But as the Principles of Policy do not confer any enforceable rights the way Fundamental Rights do under the Constitution, the Court’s reading provides no support to their creation of a Dam Fund.
The Court’s reliance on international resolutions, declarations and general comments is even more misplaced as these documents do not even have binding effect much less are they legally enforceable. The Court cited Articles 11 and 12 of the ESC Rights Covenant, pointing out that Pakistan has ratified this Covenant in 2008 but its unequivocal statement that “according to Articles 11 and 12 thereof, Pakistan is required to better manage its territorial water resources in order to secure the right to water of its citizens” (Para. 5, Judgment) is not borne out by the literal wording of these Articles. Furthermore, the ESC Rights Covenant, even though binding on Pakistan because of its ratification, is not enforceable since Pakistan is a dualist State wherein a treaty is required to be legislated before it can have effect. The ESC Rights Covenant has not to date been enacted in Pakistan. On further analysis of the Judgment, it appears that the Court’s reliance is not directly on Articles 11 and 12 of the ESC Rights Covenant but merely on a general comment thereon by a United Nations Committee on Economic, Social and Cultural Rights: “In the global context, numerous international resolutions, conventions, and declarations also highlight the importance of water. The most apt description is the following extract from General Comment No.15 (2002) … to which we fully subscribe:- ‘Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights’” (Para. 2). The Court cited international resolutions, declarations and general comments that have no binding effect to justify their judicial activism.
The Court’s further reliance on Article 78 of the Constitution to set up the Dam Fund is also misplaced. According to it: “Under the provisions of Article 78 of the Constitution, any funds deposited in the Public Account of the Federation can be dedicated for a specified project or purpose. We therefore direct the establishment of an account, for the time being in the name of the Registrar of the Supreme Court of Pakistan, for collecting funds donated by the people of Pakistan for the construction and establishment of the aforementioned dams” (para. 3.4, Judgment). Article 78 of the Constitution, in relevant part, provides: “(2) All … moneys … (b) received by or deposited with the Supreme Court or any other court established under the authority of the Federation … shall be credited to the Public Account of the Federation.” There is nothing in this constitutional provision itself or any other legislative enactment that empowers the Court to direct the establishment of an account for collecting funds donated by the people for construction and establishment of dams, particularly in the name of the Registrar of the Court. The Court is only authorized to receive moneys (such as court fees) and deposits (such as penalties) under various laws and not on its own motion (such as dam fund contributions from the public). All moneys received by or deposited with the Court are required to be credited to the Public Account, the custody of which is dealt with by Article 79 of the Constitution: “The … custody of other moneys received by or on behalf of the Federal Government, their payment into, and withdrawal from, the Public Account of the Federation, and all matters connected with or ancillary to the matters aforesaid shall be regulated by Act of Majlis-e-Shoora (Parliament) or, until provision in that behalf is so made, by rules made by the President.” Neither Article 78 nor Article 79 of the Constitution specifically provide for any funds deposited in the Public Account to be dedicated for a specified project or purpose, at least certainly not without any parliamentary enactment or presidential rules. Oddly enough, there is no mention of Article 79 of the Constitution in the Judgment.
Under the above circumstances, the Court has misapplied Article 184(3) of the Constitution. This Article, in relevant part, provides: “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article.” The instant case does not involve any fundamental right as Article 9 of the Constitution is not applicable as indicated above. The matter is covered by Article 38(d) of the Constitution, which is a principle of policy and not an enforceable fundamental right. In any event, the Court has gone beyond its power to make an order not of the nature mentioned in Article 199 of the Constitution as required by Article 184(3). The Court has clearly gone beyond its constitutional mandate to exercise authority in this matter. At most what it could have done, if it had jurisdiction, was to direct the Government to formulate, adopt and implement a Water Policy—as it did in the concluding paragraph of its Judgment (para. 14).
A Threat to the Separation of Powers
The Constitution envisages a clear separation of powers between the judiciary and the executive (Art. 175(3), Constitution). The funding or the construction of dams is clearly an executive function. Water supply and the construction of hydro-electric power installations falls within the executive domain under the Constitution. The executive branch of government has not only established the Water and Power Division but has also created a specialized technical legal entity called Water and Power Development Authority (WAPDA) for carrying out these functions. The judicial usurpation of these functions is not only likely to negate the constitutional and legal authority but may also prejudicially affect the political relationship between the Federation and Provinces. Although the Court has recognized the fact that “the issue of alleviating water shortage is essentially within the realm of the executive,” and has accordingly directed “the Federal and Provincial Governments, WAPDA and all the Executive Authorities in Pakistan who are responsible or have nexus/connection with the building of the afore-said dams and all matters connected thereto, to take all necessary steps for the commencement of construction and early completion of these dams” (paras. 3.2 & 8, Judgment), it crossed all judicial boundaries by establishing the Dam Fund and constituting an Implementation Committee for the construction of the dams and also for oversight of execution of their works (para. 3, Judgment). Furthermore, judicial foray into fiscal and audit issues also undermines the constitutional mandate, independence and authority of the legislature and Auditor General of Pakistan in these matters. It is apparent from a cursory review of the Constitution that all the Court actions, i.e. establishment of the Dam Fund by judicial fiat and the effort of the Court to supervise the funding or monitor the construction of dams, exemption of donations from all kinds of taxes, and getting the Dam Fund audited under its direction, are beyond its constitutional power and legal authority. The Court has sought to address a complex issue in a simplistic, naïve and invasive manner. The fundamental issue is lack of good governance in the country, which is only likely to get compounded with unwarranted and excessive judicial interference.
An Unjustifiable Use of Judicial Influence
The Chief Justice’s emotional appeal to the nation to contribute to the Dam Fund and his continuing personal involvement in the matter and the resultant massive advertisement campaign at public expense is totally unwarranted. It is pertinent to note that the Judicial Code of Conduct (Code) unequivocally states that the oath of a Judge implies complete submission to the Constitution, and under the Constitution to the law. Consequently, a judge is required to be law-abiding and his functions are limited to the interpretation and application of the Constitution and the law. He is further required to maintain proper judicial conduct. Article V of the Code specifically provides: “Functioning as he does in full view of the public, a Judge gets thereby all the publicity that is good for him. He should not seek more. In particular, he should not engage in any public controversy, least of all on a political question, notwithstanding that it involves a question of law” (emphasis added). Notwithstanding the nobility of the cause, the establishment of the Dam Fund has generated political controversy. The further appeal by the Chief Justice to the general public to contribute generously to the Dam Fund is conduct unbecoming of a judge. Article VI of the Code specifically cautions: “To employ the influence of his position to gain undue advantage, whether immediate or future, is a grave fault.” Besides wielding judicial influence unjustifiably, it appears to be even otherwise improper to solicit funds without a feasibility report or information memorandum regarding the Dam projects. It would, therefore, be expedient for the Chief Justice and other judges of the Court to show judicial restraint in this regard. Unrestrained exercise of judicial power would be tantamount to judicial abuse, which is likely to diminish public confidence and ultimately erode the moral authority of the institution.
Finally, and most importantly, the apparent threat by the Chief Justice of Pakistan of charging dam opponents with treason is manifestly unfair. It militates against the fundamental right of free speech guaranteed by Article 19 of the Constitution. Article 184(3) of the Constitution that the Chief Justice relies on to assert the Court’s suo motu powers is intended to protect fundamental rights and not to negate them.
Dr. Tariq Hassan (SJD/LLM, Harvard Law School) is an attorney and an Advocate for the Supreme Court of Pakistan. He can be reached through email at hnhadvocates@gmail.com.
Suggested citation: Tariq Hassan, Abuse of Judicial Process, JURIST – Academic Commentary, Dec. 25, 2018, https://www.jurist.org/commentary/2018/12/tariq-hassan-abuse-judicial-process/
This article was prepared for publication by Ben Cohen, JURIST Section Editor. Please direct any questions or comments to him at commentary@jurist.org
