.. by Barrister Asad ul Mulk

Laxity on part of the Supreme Court to put in place an ‘anticipatory injunction’ to prevent the coming into force of the Constitution (Twenty Sixth Amendment) Act, 2024 could prove calamitous.

Should the Act come into force, it will obviously alter the text of the Constitution and thereafter the determination of any constitutional question, qua the question of the vires of the Act itself, will ultimately be decided by the newly set-up Federal Constitutional Court and not the Supreme Court. If the Supreme Court believes that it can issue an injunction after the Act has been passed, then it must be alive to the possibility that by then too much water might have flown under the bridge. To borrow a phrase from Professor HLA Hart from his book The Concept of Law; the ‘rule of recognition’ of the legal system, may by then, not recognize the Supreme Court as having the power to issue any injunction in constitutional matters, and thus the officials of the legal system may disregard any injunction the Supreme Court issues in this respect, especially if there is a Federal Constitutional Court which will suspend contempt notices issued by the Supreme Court. We have already seen this happen in Poland and South Africa.

In The Federalist 78 – titled The Judicial Department one of America’s founding father Alexander Hamilton wrote “The judiciary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”.It is not inconceivable to contemplate the police, the forces, the bureaucracy, constitutional and regulatory bodies, in other words the officials of the legal system recognizing and acceding to the ‘writs’ issued the newly set up Federal Constitutional Court. It is not inconceivable because firstly; the memory of the police holding the then Chief Justice of Pakistan Iftikhar Muhammad Chaudhry (whatever his shortcomings) by the hair, and heaving him around like a sack of potatoes and preventing him from discharging his duties is ‘living memory’. And secondly, because the concept of separate Constitutional Courts is not alien to jurisprudence and has existed in Germany, Italy, Spain, Austria, South Africa, Russia, Turkey, Portugal, the Czech Republic and Poland amongst others. Though the motive for setting up the Constitutional Courts has often been noble and seldom nefarious.

Thus, if the orders of the Supreme Court in constitutional matters lose their efficacy, the corresponding legal power will be lost. In such a scenario, the grund-norm of the legal system will no longer be that ‘coercive acts ought to be applied in accordance with the Constitution of Islamic Republic of Pakistan, 1973 as amended till the Twenty Fifth Amendment but rather as amended till the Twenty Sixth Amendment’. If this diametrical shift takes place upon the coming into force of the Constitution (Twenty Sixth Amendment) Act, 2024, then the prospect of the Supreme Court reviewing the said legislation or striking it down, even if all seventeen Judges stand in unison, shall be lost forever. — Barrister Asad-ul-Mulk, 17 Sep 2024