Dr Khalil Ahmed
AS far as interpretation of the article 184 is concerned, common-sense understanding is altogether different. Its title is, The Original Jurisdiction of Supreme Court, and it consists of three clauses: (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more governments. (2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only. (3) Without prejudice to 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. In interpreting this or any article of the constitution, paramount importance needs to be attached to the following two questions: i) Is clause three merely a clause of an article? ii) Is clause three an independent article? Obviously, clause three is merely a clause of the Article 184, with no independent status like an article of the constitution. Here it needs to be asked how to distinguish an article from a clause. If an article confers a specific power to an institution and if there is one or more clauses attached to it, the existence of those clauses means that conferred power has been qualified. So a clause is there to explain the power conferred and thus enjoys no independent status.
However, as is the case with all the articles of the constitution, and here is the case with the Article 184, it’s a whole consisting of three clauses, and if any clause is removed or not to be taken into account while interpreting that article that act is tantamount to harming the purpose of the whole article. That is, all the clauses of an article combined together form the meaning of that article; no clause may separately and independently be interpreted but in conjunction with other clauses. In case a clause is interpreted separately and independently of other clause/clauses of the same article, that act defies the presence of that clause in that article as one of its clauses. Moreover, it may be argued that if such is the case that a clause which is interpreted separately and independently of other clause/clauses of the same article, the framers of the constitution could have put it as an independent article of the constitution. They did not do so should be taken as a meaningful act of them. So the question is: How to interpret an article with one or two or more clauses attached to it. The first clause needs to be taken as the main clause while positing meaning to the whole article; and other clause/clauses require to be considered as helping the meaning of that article to be determined accordingly.
In no case, second or third or other clauses of an article may be construed to nullify the meaning of the first and the main clause, which has been the case for long with Article 184 of the constitution. In the “Panama Case,” the third clause of the Article 184 has been interpreted separately and independently of its first two clauses the first of which deals with its original jurisdiction to adjudicate in case of any dispute between governments, that is federal and provincial governments, and the second clause qualifies the scope of its judgments in such cases, i.e. it shall pronounce declaratory judgments only. No doubt, a flawed reading of clause three of Article 184 separately and independently from the other first two clauses gives the Supreme Court such power that it may take up the cases that it considers to be of public importance; and it is this power that has played havoc with the political set-up whatever it was or it is. That’s an overriding power! Also, whatever judgments the Supreme Court passes under that article using that clause, there is no leave to appeal against it available. One objection may impede the above-discussed understanding of Article 184. It may be described thus: That all the clauses of an article of the constitution enjoy a separate and independent status to an extent where they enlist this or that jurisdiction or power of an institution.
In case, that objection is admitted as valid, it will open a door for all the clauses of all the articles of the constitution to be considered anew as having and enjoying independent status of an article, as is the case with the Article 184, the clause three of which has acquired for the Supreme Court an independent status, akin to an independent article of the constitution. Thus the clause three of Article 184 needs to be read and interpreted in conjunction with its first two clauses, which being the first in order determine the meaning of the clause three; not that the clause three determines its own meaning independently. That is, the clause three empowers the Supreme Court only to consider cases of ‘public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II, which arise due to the disputes between the governments. Or, in case any other interpretation of the clause three is to be reached at, that must conform to the meaning that the first two clauses of this article are there to intend.
— The writer, a PhD in Philosophy, is political thinker and author based in Lahore.
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Dr Khalil Ahmed