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Op-ed: Advisory Jurisdiction of Supreme Court

Author who is an Additional District Public Prosecutor discusses Advisory Jurisdiction of Supreme Court of Pakistan and does a comparative analysis with the Indian Jurisdiction.

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‘Jurisdiction’ generally can be understood as the “Power of a court to adjudicate cases and issue orders, or the territory within which a court or government agency may properly exercise its power”. However, hitherto, the most adoptive definition in Pakistan’s courts is that: “jurisdiction means the power of a court to administer justice according to the means provided by law and subject to limitations imposed by law”.

Be that as it may, in the constitution of the Islamic Republic of Pakistan, 1973, Part VII titled ‘The Judicature’ and Articles 175 to 212 deals with the jurisdiction of higher courts: Supreme Court of Pakistan, Federal Shariat Court, and five other High Courts. Ergo, the Supreme Court of Pakistan also has a jurisdiction that is too provided by the law and that is too subject to limitations imposed by the law: The Constitution, 1973.

In the constitution, the honorable Supreme Court of Pakistan has been bestowed with the following main jurisdictions to administer justice: Original Jurisdiction under Article 184; Appellate Jurisdiction under Article 185, and Advisory Jurisdiction under Article 186.

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Article 186 provides that: (1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration. (2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.

The Indian Supreme also possess akin jurisdiction under its Article 143 of Constitution of India, 1950 and, to best of my knowledge, it has almost decided eleven references: re Delhi Laws Act, 1912 in 1951; re Kerala Education Bill, 1957 in 1958; re Berubari Union and Exchange of enclaves in 1960; re Sea Customs Act, 1878 in 1963; re Keshav Singh in 1965; re Presidential Poll in 1974; re Special Courts Bill, 1978 in 1979; re Cauvery Water Disputes Tribunal in 1993; Special Reference No. 1 of 1993 (deals with Babri Mosque); Special Reference No. 1 of 1998, and Special Reference No. 1 of 2012.

Notwithstanding, the foremost question is: whether the Supreme Court is bound to answer each reference made to it under its advisory jurisdiction? The Supreme Court of India has had the view depending on the nature of the question: It may refuse to answer or to make a report on questions which are purely socio-economic or political questions and which have no relations whatever with any provisions of the Constitution—held by Das C.J. in Special Reference No. 1 of 1964. Likewise, in Special Reference No. 1 of 1993 full bench of the Supreme Court of India refused to answer a question that was based on a question of fact.

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However, if the reference deals with a question of law, then the wording of Article 186 (2) seems to be a mandatory provision of law: as it provides that “the Supreme Court shall consider a question so referred and report its opinion on the question to the President”. The word ‘shall’ is showing the intent of the legislature to consider as a mandatory provision of law.

Therefore, in Pakistan, in 2005 the Supreme Court of Pakistan in its full bench reference under its advisory jurisdiction has had the view that the president has the lawful authority being the custodian of the constitution and symbol of the head of federating units to seek the guidance of the court with no object except to avoid controversies and the ensure constitutional provisions. And it has also been held therein that the court would be bound to express its opinion upon any such reference, otherwise, the provisions of advisory jurisdictions will become redundant. And redundancy is a concept alien to law.

The next question is whether the opinion given under advisory jurisdiction has a binding effect like other decisions? The answer is affirmative. True that in advisory jurisdiction, it is not a decision between the two rival parties, yet it has a binding effect. It has been held by the Supreme Court of Pakistan in its 2005 advisory opinion that “from the languages of Article 189 and 190 of the Constitution, it is clear that opinion expressed by the Supreme Court under its Advisory Jurisdiction is required to be esteemed by all the organs of the State, therefore, it would not be fair to say that the opinion expressed by Supreme Court has no binding effect”.

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Similarly, in re Cauvery Water Disputes Tribunal in 1993, the Supreme Court of India opined that due weightage must be given to the opinions given under the advisory jurisdiction of the court. Yet, it is not an absolute opinion, since dissenting view also exists; therefore, it is still a question of law that requires to be answered by the Supreme Court, whether it has a binding effect like a precedent has under Article 189 or not.

Internationally the concept of advisory jurisdiction varies. In England, it has not been practiced therein for since long. In Australia, the concept has been declared ultra vires. However, in Canada, the advisory jurisdiction has been given the status of a binding precedent and a law. But the in America neither any provision regarding advisory jurisdiction exists in their Constitution nor the Supreme Court of America ever has allowed it. Notwithstanding, the International Court of Justice has given many important decisions under its advisory jurisdiction and played a vital role internationally through it.

Lastly, although some argue in opposition to advisory jurisdiction, yet arguments in its favour also exist. Those who are in disfavour, put forth a quote by C J Sir Edward Coke who characterized it as “auricular taking of opinions, single and apart, was new and dangerous…”.

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However, the answer to them is that: International Court of Justice has done tremendous work under its advisory jurisdiction and thus has avoided many international conflicts; without waiting for rival parties, with advance interpretation of law through the use of this jurisdiction, many future legal conflicts and discords can be avoided; through adequate use of advisory jurisdiction, litigation level can be reduced in countries like our where diversity is in abundance; without risking anyone’s life or liberty, property or rights, with ample usage of advisory jurisdiction of higher courts, bureaucratic shenanigans can be controlled, misuse and abuse of power at the hands of public functionaries can be reduced, and a layman can be saved from understanding and misunderstanding the complex and complicated interpretations of the law; lastly, where there are federating units in a country and provincial autonomy exits, conflicts of parochial and provincial in its nature can be resolved through the use of advisory jurisdiction of superior courts. And Pakistan requires it too.

The writer is an Additional District Public Prosecutor and writes on various topics. He holds an LL.M. from the Punjab University and teaches law. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.

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