Article 184 – interpreting it paradoxically

As far as the interpretation of the article 184 is concerned, common-sense understanding is altogether different. It has three clauses that form the whole of this article. Its title is: The Original Jurisdiction of Supreme Court.

The first clause states: (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more governments.

The second clause states: (2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.

The third and the last clause states: (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.

This article 184 falls in the Part VII of the constitution: The Judicature, and its Chapter – 2: The Supreme Court of Pakistan. This part’s Chapter – 1 concerns with The Courts.

In interpreting the clause three of this article, paramount importance needs to be attached to the following two questions:

  1. i) Is clause three merely a clause of an article?
  2. ii) Is clause three an independent article?

Obviously, clause three is merely a clause of the Article 184; nothing else, nothing more or nothing less than that. It has no independent status like the other articles of the constitution.

Let there be something that helps distinguish an article from a clause or a clause of an article from its article. If an article confers a specific power to an institution and if there is or are any clause or clauses attached to it, the existence of those clauses means that conferred power is being qualified, confined, or so on and so forth. So a clause is there to explain the power conferred and thus it 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 that is part of the article is removed or not to be taken into account while interpreting that article that act is tantamount to harming the content and meaning 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 understood and interpreted but in conjunction with other clauses, at the least.

Otherwise, 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 and it should be taken as a meaningful act of them.

Under the circumstances, a question arises: How to interpret, then, an article with one or two or more clauses attached to it. First and foremost, and the logical rigor demands that, that the first clause needs to be taken as the main clause while positing meaning to the whole article, and that other clause/clauses require to be considered as helping the meaning of that article to be determined, clarified, specified, qualified, etc, accordingly.

In no way, and in no case, the second or third or other such 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. The Panama Case is a case in point. The third clause of the Article 184 is being, as has been the case in the past, 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, reading the clause three of Article 184 separately and independently from the other first two clauses means to give 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! And whatever judgments the Supreme Court passes under that article using that clause, there is no leave to appeal against it available. That raises questions on the use of this article and this clause by the Supreme Court, and the judgment passed thereunder.

One objection that may impede the above-discussed understanding or interpretation of Article 184 needs to be considered here. That objection may thus be described: That all the clauses of an article of the constitution, be they more than one, enjoy a separate and independent status to an extent where actually they are there to 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.

To me, 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.

Note: This piece is a part of a lengthy paper, Conflicts: Intra-Elite or Civil-Military: A Tract in the Politics of Deception.

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