Advisory Jurisdiction of Supreme Court

 

Advisory Jurisdiction of Supreme Court

‘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.

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 Presendial 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.    

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”. 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…”. 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.

 

Hafiz Muhammad Azeem

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.

 

Chemical castration

 

Chemical castration of sex offenders

Reprehensible, deplorable, despicable, extremely repugnant, and unforgivable, indefensible, outrageous, besides a non-compoundable, is the offence rape. However, how much detestable it is, it is still an offence and requires a proportionate punishment after a fair trial. These days, due to the horrifying and appalling motorway-incident of rape, and the surge in these cases, the whole country’s moral conscious is under anguish and pain.

Indeed no compensation except the appropriate punishment could heal the wounds. However, to granulate these anguishing wounds, the authorities at the helm is going to introduce chemical castration as punishment for sex offenders in Pakistan. Wherein, scientifically, certain chemical drugs are being used to reduce a man’s libido or sexual activity by lowering testosterone—the predominant sex hormone in males.

Historically, research has shown that this method of preventing rape is not the new one. In the 18^th century, one Dr. Harry Sharp of Indiana surgically castrated male prisoners, and thereafter the state adopted it as a legal punishment, especially for mentally handicapped prisoners. And in the United States during the 1800s, slaves were routinely castrated as a punishment if suspected of having relations with white women.

Furthermore, this type of castration has been used as a punishment against sex offenders since the 1940s. In the United States alone, around 13 states have adopted sterilization, of mentally incompetent persons, for sex offenders. In the recent past,  June 11, 2019, the American state of Alabama had enacted a law that would require, as a condition of parole, that some convicted child sex offenders undergo chemical castration. As per the law: those who raped the child under the age of 13 years will be injected with chemical-hormone-drugs before leaving prison on parole or otherwise.

Likewise, many other countries too have legislated chemical castration for sex offenders in their laws.  For instance, in the United Kingdom, this procedure is used against the culprits of homosexuality. In 2011 the Russian parliament also approved chemical castration as punishment for sex offenders in case of child abuse. Poland and Moldova follow the same for delinquents in child abuse cases. Indonesia in 2016 through a presidential decree allowed chemical castration in cases of child sex offenders. South Korea also had enacted this punishment in 2011 in its law.    

The prime raison dêtre of the induction of this punishment in our criminal administration of justice is the deterrence theory. Jeremy Bentham—one of the great philosophers—opined in his book “An Introduction to the Principles of Morals and Legislation (1789)” that every human being has his or her twin objects in life the achievement of pleasure and the avoidance of pain and through the deterrence of pain a person can be restrained from committing an act i.e. which in our case is the crime. Be that as it may, whether a certain punishment enables to create a deterrence is a question of empirical research and could not be answered theoretically.  

And secondly, the reasoning offered by the protagonists of this punishment includes the reduction in the level of recidivism—the tendency of a convicted criminal to re-offend. Besides, there are four explanations for why legislatures provided chemical castration as an available form of punishment for these offenders. it can be used for any or all of the following: a method of sterilization, a means of reducing the offender's sexual libido, a punitive form of punishment, and a treatment for certain medical conditions, like psychological addicts known as pedophiles—a person who is sexually attracted to children.   

But certainly, what are the scientific effects of chemical castration, a doctor perhaps could answer the best. However, generally speaking, research shows that testosterone is the major hormone associated with libido and sexual function, and it has been shown in various researches that violent sexual offenders have higher levels of androgens or testosterone. Notwithstanding, a clear cause-and-effect relationship between testosterone levels and sexual offending is also not certain.

So on the basis above said discussion, it can be concluded that no doubt child abuse, brutal sexual assaults, and rape cases have taken a shape of an epidemic in our country. Despite that chemical castration is always seen with doubt as proportionate punishment. Because in criminal administration of justice, the ‘proportionate punishment’ is grund norm inviolable and inalienable principle.

Moreover, it is also not certain yet that whether it has passed the certain tests: firstly, the constitutional test—is it not against the fundamental rights of citizens of Pakistan? Secondly, the human rights test—is it not against the human rights recognized universally by all civilized states? Thirdly, and above all, the Islamic injunctions test—is it legal under the injunctions of Islam to chemically castrate an offender?

Furthermore, not only these above-mentioned tests that are required to be answered by the authorities but also the certain other questions: the question of using the discretion by a court—is the judge medically able to decide for whom and for whom not the chemical castration would be an appropriate punishment?  The question of the mode and manner of its execution. Then the common sense question of its physical, psychological, philosophical, social, and medical consequences—including the side effects of the procedure. These all questions must be answered first before the implementation of chemical castration as a punishment. Since it an axiomatic quote, it will be of no use to cry over spilled milk.    

  

Hafiz Muhammad Azeem.

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.