AT PENPOINT
Someone, somewhere, must miss the good old Act of Attainder, in which the House of Commons passed a bill saying that so-and-so was a dastard and a traitor, and was to be executed, and that his heirs were not to inherit any of his titles or estates. After all, Parliament being supreme, it will be expressing the will of the people, without any of the nonsense of evidence, witnesses or due process.
Instead, we have had to venture on the uncertain territory of the 26th Amendment, where it is not certain that there will be positive results in the process, which will lead to due punishment for the perpetrators of the attackers of 9 May 2023. One of the first steps has been to ensure that no judicial revolution takes place. There was the elevation of Mr Justice Yahya Afridi to the position of Chief Justice of Pakistan, and the second was the formation of the Constitutional Benches, from which potential judicial revolutionaries were excluded, just as it was ensured they never became CJP.
That was meant to remove from the entire court cases involving fundamental rights to the Constitutional Benches. However, as any lawyer, or even anyone who has been involved in a lawsuit, knows, it is almost impossible to prevent a constitutional colour being given to a case.
This might be assumed to apply to criminal law, because the right to liberty is often infringed (or claimed to be infringed). Also, whereas constitutional matters are rarely raised at the trial stage, appeals are frequently on the ground that due process has not been observed, and invoke the writ jurisdiction of the superior court.
One of the leading constitutional cases of Pakistan, the one which validated the Ayub Martial Law and which laid down the Doctrine of Necessity, the Dosso case, was actually a criminal case, in which Ghulam Muhammad Dosso had argued that the Frontier Crime Regulations (under which he had been sentenced to death for murder) were unconstitutional. The Lahore High Court said the FCR denied him fundamental rights as guaranteed by the 1956 Constitution. The Supreme Court, on the federal government’s appeal, said that there has been a coup and a new legal order, under which the old laws held sway under the Doctrine of Necessity only where they were mentioned. The FCR were mentioned, the Constitution was not; Dosso’s conviction would stand.
On the other hand, civil law also involves the Constitution. It should not be forgotten that the cases in which the Indian Supreme Court recognized and developed the Basic Structure Doctrine, which opponents of the 26th Amendment intend to use to challenge it, were civil cases, in which those using the Doctrine argued that their property rights had been violated. Civil suits do not take constitutional grounds at the trial stage, but often do so on appeal.
As the writ jurisdiction has been included as a subject for the Constitutional Benches, a wide swatch of law is included, for lawyers challenge many legal proceedings, including administrative decisions, on the ground of absence of jurisdiction: that the authority making the decision did not have the authority to do so.
The jurisdiction under which writs are issued, under which orders of mandamus, quo warrant and habeas corpus are passed, are now to be exercised by the constitutional benches of the high courts, when they are set up. Appeals from such writs will go to the Supreme Court’s benches.
The 26th Amendment was meant to achieve certain political ends, not improve the justice system. Frankly, that is not a situation unfamiliar to the legal community. It will adapt to the new situation, and will rely on its ability to weather the storm. The independence of the judiciary so far has been wrested from the government, not been granted freely.
The Constitutional Benches were supposed to release pressure from the Courts, helping them reduce their backlog. However, there are already signs of pressure being built up, as the Supreme Court Registrar has begun setting aside cases for the Benches when they begin to operate. It should be noted that no assembly has passed the enabling resolution necessary for setting up a constitutional bench in its high court. While no orders have been made to the registrars, lawyers and judges alike will be keeping a weather eye open on developments, as will the more litigious laymen.
At this point, there is a natural division. However, lawyers have to seek out what is best for their client. Will they opt for a constitutional bench, or will they restrict themselves to the appellate side? Many factors are involved, but it should not be lost sight of that appeals will be prepared by lawyers, and they will determine whether the appeal contains the sort of references to the Constitution that will make it go to a constitutional bench or go before the purely appellate judges.
It should be recognized that the lawyer has to plead all possible grounds, and is going to include them in his petition. This may include constitutional grounds. There is a good reason for this, because the Constitution is the basic law, with which all other laws have to conform. If the lawyer thinks the law applied was not in accordance with the Constitution, he will include this as a ground. Also, the Constitution supersedes other laws or executive actions. He may not have to challenge a law, merely an action, where he will show that action, though permitted by law, violates a constitutional provision.
Apparently, as soon as an article of the Constitution is cited, the case will land up before the Constitutional Benches. If the Benches develop a reputation as relief-giving, as individual judges sometimes do, lawyers will queue up to get their cases placed before them, ensuring that the necessary adjustment is made to the plaint. It should be noted that an appeal against trial court judgement containing ordinary grounds for appeal to the high court, could then contain constitutional grounds on appeal to the Supreme Court.
If the process can be abused, it will be. It has been shown by the PTI’s joining the Supreme Judicial Commission how tempting it is to appoint judges, to form constitutional benches, and exercise suo motu jurisdiction. This is despite its reservations about the 26th Amendment, the Parliament that passed it, and the parties in it. The legal community has shown its members are eager enough for elevation, and the increase in the number of Supreme Court judges will allow bot just a packing of the Court with its nominees, but a large number of elevations to the high courts. The implication is that either the number of high court judges be increased, or at least the vacancies be filled.
The most famous episode of packing a Supreme Court, in the USA, didn’t happen. When the Supreme Court struck down as unconstitutional certain pieces of legislation, which President Franklin Delano Roosevelt considered intrinsic to his New Deal, meant to bring the USA out of the Great Depression, in 1937, in his second term, he proposed an act allowing him to appoint a judge for every judge over the age of 70 (US Supreme Court judges are appointed for life). This would have allowed him to appoint six judges. The bill died in the Senate Judiciary Committee. As happened, here a government bill would just be passed.
The 26th Amendment was meant to achieve certain political ends, not improve the justice system. Frankly, that is not a situation unfamiliar to the legal community. It will adapt to the new situation, and will rely on its ability to weather the storm. The independence of the judiciary so far has been wrested from the government, now been granted freely.
