By Dr ijlal Ali Shah.
24th constitutional amendment bill has recently been moved in the National Assembly by PML-N. The proposed amendment aims at introducing two new clauses to the given article 184 of constitution, providing the right to appeal against the orders of the Supreme Court. Government would need two-thirds of majority to pass this bill from both the houses. In the Lower House, the proposed bill is expected to be passed without disapproval because of PML-N’s majority but in the Upper House, PPP holds significance. Uptill now, PPP is expected to lend a helping hand and is there to support PML-N’s stance over the bill despite of having reservations about its timing, understanding its malafide intentions and the motives, PML-N has behind the proposed amendment.
“Right of appeal in suo motu cases was also a demand of the PPP and we will support it,” a PPP’s representative stated, the other day. Pakistan Tehreek-e-Insaf is contemplating to oppose it significantly but they would have to join hands with PPP. They consider it as a political maneuvering, just to save the skin of Prime Minister rather than its legality. Despite of realizing its significance, PTI alleged that the given amendment was based on ill-intention to escape accountability and claimed that it aimed at preempting any possible decision against government by Supreme Court in the Panama Leaks case. Some suggest that as a result of this proposed amendment, the litigation would linger on for years because of appeals against the verdict that even the parties having absolutely genuine cases would fail to get justice at an early date while some consider it as an encroachment upon the prerogatives of apex court.
How it proves to be a good move;-
24th constitutional amendment is a well-meaning, directly needed but an ill-timed move by the government. Presently, the decision handed down by the Supreme Court cannot be over-turned and is final, since it represents highest tier of judiciary. There is no provision for appealing against the orders of Supreme Court under clause 3 of article 184 of constitution. Such an order that can’t be appealed against, invokes a question with reference to fundamental rights, a citizen enjoys in an Islamic Republic. Under the constitution, review petitions are allowed against the decisions of apex court which, however, are looked into by the same bench that gave the first verdict and in this reviewing procedure, the given bench only looks into technical errors of the given verdict and there is no such consideration of altering it. There has been no instance where the decision had been reversed by the original bench.
The proposed amendment will introduce two new clauses (4 & 5) to article 184. Under the clause 4 of article 184, the aggrieved party would have the right to appeal against the verdict of Supreme Court and this has to be done within 30 days. Clause 5 provides an extra leverage to the aggrieved party as the appeal filed would be heard by a bench larger than the one that passed the first verdict.
Legal experts have been questioning it time and again because there has been a liberal use of suo moto powers and the given aggrieved party had no other choice than to bow down before the verdict. Article 10A, gives the right to every citizen who has been accused, to undergo a fair trial and due process and the given privilege under clause 3 of article 184, enjoyed by the apex court, and seems unjust according to many experts. These experts say that an important feature of Pakistan’s justice system is that it provides different tiers of appeals. Thus, they add, when a case reaches the Supreme Court in appeal, it is thoroughly examined by at least one or two judicial forums. At the apex court, it is again fully scrutinized and all the requirements of justice are comprehensively met. In the case of initiation by the Supreme Court under its original jurisdiction as per article 184(3), the aggrieved party has no judicial body available to appeal against its decision. They also point out that human error is possible at any level of the judicial system, which can only be corrected if a proper forum is available. It could have been a step taken for self-perseveration but in the the long run, it would definitely be having brighter implications.
Right to appeal against the order of apex court is important for the fulfillment of ‘due process’ and when the case is of such significance, which is to decide the fate of the given Premier of a state, given the right to appeal against the verdict, seems judicious. Since the issue was taken up by the Supreme Court after the pressure put in by PTI, it would be very just if PML-N enjoys such leverage. The two proposed clauses also seem logical when there has been such a liberal use of suo moto action in the past. Who could forget the sacking of sitting PM during PPP tenure by a three-member bench. Similarly, it also aims at curtailing judicial power to some extent, considering the fact that suo moto have been taken in past on mundane matters which I consider, as matters of governance that are to be taken care by the parliament. There had to be a line drawn on suo moto jurisdictions but even this would be sufficient for the aggrieved party and in restoring confidence in our judiciary.
The author hails from Abbottabad. He is an MBBS student at Ayub Medical College ATD. A humanist, columnist and a political media analyst. He is the member Youth Parliament Pakistan under PILDAT. He can be reached on fb.com /ShahIjlal and he Tweets @shahaliijlal