Tabling of 24th Amendment vital but ill-timed

ISLAMABAD: The proposed 24th constitution amendment, tabled by the government in the National Assembly, is a well-meaning and directly needed but ill-timed piece of legislation.

It grants the aggrieved party the right of appeal against an order passed by a Supreme Court bench under article 184(3) before a larger panel of judges of the same highest judicial forum within thirty days of the passing of the first ruling.

Its introduction in the Lower House of Parliament at this point of time gives the impression as if it has been framed and moved in view of the ongoing proceedings at the top court against Prime Minister Nawaz Sharif and his children on account of offshore companies and London flats.

However, the amendment doesn’t touch another comprehensive article 199 which also vests somewhat similar powers in high courts. It is also meant for enforcement of fundamental rights etc. However, it says the right to move a high court for enforcement of fundamental rights shall not be abridged (amended) while there is no such provision in article 184(3).

But still almost all the parliamentary parties and groups are likely to support the amendment because they feel that the aggrieved party should not be deprived of the right of appeal against the orders of the apex court in suo motu cases.

The Pakistan People’s Party (PPP), which for the time being is expressing its reservations about the amendment for political reasons, is expected to vote for it because it has always been critical of such powers of the Supreme Court.

The frequency of application of original jurisdiction of the top court under article 184(3) for enforcement of fundamental rights was very elaborate when Iftikhar Muhammad Chaudhry had presided over the judicial body. Later, it had been used very sparingly.

While one group of politicians had been rejoicing the abundant suo motu notices taken by the then apex court, the PPP government was deeply exasperated. After the retirement of Iftikhar Chaudhry, this practice has been largely given up by the Supreme Court.

The present petitions filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan and others against the premier also invoked article 184(3) for enforcement of fundamental rights. The decisions handed down by the court on suo motu notices and petitions filed under this provision are absolutely final because it is the highest judicial forum. Under the Constitution, review petitions are allowed against such decisions, which, however, are heard by the same bench that had delivered the first verdict. There is no instance when the original rulings were reversed in review. Even otherwise, in review only technical errors are to be pointed out and the previous judgments can’t be fundamentally altered or reversed.

Legal experts have been questioning the non-availability of right of appeal and stressing that the liberal use of suo motu powers be avoided because the aggrieved parties did not have any other forum where they can call such decisions into question. They quote article 10A which says that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. It was introduced by the famous 18th amendment.

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.

They say that in the case of initiation of a case 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. But it is also a hard fact that the litigation lingers on for years because of appeals with the result that even the parties having absolutely genuine cases fail to get justice at an early date.

Article 184 (3) says without prejudice to the provisions of 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 is involved, have the power to make an order of the nature mentioned in the said Article.

The statement of object of the proposed 24th amendment says that at present there is no provision for appeal against an order of the Supreme Court in exercise of its original jurisdiction under clause (3) of article 184. Since such an order invokes a question of public importance with reference to enforcement of fundamental rights, an aggrieved party should have the right of appeal, which shall also be in conformity with the fundamental right to fair-trial and due process conferred by article 10A of the constitution.