Bill proposes right of appeal in Article 184(3)

ISLAMABAD: A set of constitutional amendments, proposed by an opposition lawmaker, seeks significant changes in Article 184(3), which has been repeatedly invoked by the Supreme Court for the enforcement of fundamental rights leading to the disqualification of several legislators including deposed Prime Minister Nawaz Sharif.

Pakistan People’s Party (PPP) Senator and former federal law minister Farooq H Naek has moved the constitutional amendment bill in the Upper House of Parliament. The proposed legislation was tabled a few days before the Supreme Court Bar Association (SCBA) and its president Ahsan Bhoon filed a petition in the apex court, praying that the right of appeal be provided in Article 184(3) and the lifetime ban on contesting elections be dispensed with.

The amendments, which propose changes in eight constitutional articles, also suggest a three-year increase in the retirement age of high court judges like Supreme Court justices, and provide for the input of the parliamentary committee in the appointment of additional and ad-hoc judges and an acting high court chief justice.

The change in Article 184(3) says a Supreme Court order under this provision will be made by a three-member bench and an appeal against it, filed within 30 days, will be heard by a five-judge panel to be decided within 60 days. Additionally, if such an appeal has been submitted, the order in question will not be implemented pending the decision of the appeal.

The existing Article 184(3) says 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 it.

A legal debate has been going on since long to provide for the hearing of a suo motu notice under the original jurisdiction of the Supreme Court under this article by more than one judge and the right of appeal so that the aggrieved party can agitate such a judgment at a larger judicial forum. A number of senior reputed lawyers have argued against the present scheme in Article 184(3) and stressed that it needs to be changed to provide relief to the parties against whom this provision is invoked. They say that the right of appeal is the basic right that must be available to the aggrieved parties.

Another amendment in Article 175A that relates to judges’ appointment says the president will appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan and “other judges of the apex court in accordance with their seniority which will be determined with reference to their dates of appointment as high court judge and in case the dates of appointment are the same with reference to their age”.

Yet another amendment in Article 196 says only the senior most high court judge will be nominated as the acting chief justice if the post of the chief justice is vacant or he is absent or unable to perform his functions. According to the present provision, one of the other high court judges or a Supreme Court justice may be nominated as the acting chief justice.

The bill also seeks an amendment in Article 209(3) relating to the Supreme Judicial Council (SJC). It says the SJC will inquire into the capacity or conduct of a judge to remain as such within a period of 90 days from the receipt of information from any source or the president and thereafter forward its report to the president.

Currently, there is no timeframe given in the Constitution for the start and conclusion of proceedings by the SJC against a superior court judge accused of misconduct and wrongdoing. The statement of object and reasons of the bill says these amendments are in the furtherance of principles of policy to ensure a fair and organized system of judicial appointments and in turn to improve the judicial system of Pakistan.