AT PENPOINT

Someone, somewhere must be missing the old Act of Attainder, where the House of Commons passed a bill saying that so-and-so was a scoundrel 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 express the will of the people, without any nonsense of evidence, witnesses or due process.

Instead, we have had to venture into the uncertain territory of the 26th Amendment, where it is not certain that there will be positive outcomes in the trial that will lead to due punishment for the perpetrators of the May 9, 2023 attackers. One of the first steps were to ensure that no judicial revolution takes place. There was the elevation of Mr. Justice Yahya Afridi to the post of Chief Justice of Pakistan and the second was the formation of constitutional benches, from which potential revolutionaries in the judiciary were excluded as it was ensured that they never became CJPs.

This was meant to remove from the entire court cases involving fundamental rights to constitutional benches. However, as any lawyer knows, or indeed anyone who has been involved in a trial, it is nearly impossible to prevent a case from being given a constitutional color.

One might assume that this applies to criminal law, as the right to liberty is often violated (or alleged to be violated). Also, while constitutional issues are rarely raised at the trial stage, appeals are frequently on the grounds that due process was not observed and invoke the writ jurisdiction of the superior court.

One of Pakistan’s leading constitutional cases, the one that validated Ayub Martial Law and established the Doctrine of Necessity, the Dosso case, was actually a criminal case, in which Ghulam Muhammad Dosso argued that the Frontier Crime Regulations (under who had been sentenced to death for murder) were unconstitutional. The Lahore High Court said that the FCR had denied him the fundamental rights guaranteed by the 1956 Constitution. The Supreme Court, on the appeal of the federal government, said that there was a coup d’état and a new legal order, under which the old laws prevailed under the Doctrine Necessities only where they were mentioned. The FCR was mentioned, the Constitution was not; Dosso’s conviction will stand.

On the other hand, civil law also involves the Constitution. It must not be forgotten that the cases in which the Indian Supreme Court recognized and developed the Basic Structure Doctrine, which the opponents of the 26th Amendment intend to use to challenge it, were civil cases, in which those using the Doctrine have claimed that their property rights had been violated. Civil suits do not rely on constitutional grounds at trial, but often do so on appeal.

Since writ jurisdiction has been included as a subject for the Constitutional Chambers, a wide range of law is included, because lawyers challenge many judicial proceedings, including administrative decisions, on the grounds of lack of jurisdiction: that the authority that made the decision does not have the authority to do this.

The jurisdiction under which writs of mandamus, quo warrant and habeas corpus are issued is now to be exercised by the constitutional benches of the high courts, when constituted. Appeals from such acts will reach the Supreme Court benches.

The 26th Amendment was intended to achieve certain political ends, not to improve the justice system. Frankly, this is not a situation unknown to the legal community. It will adapt to the new situation and rely on its ability to weather the storm. So far, the independence of the judiciary has been wrested from the government, not freely given.

The Constitutional Banks were supposed to release pressure from the courts, helping them to reduce their backlog. However, there are already signs of increasing pressure, as the Supreme Court clerk has started striking out cases for banks when they start operating. It should be noted that no assembly has passed the enabling resolution necessary for the establishment of a constitutional bank in its high court. Although no orders have been given to clerks, lawyers and judges alike will keep an eye on developments, as will the more litigious laymen.

At this point, there is a natural division. However, lawyers must seek what is best for their client. Will they opt for a constitutional bench or limit themselves to the appellate side? Many factors are involved, but it must not be lost sight of that the appeals will be prepared by lawyers, and they will determine whether the appeal contains the kind of references to the Constitution that would make it go to the constitutional court or go before a pure tribunal. appeal judges.

It must be recognized that the lawyer must plead all possible grounds and will include them in his petition. This may include constitutional grounds. There is a good reason for this because the Constitution is the basic law to which all other laws must conform. If the lawyer believes that the law applied was not in accordance with the Constitution, he will include this as grounds. The Constitution also supersedes other laws or executive actions. He may not have to challenge a law, just an action, in which he will show that the action, although permitted by law, violates a constitutional provision.

Apparently, as soon as an article of the Constitution is cited, the case will end up before the Constitutional Benches. If banks develop a reputation for helpfulness, as individual judges sometimes do, lawyers will line up to place their cases before them, making sure the necessary adjustments to the claim are made. It should be noted that an appeal against the judgment of the trial court which contains ordinary grounds of appeal to the high court, could then contain constitutional grounds in the appeal to the Supreme Court.

If the process can be abused, it will be. The PTI’s accession to the Supreme Judicial Commission has shown how tempting it is to appoint judges, form constitutional benches and exercise its own jurisdiction. This is despite his reservations about the 26th Amendment, the Parliament that passed it and the parties within it. The legal community has shown that its members are eager enough for elevation, and increasing the number of Supreme Court justices will only allow for a packing of the Court with nominees, but a large number of elevations to the high courts. The implication is that either the number of high court judges is increased or at least the vacancies will be filled.

The most famous episode of packing a US Supreme Court did not happen. When the Supreme Court struck down as unconstitutional certain pieces of legislation that President Franklin Delano Roosevelt considered intrinsic to his New Deal, designed to lift the US out of the Great Depression, in 1937, in his second term, he proposed an act that allows him to appoint one justice for every justice over 70 (US Supreme Court justices are appointed for life). This would have allowed him to appoint six judges. The bill died in the Senate Judiciary Committee. As it happened, a government bill had just been passed here.

The 26th Amendment was intended to achieve certain political ends, not to improve the justice system. Frankly, this is not a situation unknown to the legal community. It will adapt to the new situation and rely on its ability to weather the storm. Hitherto the independence of the judiciary has been wrested from the government, now it is freely given.