SC: jurisdiction & justice – I
-File PhotoIn the wake of disqualification of three-times elected Prime Minister, Mian Muhammad Nawaz Sharif, directly by Supreme Court of Pakistan, a heated debate is going on as to whether the highest court of the country has jurisdiction to act as a trial court while exercising jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan [hereinafter "the Constitution">. The main legal argument against the decision -though many are contesting it on facts and review petitions have also been filed by respondents on multiple grounds-is that it is violative of Article 10A [right to fair trial]. Article 10A, inserted through the Eighteenth Constitutional Amendment, guarantees a fundamental right 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".
In this paper, we are not discussing the political consequences of the judgment, but confining the discussion on purely legal issues, especially the scope of jurisdiction of the Supreme Court under the Constitution. In Imran Khan v Mian Nawaz Sharif & others [Constitutional Petition No 29 of 2016], the apex court has extensively dealt with this issue. It should also be remembered that in this case before the commencement of hearings, both petitioners and respondents, on the order of the court, gave their consent in writing that they had no objection on inquisitorial jurisdiction, exercisable by Supreme Court, under Article 184(3) of the Constitution. The objections on the jurisdiction of the court by the respondents in the event of the adverse order are thus not understandable as they participated fully in the proceedings and presented thousands of documents in their support and/or for the purpose of refuting the charges levelled against them.
The establishment, jurisdiction and powers of Supreme Court, conferred by the supreme law of the land, are briefly summarized on its website as below:
In the Panama Case, one very important question raised was: "What is the scope of the proceedings before Supreme Court under Article 184(3) of the Constitution and whether disputed or intricate questions of fact can be decided in such proceedings with or without recording of evidence"?
The answers to the above question, given in the order by all the five members of the bench in their separate notes, address all the objections of the respondents. However, in a section of media, political rallies and gatherings, an impression is being continuously given that the apex court exceeded its jurisdiction. This claim of Nawaz Sharif, his supporters and some members of the legal fraternity is legally and factually wrong.
The following points, facts, arguments, counter arguments and conclusions mentioned in the judgement of April 20, 2017 itself testify that objections raised vis-Ã -vis scope and import of Article 10A, Article 184(3) and Article 187(1) were discussed and adjudicated and the order is strictly in accordance with law, and there is no violation of the Constitution as alleged by the respondents, and their supporters:
1. On the issue of the scope of jurisdiction under Article 184(3) of the Constitution, the petitioners placed reliance on the cases of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997), Workers' Party Pakistan through Akhtar Hussain, Advocate, General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681), Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others (PLD 2012 SC 774), Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132), Watan Party and others v. Federation of Pakistan and others (PLD 2012 SC 292) and Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642).
2. It was also argued by the petitioners that in an appropriate case, the Supreme Court could record evidence so as to ascertain a fact as held in the case of Air Marshal Muhammad Asghar Khan (retd) v. General Mirza Aslam Beg (retd), former Chief of Army Staff and others (PLD 2013 SC 1).
3. A valid point raised by Makhdoom Ali Khan, the counsel of Mian Muhammad Nawaz Sharif, was that the bar for disqualification under Article 62(1)(f) of the Constitution was higher than the bar for disqualification under section 99(1)(f) of the Representation of the People Act, 1976 [ROPA] because for the constitutional disqualification a prior declaration by a court of law is required whereas the said requirement is not there for the statutory disqualification. The Court resorted to both provisions for disqualifying Nawaz Sharif in its final order of July 28, 2017. The reasons given for the same can be debated and disagreements within the framework of law should be welcomed. However, derogatory remarks and scandalizing the apex court for political ends should be avoided.
(To be continued)
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)
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Article (1) There shall be a Establishment and
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175 Supreme Court of Pakistan, a High Jurisdiction of
Court for each Province and such other Courts
Courts as may be established by law.
(2) No Court shall have any
jurisdiction save as is or may be
conferred on it by the Constitution or
by or under any law.
(3) The Judiciary shall be
separated progressively from the
Executive within fourteen years
from the commencing day.
Article The Supreme Court shall consist of Constitution of
176 a Chief Justice to be known as the Supreme Court
Chief Justice of Pakistan and so many
other Judges as may be determined by
Act of Majlis-I-Shoora (Parliament) or,
until so determined, as may be fixed by
the President.
Article (1) The Chief Justice of Pakistan shall Appointment of
177 be appointed by the President, and Supreme Court
each of the other Judges shall be Judges
appointed by the President after
consultation with the Chief Justice.
(2) A person shall not be appointed a
Judge of the Supreme Court unless he
is a citizen of Pakistan; and-
(a) has for a period of, or for periods
aggregating, not less than five years
been a judge of a High Court
(including High Court which existed
in Pakistan at any time before the
commencing day); or
(b) has for a period of, or for periods
aggregating, not less than fifteen years
been an Advocate of a High Court
(including a High Court which existed in
Pakistan at any time before the
commencing day).
Article Before entering upon office, the Chief Oath of Office
178 Justice of Pakistan shall make before
the President, and any other Judge of the
Supreme Court shall make before the Chief
Justice, oath in the form set out in
the Third Schedule.
Article A Judge of the Supreme Court shall Retiring Age
179 hold office until he attains the age of
sixty-five years, unless he sooner resigns or
is removed from office in accordance
with the Constitution.
Article At any time when- Acting Chief
180 (a) the Office of Chief Justice of Justice
Pakistan is vacant; or
(b) the Chief Justice of Pakistan is
absent or is unable to perform the
functions of his office due to any other cause,
(c) the President shall appoint [the
most senior of the other Judges of
the Supreme Court] to act as Chief
Justice of Pakistan.
Article
181 (1) At any time when- Acting Judges
(a) the office of a Judge of the
Supreme Court is vacant; or
(b) a Judge of the Supreme Court is
absent or is unable to perform the
functions of his office due to any other cause,
the President may, in the manner
provided in clause (1) of Article 177,
appoint a Judge of a High Court who is
qualified for appointment as a Judge of
the Supreme Court to act temporarily
as a Judge of the Supreme Court.
[Explanation._ In this clause 'Judge of a
High Court' includes a person who has
retired as a Judge of a High Court].
(2) An appointment under this Article
shall continue in force until it is revoked
by the President.
Article If at any time it is not possible for want Appointment of
182 of quorum of Judges of the Supreme Court Ad-hoc Judges
to hold or continue any sitting of the Court,
or for any other reason it is necessary to
increase temporarily the number of
Judges of the Supreme Court, the Chief
Justice of Pakistan may, in writing,-
(a) With the approval of the President,
request any person who has held the
office of a Judge of that Court and
since whose ceasing to hold that office
three years have not elapsed; or
(b) with the approval of the President and
with the consent of the Chief Justice of a
High Court, require a Judge of that
Court qualified for appointment as a Judge
of the Supreme Court, to attend sittings of
the Supreme Court as an ad hoc Judge for
such period as may be necessary and
while so attending an ad hoc Judge shall
have the same power and jurisdiction
as a Judge of the Supreme Court.
Article (1) The permanent seat of the Supreme Seat of the Supreme
183 Court shall, subject to clause (3), Court
be at Islamabad.
(2) The Supreme Court may from time
to time sit in such other places as the
Chief Justice of Pakistan, with the
approval of the President, may appoint.
(3) Until provision is made for
establishing the Supreme Court at
Islamabad, the seat of the Court shall
be at such place as the President may appoint.
Article (1) The Supreme Court shall, to the Original
184 exclusion of every other Court, have Jurisdiction of
original jurisdiction in any dispute Supreme Court
between any two or more Governments.
Explanation. _ In this clause,
Governments means the Federal
Government and the Provincial Governments.
(2) In the exercise of the jurisdiction
conferred on it by clause (1), the
Supreme Court shall pronounce
declaratory judgments only.
(3) Without prejudice to the provisions
of Articles 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 conferred
by Chapter I of Part II is involved, have
the power to make an order of the
nature mentioned in the said Article.
Article (1) Subject to this Article, the Supreme Appellate
185 Court shall have jurisdiction to Jurisdiction of
hear and determine appeals from Supreme Court
judgments, decrees, final orders or
sentences of a High Court.
(2) An appeal shall lie to the
Supreme Court from any judgment,
decree, final order or sentence of a High Court-
(a) if the High Court has on appeal
reversed an order of acquittal of
an accused person and sentenced him
to death or to transportation for life or
imprisonment for life; or, on revision,
has enhanced a sentence to a
sentence as aforesaid;
(b) if the High Court has withdrawn
for trial before itself any case from
any Court subordinate to it and has
in such trial convicted the accused
person and sentenced him as aforesaid; or
(c) if the High Court has imposed any
punishment on any person for contempt
of the High Court; or
(d) if the amount or value of the
subject-matter of the dispute in the Court
of first instance was, and also in
dispute in appeal is, not less than fifty
thousand rupees or such other sum as
may be specified in that behalf by
Act of [Majlis-I-Shoora (Parliament)]
and the judgment, decree or final order
appealed from has varied or set aside
the judgment, decree or final order
of the Court immediately below; or
(e) if the judgment, decree or final
order involves directly or indirectly
some claim or question respecting
property of the like amount or value
and the judgment, decree or final order
appealed from has varied or set
aside the judgment, decree or final order
of the Court immediately below; or
(f) if the High Court certifies that the
case involves a substantial question of
law as to the interpretation of the Constitution.
(3) An appeal to the Supreme Court
from a judgment, decree, order or sentence
of a High Court in a case to which clause
(2) does not apply shall lie only if
the Supreme Court grants leave to appeal.
Article (1) If, at any time, the President Advisory
186 considers that it is desirable Jurisdiction
to obtain the opinion of the Supreme
Court on any question of law
which he considers of public
importance, he may refer the question
to the Supreme Court for consideration.
(2) The Supreme Court shall consider
a question so referred and report its
opinion on the question to the President.
Article The Supreme Court may, if it Power of Supreme
186A considers it expedient to do so Court to transfer
in the interest of justice, transfer any cases
case, appeal or other proceedings
pending before any High Court to
any other High Court.
(1) Subject to clause (2) of Article 175,
the Supreme
Article Court shall have power to issue Issue and Execution
187 such directions, orders or decrees of Processes of
as may be necessary for doing Supreme Court
complete justice in any case or
matter pending before it, including
an order for the purpose of securing
the attendance of any person or the
discovery or production of any document.
(2) Any such direction, order or
decree shall be enforceable throughout
Pakistan and shall, where it is to be
executed in a Province, or a territory or
an area not forming part of a Province
but within the jurisdiction of the High
Court of the Province, be executed as if
it had been issued by the High Court
of that Province.
(3) If a question arises as to which High
Court shall give effect to a direction,
order or decree of the Supreme Court,
the decision of the Supreme Court on
the question shall be final.
Article The Supreme Court shall have power, Review of
188 subject to the provisions of Judgments or
any Act of [Majlis-I-Shoora Orders by the
(Parliament)] and of any rules made by Supreme Court
the Supreme Court, to review any
judgment pronounced or any
order made by it.
Article Any decision of the Supreme Decisions of
189 Court shall, to the extent that Supreme Court
it decides a question of law or binding on other
is based upon or enunciates a principle Courts
of law, be binding on all other
Courts in Pakistan.
Article All executive and judicial authorities Action in aid of
190 throughout Pakistan shall act Supreme Court
in aid of the Supreme Court.
Article Subject to the Constitution and law, Rules of Procedure
191 the Supreme Court may make
rules regulating the practice and
procedure of the Court.
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’شہباز شریف کی پیوٹن سے زبردستی ملاقات کی کوشش‘: ویڈیو بھارتی پروپیگنڈا نکلی
پنجاب حکومت سے مذاکرات کامیاب: ٹرانسپورٹرز کا ہڑتال ختم کرنے کا اعلان
مہنگائی کے لیے تیار ہوجائیں، آئی ایم ایف نے قرض کے لیے 23 شرائط رکھ دیں
کراچی میں ای چالان سسٹم کا جائزہ لینے کے لیے 12 رکنی کمیٹی تشکیل
بھارتی نیوی نے 11 پاکستانی ماہی گیروں کو گرفتار کرلیا، 2 بچے بھی شامل
اس کہانی پر تبصرے بند ہیں۔