Constitutional courts

[ghazi52]

,..,,.

Constitutional courts​

The establishment of a separate constitutional court cannot be done without national consensus

The govt has lost whatever little moral authority it had to make such decisions on their behalf.

Editorial
May 31, 2023

THIS government’s legislative interventions will be remembered for making even good things seem bad because of how cynical and self-serving the intentions behind each appear to have been.

According to news reports, lawyer Irfan Qadir, recently reappointed as special assistant to the prime minister on legal reforms and accountability, has reignited a discussion on the possibility of establishing a constitutional court to work alongside the Supreme Court.

The creation of a separate court to deal with the constitutionality of various parliamentary actions and legislations was a proposal jointly agreed to by the PPP and the PML-N under the Charter of Democracy signed in 2006. It was never really pursued with the required seriousness thereafter, but the PDM now feels the need to revisit it. The question is, why?

Mr Qadir has said that the proposed constitutional court would be composed of retired, ‘non-controversial chief justices’, along with judges drawn from the superior judiciary as well as parliamentarians with legal expertise.

He has presented such a court as a solution to the many challenges dogging the Supreme Court, which, he believes, are preventing it from issuing ‘unbiased’ verdicts. While the idea may not be without its merits, the establishment of a constitutional court cannot be done without national consensus or enacted through a parliament that is not truly representative of the people.

This government, which has denied the public their right to participate in the democratic process by refusing to hold due elections to the KP and Punjab assemblies, has lost whatever little moral authority it had to make such decisions on their behalf.

It is also rather unseemly that this proposal has been tabled not because it is a required next step in the evolution of the Pakistani judicial system, but because the government considers it a power play in its confrontation with the Supreme Court. The question will, therefore, be asked: is this good for the country, or just good for the PDM?

The idea of constitutional courts is not unheard of — more than five dozen countries have them in place. It is also not a bad one, considering the massive and continuously increasing backlog of cases pending before Supreme Court justices, who must currently deal with both pressing constitutional matters as well as regular criminal and civil appeals.

Splitting the workload between two courts could greatly help ease this pressure. A separate constitutional court would also utilise the experience and expertise of retired judges, whose accumulated wisdom is dispensed with rather early under the Pakistani system compared to, for example, the US supreme court, which appoints its justices for life.

Clearly, this proposal could have been considerably better received had it not seemed like yet another thinly disguised attempt to encroach upon the Supreme Court’s domain.

Constitutional courts

While the idea may not be without its merits, the establishment of a constitutional court cannot be done without national consensus.

www.dawn.com

 

[FuturePAF]

Reminds me of a cartoon of what could happen if the constitution is amended Willy Nilly.

 

[ghazi52]

SC constitutional bench summons NCRC representatives in missing children’s case​

Petitioner seeks direction to amend relevant laws by govt, establish special courts in consultation with respected high courts.

Nasir Iqbal
March 19, 2025

ISLAMABAD: The Constitutional Bench of the Supreme Court on Tuesday summoned representatives of the National Commission on the Rights of Child (NCRC) in a case moved to seek a declaration that police should treat the issue of missing children as a cognisable offence.

Headed by Justice Aminuddin Khan, the five-judge bench had taken up a petition moved by the Karachi-based Roshni Research and Development Welfare Organisation in 2018.

The petitioner sought a direction to amend the relevant laws by the federal and provincial governments and establish special courts in consultation with the respected high courts.

On Tuesday, the apex court was told that despite earlier directions that Attorney General for Pakistan should meet the inspector generals of police (IGPs) to sort out the matter, no such meeting took place.

However, Additional Attorney General (AAG) Chaudhry Aamir Rehman contested the statement, claiming that the AGP did meet several IGPs.

During the hearing, Justice Jamal Khan Mandokhail regretted that laws for the protection of children were not being implemented.

According to a study conducted by the organisation, around 5,000 to 6,000 children “disappear from Karachi” every year, but police instead of registering a proper FIR for each case, only mention such incidents in Roznamcha (daily diary) without carrying out any investigation or efforts to trace such children.

Referring to Section 364-A of the Pakistan Penal Code, the court was told that police officials take advantage of lacuna in the law to avoid case registration since the vital words in the section are kidnapping or abduction.

When a complainant approach police to lodge the case of a missing child, officials say “disappearance” was not mentioned in any provision of the PPC, the petition claimed.

The situation in Punjab and other provinces was not less horrendous, the petition stated, adding that immediate indulgence of the Supreme Court was needed to enforce the fundamental rights of the public.

Published in Dawn, March 19th, 2025

 

[ghazi52]

No arrest without FIR, magistrate's order: CB​

Bench notes military did not register any FIR directly over May 9 violence

Correspondent
April 16, 2025


A judge on the Constitutional Bench (CB) of the Supreme Court remarked on Tuesday that no one could be arrested without the registration of the first information report (FIR) and the order of a magistrate.

During the hearing of the intra-court appeals against the apex court's decision that stopped the military trial of civilians, the CB noted that the cases against the accused involved in the May 9, 2023 violence were booked under the Official Secrets Act (OSA) but the military did not get any case registered.

A seven-member bench, headed by Justice Aminuddin Khan, heard the intra-court appeals. At the outset of the hearing, bench member Justice Jamal Khan Mandokhel, asked defence ministry's lawyer Khawaja Haris to complete his arguments within 20 minutes.

Haris responded that he would try to conclude his arguments by the end of the day. At this, Additional Attorney General (AAG) Amir Rehman said that if Haris finished his arguments today, the attorney general for Pakistan (AGP) would present his arguments on Wednesday (today).

During the hearing, Justice Mandokhel said that no arrest could be made without an FIR, nor could anyone be detained without a magistrate's order. Justice Muhammad Ali Mazhar said that the May 9 cases were registered under the OSA, adding that the military did not register any FIR directly.

Justice Mandokhel remarked that this case would have profound implications for the future. Justice Aminuddin Khan said after arguments from Khawaja Haris, the court would hear the AGP on Wednesday (today).

Haris remarked that had the judges not asked so many questions, he would have completed his arguments. However, Justice Musarrat Hilali, in a lighter vein, said she would not let anyone ask questions. Justice Mandokhel added that he, too, would refrain from asking any. The hearing is scheduled to continue on Wednesday (today).

 

[ghazi52]

Two judges object as SC accepts review pleas on reserved seats for hearing​

Umer Mehtab
May 6, 2025

This photo combo shows Justice Ayesha Malik (L) and Justice Aqeel Ahmad Abbasi (R). — SC website

As the constitutional bench (CB) of the Supreme Court on Monday took up a set of review pleas against the top court’s ruling that had declared the PTI eligible for reserved seats, two judges declared the petitions as inadmissible.

In its July 12, 2024 short order, eight out of 13 judges ruled that roughly half out of a list of 80 MNAs were and are the returned candidates of the PTI, setting it to emerge as the single largest party in the National Assembly.

However, the ruling had not been implemented as the Election Commission of Pakistan (ECP) had not notified the changes given its objections. The review petitions against the SC order had been filed by the PML-N, the PPP and the ECP.

As the full-strength 13-member CB led by Justice Aminuddin Khan took up the review pleas today, Justices Ayesha A. Malik and Aqeel Ahmed Abbasi objected to them, declaring the applications as inadmissible.

The other 10 members of the bench were Justices Jamal Khan Mandokhail, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, Naeem Akhter Afghan, Shahid Bilal Hassan, Muhammad Hashim Khan Kakar, Salahuddin Panhwar, Aamer Farooq and Ali Baqar Najafi.

Five of the eight judges who ruled in PTI’s favour — namely senior puisne judge Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Athar Minallah, Justice Shahid Waheed and Justice Irfan Saadat Khan — are not part of the CB.

While Justices Mazhar, Ayesha and Rizvi were part of that majority verdict, Justices Aminuddin and Afghan had rejected the PTI’s pleas, denying it the reserved seats.

Haris Azmat appeared as the counsel for the PML-N while Sikandar Bashir Mohmand was present on behalf of the ECP.

While the CB formally accepted the review petitions for hearing, Justices Ayesha and Abbasi dissented with the majority decision, objecting to the maintainability of the pleas.

With a split majority of 11-2, the bench issued notices to the parties in the case and adjourned the hearing till tomorrow (Wednesday).

It also stated that a contempt plea filed by PTI’s Kanwal Shauzab against the ECP for not implementing the SC’s July 12 ruling would be clubbed with the review pleas.

In its review application, the ECP submitted that the July 12 short order was based on the law that has since been altered by the amendments made to Sections 66 and 104 of the Elections Act and a new section, namely 104-A, has also been inserted with retrospective effect.

It requested the SC to revisit its judgement in the reserved seat case that granted relief to the PTI, saying it was neither a political party nor individuals claiming to be its candidates had ever approached the ECP, Peshawar High Court or the apex court to claim the reserved seats.

In its detailed verdict on the reserved seats case, which was authored by senior puisne judge Justice Mansoor Ali Shah, the SC had observed that the ECP’s numerous “unlawful acts and omissions” had “caused confusion and prejudice to PTI, its candidates and the electorate who voted for PTI”.

It had also castigated the ECP for failing to fulfil its “role as a guarantor institution and impartial steward” of electoral processes.

On Sept 14, 2024 — the day the government was supposed to lay the 26th Amendment in both Houses of the parliament but could not — the Supreme Court, through a clarification, had reprimanded the ECP for not implementing its July 12 ruling in the reserved seats case.

Later on October 18, in yet another clarification, Justice Shah reiterated that the effect of an amendment made in the Elections Act 2017 in August last year could not undo the reserved seats case verdict.

The bill, titled “Elections (Second Amendment) Act, 2024”, was seen as aimed at circumventing the apex court’s verdict on the reserved seats case by barring independent lawmakers from joining a political party after a stipulated period.

A six-judge CB of the apex court was set to take up the PTI’s petition challenging those tweaks to the election laws in December 2024. A separate plea of the PTI against the Jan 13, 2024 ruling denying it its election symbol is also pending before the SC.

‘Clear error in verdict must be identified for review plea to be taken up’​

Earlier today, a three-member bench of the SC observed that a “clear error” in an original verdict must be identified for a review petition to be accepted for hearing.

The ruling came as the bench — led by Justice Shah and comprising Justices Mazhar and Hassan — took up a set of civil review petitions against a PHC ruling which had dismissed challenges brought by candidates who had been denied appointments as primary school teachers.

Justices Mazhar and Hasan are part of the CB that has taken up the review pleas against the SC’s ruling on the reserved seats case.

The judgment, authored by Justice Shah, stated that a review could be sought only under Article 188 of the Constitution, which empowers the SC to review any judgment pronounced or order made by it, or under the Supreme Court Rules of 1980.

Citing the Code of Civil Procedure 1908, the order stressed that “some mistake or error apparent on the face of the record” was one of the situations where a review may be sought.

Acknowledging that the phrase “cannot be defined with precision”, Justice Shah declared that the error “must be self-evident, immediately apparent, and not require extensive discussion or reasoning”.

The power of review was “not an open invitation to revisit judgements merely on the basis of dissatisfaction with the outcome”, the judge emphasised.

“A decision, order, or judgment cannot be corrected simply because it is erroneous in law, or because a different view could have been taken by the court or tribunal on a point of law or fact,” he noted.

“Frivolous claims serve no purpose other than to waste the court’s time and resources,” the order stated, clarifying that the power of review should not be confused with the appellate power.

Noting that there were over 2.2 million cases currently pending before courts across Pakistan, including approximately 56,635 before the SC, the ruling pointed out that “frivolous, vexatious and speculative litigation contributes substantially to this backlog”.