Presidential decree ready to clip SC powers
LAHORE (MIAN DAWOOD) – Besieged by the Supreme Court, the PPP regime is considering bringing in a presidential ordinance to curtail the original jurisdiction and the suo moto powers the apex court enjoys under article 184(3) of the constitution.
Though a draft of the ordinance is available with TheNation, it is unclear when it would be promulgated. The ruling party may even be forced to drop the idea in view of the legal implications and strong political and public backlash.
The ordinance was drafted by the Ministry of Law and Parliamentary Affairs on May 16, a week after the apex court issued its detailed judgment convicting Mr Gilani in contempt of court case.
The move however comes at a time when the Supreme Court has already disqualified Syed Yousuf Raza Gilani as prime minister and has now asked his predecessor Raja Pervaiz Ashraf to tell whether he intends to write to Swiss authorities for reopening graft cases against President Asif Ali Zardari, whose future is also uncertain because of various petitions filed in the courts of the county.
“Law Reforms (Amendment) Ordinance 2012”, as the new legislation will be called, would also give former premier Gilani right to appeal his ouster as it provides an aggrieved party a 60-day time – compared to the 30-day time available at present – to file an intra-court appeal (ICA) against a court judgement.
As per the proposed ordinance, the operation of the any judgement issued under article 184 (3) by the superior judiciary will also remain in abeyance till pending of the appeal – that is to say an automatic stay will come into effect whenever an appeal will be filed.
This means that although the leader from Multan has already been replaced by Raja, he still would have time to file an appeal – an important purpose of this legal adventure, say the legal experts who have gone through the draft. But, it is unclear if this would enable Gilani to regain power or Raja will continue to stay in the driving seat till Gilani’s appeal is decided.
They say that presidential ordinance would also provide a cover to the new prime minster, who is also likely to face the same situation over the issue of Swiss letter. But more importantly, it would indirectly paralyse the suo-moto powers of SC because it takes suo-moto notices under article 184 (3).
Titled ‘Original Jurisdiction of Supreme Court’, the article 184 (3) reads: “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 conferred by chapter-I of part-II is involved have the power to make an order of the nature mentioned in the said article.”
The proposed amendments in the Law Reforms Ordinance are that section 3-A will be inserted as follow: “
Any person aggrieved by the judgment, order or decree, passed in the original jurisdiction under article 184 (3) by the Supreme Court, shall, within 60 days, have the right to prefer an appeal under this section.
An appeal preferred under sub-section (1) shall lie to a bench larger than the bench which had passed the judgment appealed against.
Pending adjudication of the appeal under sub-section (1) the operation of the judgment shall remain in abeyance.
When promulgated, the presidential ordinance shall come into force at once and shall, subject to the limitation as provided in the ordinance, be applicable on all the matters in which the right of review as available and has not been exhausted, the draft further reads out.
Abid Hassan Minto says that the right of appeal has not been written in article 184 (3); therefore, it is impossible to bring a common law, by amending it, in front of the constitution. “The draft is entirely unconstitutional,” he says. “It will be sub-constitutional legislation and the constitution doesn’t allow such attempts.”
Manto says that article 188 empowers the superior judiciary to review its decisions and the court uses these powers according to the law and SC’s own rules. In presence of article 188 and 184 (3), it will be sheer violation of the basic norms of the constitution to give the constitutional right of appeal through a subordinate law.
After the promulgation of the Law Reforms Ordinance, 2012, the attempt at modifying the constitutional powers through sub-constitutional legislation may become a talk of the town, Manto opines. The filing of ICA against an SC verdict has been allowed, through an amendment, only for once in the light of article 204 of the constitution, he maintains.
The expert says the only ICA can be filed in the light of rules of the contempt of court ordinance which has been made according to the article 204, authorising the apex court to exercise its powers to initiate contempt proceedings against disdainful personalities.
He says the draft shows that President Zardari and his ‘well-wishers’ has calked-out a new plan to control the judiciary that is the only hope now for the masses. “Yes, the Pakistan Peoples Party wants to save PM Raja Pervaiz Ashraf from becoming next victim of the apex court” over the Swiss letter, Manto said to a query.
The legal experts say the ordinance may also be helpful for the government in cases like Arsalan Iftikhar, Ephedrine, NICL, Rental Power, Bank of Punjab and NRO, the experts say. But this ill-conceived move would bring more harm to the PPP, which is already fighting for its political survival, as the people of Pakistan are now fully aware that the PPP and its coalition partners are deliberately defying the court orders, they say.
The experts believe that the promulgation of such a controversial ordinance will ruin the whole judicial system. They say the draft of the ordinance is a conspiracy to control the superior judiciary. “Such attempts will lead to heightened confrontation between the institutions; resultantly, the whole system will collapse,” the experts feared.