A Tale Of Two Judiciaries

[Saiyan0321]

This is an old article by me but the point in it is equally crucial. What annoys me alot is when judges past two different judgments depending on their whims and thinking and this throws the entire legal process in disarray and often you see two lawyers bringing two judgments of the supreme court, pressurizing a civil court judge with their contrasting judgments.

in the middle of March, as the world slowly awakened to the threat of the Coronavirus, the Lahore High court passed a 103-page judgment on section 15 of the ‘Financial Institutions Act 2001’. The concerned section empowered the banks to sell mortgaged property upon non-payment, provided the procedure provided in section 15 is followed.

This allowed banks to foreclose property without any intervention or permission from the banking courts. The case presented challenged the reintroduction of section 15 through the ‘Financial Institutions Amendment act 2016’ to allow for easier foreclosure of mortgaged property. The Lahore High Court in its judgment declared the aforementioned section as constitutional and allowed its existence as law.

This went against the judgment of the Supreme Court of Pakistan, which declared section 15 ultra vires in the case of ‘National Bank of Pakistan and 117 others vs SAF Textile Mills Limited’ cited as PLD 2014 SC 283 in which it was highlighted that the said section violated Article 10A which covers the fundamental right regarding a right to fair trial. Moreover the court declared that the banks cannot be given such arbitrary powers. And the court also stated that when the amount of mortgage or the amount to be given or financed has not been determined, then until it is so determined the court cannot give anybody power to sell the property of another person. The superior court brought forward that the banking courts are already skewed in favour of the petitioner due to the existence of section 9 and 10 of the ‘Financial Institution Ordinance 2001′ which require the defendant to file a plea for defense where the defendant must explain as to why the case must require additional evidence for justice to be done – and more often than not, such leave is not granted, thus additional arbitrary powers cannot be granted in interest of Article 10A as well in the interest of natural justice.


The judgment of the Lahore High Court also went against article 189 of the constitution of Pakistan, which declares:

“Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.”

This was highlighted during the proceedings of the case, but the Lahore High Court ignored such by stating that the fears of the Supreme Court were answered in the 2016 ordinance. That, of course, doesn’t absolve the Lahore High Court of the binding that Article 189 places upon all subordinate courts. Thus, the High Court, rather than criticizing or berating the state for going against the instructions of the Supreme Court to pass a law that they declared ultra vires, did the opposite. It could lend credence to the questionable action of the state without taking into cognizance that such an action was absolutely unnecessary – considering the existence of section 9 and 10 of the ‘Financial Instruments Act 2001’.


Unfortunately such a scene is very common in the field of law where one court states one thing whereas another court states the opposite. In fact, contradiction is common in judgments and leads to confusion among lawyers as well as judges. The same was found in Article 16 of the Qanun e Shahadat order 1984 which points to competency of an accomplice as a witness without corroboration. The Supreme Court in case PLD 1983 SCMR 1119 stated:

“The statement of an accomplice, without any independent corroboration is sufficient to the offence.”

However, at the same time three years later, the subordinate court passed a judgment in case 1986 CLC 753 which stated:

“Evidence of accomplice is unworthy of credit unless corroborated in material particulars.”

Another such example exists in dealing with ‘Justice of Peace’ in accordance to section 22A and 22B of the ‘Criminal Procedural code 1898 since in the famous case of ‘Khizer Hayat vs Inspector General of Police Lahore e.t.c’ PLD 2014 SC 753 the Superior Court declared it an executive power rather than judicial. This meant that any application dealing with the powers of a Justice of the Peace must be entertained and passed. However, this contradicts the real practice as well as the spirit of the 2 sections since justice of peace is not mechanical but applies judicial mind, gives bearing to facts and in many cases has summoned the opposite party and the respective police officials before passing relevant orders and this is covered in both procedural law, natural law as well in many precedents.

There exist many such examples in law and these contradictions impede the natural evolution of the legal system within the country.

The effect of such a judgment, as passed by the Lahore High Court, shall be that lawyers will present judgments from Supreme Court against the said judgment and file multiple suits against foreclosures – leading to increase in litigation, as well as a delay in justice for both parties. After all, previously, the process of obtaining a decree from banking courts, in most cases, was quick. The defendants were required by law to file a leave for defense, meaning that no defense would be accepted until the court is convinced that such defense is worthy of being placed on record. However, now such parties will create a defense citing the judgment from the Supreme Court, increasing delays in mortgage foreclosures.

It is time the courts of Pakistan, both superior and subordinate, work in tandem for each other, rather than against each other. In this way, the natural evolution of the legal system would not be impeded and the people of Pakistan could be provided quick and efficient justice without any legal loopholes to be exploited.

It goes without saying that lawyers, who are duty-bound as officials of court, must work to implement and increase justice in society rather than impede it in hope of personal gains and glory.

A Tale Of Two Judiciaries

These contradictions impede the natural evolution of the legal system within the country

nayadaur.tv

@Kaptaan @Joe Shearer @Nilgiri @Yankeestani @VCheng

 

[VCheng]

What annoys me alot is when judges past two different judgments depending on their whims and thinking and this throws the entire legal process in disarray and often you see two lawyers bringing two judgments of the supreme court, pressurizing a civil court judge with their contrasting judgments.

The reason for such poor legal processes is judgement by decree and personality overrules the law. CJ Iftikhar's judicial overreach, for example, reached ridiculous heights, such as with the Dam Fund. Abuse of suo moto cases is rampant too.

The SC ideally should only be an appellate court to hear cases adjudicated by the HCs and even then only when grounds for such appeals exist based in law. For a society comfortable in its lawlessness, this will likely never come to pass.

 

[Jackdaws]

Courts can't and should not ever work in tandem. That's a key pillar of having a free thinking, independent judiciary.

And Supreme Courts often overturn their own decisions via a larger bench. There is a genuine fear in the US that the duffers made judges by Trump in the SC will overturn Roe VS Wade and make it difficult for women to have abortions.

 

[Saiyan0321]

CJ Iftikhar's judicial overreach, for example, reached ridiculous heights, such as with the Dam Fund.

Saqib nisar and his Dam fund which was frankly the height of overreaching. If CJ iftikhar meddled in the affairs of the executive then Nisar took it to a level that was eye opening. He was, simply put, one of the worst CJs we ever had and this is solely due to his efforts outside his jurisdiction.

The SC ideally should only be an appellate court to hear cases adjudicated by the HCs and even then only when grounds for such appeals exist based in law. For a society comfortable in its lawlessness, this will likely never come to pass.

The legal interpretation of law by the Supreme Court is not an illegal act since the separation of power provides such power to the judiciary to create balance in checks of power. Lawlessness will exist even if we have a single supreme institution. We have many countries where separation of powers exists and they are very lawful countries. The Supreme Court has been described as the Constitutional Court with appellate jurisdiction. Now what do these words mean?

To understand this, we must understand one fact as to what is Article 184 and 185. Let me Reproduce

Article: 184 Original jurisdiction of Supreme Court​

184. Original jurisdiction of Supreme Court.-(1) The Supreme Court shall, to the exclusion of every other Court, have original jurisdiction in any dispute 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 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.

Article 185

Article: 185 Appellate jurisdiction of Supreme Court​

185. Appellate jurisdiction of Supreme Court.-(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from 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, or revision, has enhanced a sentence to a sentence as aforesaid; or
(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 1[Majlis-e-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.

So to the reader, the first question will be, why the difference in articles? why did the constitution place it upon itself to have two articles to declare jurisdiction of the court and not just have it in a single article and why are the two articles named so differently when they concern the jurisdiction of the court?

Well for this let me reproduce another Article and throw in another spanner

Article: 186 Advisory jurisdiction.​

186. Advisory jurisdiction.-(1) If, at any time, the President considers that it is desirable 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.

Three different jurisdiction with numbers as 184 and 185 and 186. In constitutionalism, there exists a meaning to this. It is now a settled principle which was especially enshrined in PLD 2015 SC 401 that the Constitution cannot be read without context and must be read as the whole document rather than a single Article or even a Single Chapter. So why do we have three separate jurisdictions.

The reason is because the Superior Courts is not the appellate court because it does not consider itself as such. The Court considers itself as the constitutional court and when we read the constitution in a flow, we will come to understand that both the High Court and the Supreme Court, are not appellate courts and infact this has been established in multiple cases such as PLD 1977 SCMR 2061, PLD 1994 SC 683 and ofcourse PLD 2000 869 and multiple other judgments, the court has not seen itself as an appellate court but a constitutional court whose job is to oversee the constitutional interpretation, legal interpretation and ofcourse the protection of fundamental rights and this is why we see the Article 184 use the term "Original Jurisdiction" since the court declares that its original power were these. This is why it was made and formed. The Constitution then moves to confer Appellate jurisdiction through another article in this manner so as to declare that the original jurisdiction is not appellate, you are not an appellate court but is given extra power for the ends of justice and held that you cannot go to this court as a right of appeal, You cannot come to this court and claim that right under Civil Code Section 96 in the Supreme Court. Infact even the High Court is not the Court where Original Appellate jurisdiction exists. Infact the High Court also sees itself as a Constitutional Court and if you would notice Article 199 confirms original jurisdiction to be of writs and amongst this writs, the five we learn, there is an unmentioned sixth which is the prerogative writ and this writ is the extraordinary power of the court, which means, again that it is not in its original jurisdiction. Here is the thing First appeal against a decree is in the court of district and sessions which means that the original appellate court is the session court. I know this because i have seen plaints in session courts with the title Appeal against Xyz order but here is the thing. The appeal under 100, the second appeal cannot be claimed as a right. Second appeal cannot be claimed as a right and this is held in Section 101 which forbids any second appeal that is not in accordance to the grounds mentioned in Section 100 and those grounds are related to decrees that are in contrary to a question of law rather than a question of fact.

So basically appeals are the Original jurisdtion of lower courts rather than the higher courts which consider themselves as venues of constitution. Now there are expressly mentioned points where one can take his case to High Court but all of them, apart from Death sentence, declare that this is extraordinary power given to a court whose original jurisdiction was not this. In fact such is the nature of the High Court that if we want to take a case to the High Court, we will file it under Writ Petition 199 and not appeal but why and wouldnt that mean that appeal is in Article 199, making appeal, its original jurisdiction. NO. Because that Writ petition is neither taken as a right nor taken as an appeal but the plea of a person who has been aggrieved by an order on the basis of its illegality, again question of law and not question of fact. Difference between Appeal and Writ petition 199 is very important to understand because it is here that we differentiate a constitutional court and an appellate court.

A superior court degraded as nothing more than the third venue of appeal, it is better to remove it altogether. You dont need three appeals if you wish to give justice and swift justice. This is extremely important to understand that in separation of powers, we have the supreme court.

You see, we have the High Court acting as the Writ court and the Supreme Court as the interpreter of the constitution and this is good Vcheng. There is no lawlessness here and infact this is inline with the systems around the world, including the US where the superior courts are not appellate but find their original jurisdiction in Constitutional Interpretation. Infact they have made use of Judicial Review to strike down laws thus maintaining the balance of separation of power. There is no lawlessness here. The problem is the implementation and having a single sovereign institution is not different, whether elected or not, is no different than having a dictator. I am vehemently against the sovereignty of one power.

 

[VCheng]

You see, we have the High Court acting as the Writ court and the Supreme Court as the interpreter of the constitution and this is good Vcheng. There is no lawlessness here and infact this is inline with the systems around the world, including the US where the superior courts are not appellate but find their original jurisdiction in Constitutional Interpretation. Infact they have made use of Judicial Review to strike down laws thus maintaining the balance of separation of power. There is no lawlessness here. The problem is the implementation and having a single sovereign institution is not different, whether elected or not, is no different than having a dictator. I am vehemently against the sovereignty of one power.

A great post, but what good is a legal process that is not implemented? Law without enforcement is simply lawlessness by another name.

 

[Saiyan0321]

A great post, but what good is a legal process that is not implemented? Law without enforcement is simply lawlessness by another name.

Hey that's my theory. I agree that implementation is lawlessness. The system itself is not naturally lawless but it's lack of implementation is lawlessness. For example who is saqib nisar to go to a medical hospital and tell at the director for not doing a good job. It's not his job. He epitome of lawlessness. The face of it. It was the job of the PMDC or the DCO aka the executive but his actions were lawlessness.

This is where I get stuck. I don't know how we can expand implementation when the powers themselves are not interested in it. Then we of course we come to rule of law.

 

[Saiyan0321]

just to be clear when i say there is no lawlessness here, i meant that there is no lawlessness in the nature of the system but in the implementation of it which creates a lawless society

 

[VCheng]

Hey that's my theory. I agree that implementation is lawlessness. The system itself is not naturally lawless but it's lack of implementation is lawlessness. For example who is saqib nisar to go to a medical hospital and tell at the director for not doing a good job. It's not his job. He epitome of lawlessness. The face of it. It was the job of the PMDC or the DCO aka the executive but his actions were lawlessness.

This is where I get stuck. I don't know how we can expand implementation when the powers themselves are not interested in it. Then we of course we come to rule of law.

And that is where my conclusion that the system is working perfectly to achieve the results it is designed to achieve comes in yet again. Those who are at the top are among the beneficiaries of the setup and therefore it is in their interest to foster this environment while paying only lip service to the law. That is why nothing ever changes in a meaningful way.

 

[VCheng]

just to be clear when i say there is no lawlessness here, i meant that there is no lawlessness in the nature of the system but in the implementation of it which creates a lawless society

It is ironic to note the similarity in what you say above - the system is lawful but the end result is lawlessness - and the claim about Islam being a perfect way of life, and yet its followers do everything but what it says. I was castigated - ahem - elsewhere for saying that a religion is only what is followers do and not what they claim holds true here too, a society is only as lawful as what they do in practice, and not what their laws claim.