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PML N

PML-N

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shahid farooq
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© © All Rights Reserved
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Const. Petition No.06/2023 CMA/Concise Statement On behalf of the Respondent/PML-N Filed On:-28-09-2023 Raja Amer Khan & others VERSUS Federation of Pakistan & others sssseeseee Respondents Counsel for the Petitioner:- Counsel for the Respondent/PML-N: Salahuddin Ahmed, ASC Syed Rifagat Hussain Shah, AOR INDEX - Sr. 5 Page Ne Description Date Ne 1 | Concise Statement 28-09-2023 | 01-23 Certified that the paper book as bound is complete and correct Syed Rifaqat Hussain Shah ‘Advocate-on-Record Supreme Court of Pakistan Islamabad For the Responden/PML-N Dated:-28-09-2023 (Original Jurisdiction) CMA No. /2023 IN Const. Petition No.6/2023 Raja Amer Khan & others VERSUS Federation of Pakistan & others Respondents CONCISE STATEMENT ON BEHALF OF PAKISTAN MUSLIM LEAGUE - NAWAZ [‘PML-N’] PURSUANT TO ORDER DATED 18.9.2023 Respectfully sheweth: 1. The PML-N contends the Supreme Court (Practice and Procedure) Act 2023 ['the 2023 Act’] is intra vires the Constitution and is good! law..As such, all the instant petitions challenging the same may be dismissed and the interim order passed by this Court on 13.4.2023 may be vacated, 2. Three questions emerge from the pleadings and arguments of the petitioners: A) Can Parliament legislate on the practice and procedure of this Court and, in any event, override the provisions of the Supreme Court Rules 1980? B) Can Parliament can create a right of (intra-court) appeal against orders passed by this Court under Article 184 (3)? ©) Whether, even assuming the above, do the provisions of the 2023 Act otherwise violate any provisions of the Constitution and, if so, which and to what extent? A) Can Parliament legislate on the practice and procedure of this Court and, in any event, override the provisions of the Supreme Court Rules 1980? 3. Three objections are raised to the Parliament's power to legislate on the practice ‘and procedure of the apex Court: i) Allowing a legislature to regulate court practice and procedure (regardless Of the actual content of the legislation) violates the independence of judiciary. ‘Thus the term “Jaw” in Article 191 must be read restrictively to exclude statutes. ii) Alternatively, “Jaw” must be interpreted broadly to include judge-made law relating to judicial practice and procedure which must take precedence over ‘statute in the event of conflict. Parliament lacks, in any case, legislative competence to regulate the practice and procedure of the Supreme Court due to the language of the relevant constitutional articles and the Entries in the Federal Legislative List. iv) _ Even otherwise, such legislation cannot contravene the Supreme Court Rules 1980, which are to be afforded primacy. ‘Submissions on Objection (i): Allowing Parliament to legislate on judicial procedure and practice violates Judicial Independence 4. Article 191 provides “{s)ubject to the Constitution and law, the Supreme Court ‘may make rules regulating the practice and procedure of the Court.” Notably, Article 202, which deals with the practice and procedure of the High Courts and subordinate courts, is couched in an almost identical terms - “/sJubject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it.” 5. Irrespective of any question of legislative competence, the Petitioners argue the doctrines of separation of powers and independence of judiciary require that Parliament cannot have any role in regulating judicial practice and procedure. Thus, the word “law” in Article 191 should be read restrictively to mean only judge-made law and not statutory law. It is argued in other provisions of the Constitution, where the framers intended to allow statutory intervention, the words “Act of Parliament” are used instead of “law”, - 3 a 6. But if “Jaw” in Article 191 excludes statutory legislation, the same. meaning must be ascribed to Article 202. The Constitution guarantees fair trial, due process and independence of the judiciary in relation to all courts and not just the Supreme Court. In that case, statutory legislation affecting practice or procedure in a High Court or subordinate courts would be equally unconstitutional. 7. The argument, pitched so high, is plainly absurd. It would entail striking down all co parts of, inter alia, the Code of Criminal Procedure 1898, the Code of Civil Procedure 1908, the Specific Relief Act 1877, the Limitation Act 1908, the Succession Act 1925, the West Pakistan Civil Courts Act 1962, the Guardian and Wards Act 1890, the Family Courts Act 1964, the Law Reforms Ordinance 1972, the Admiralty Ordinance 1980, the Contempt of Court Act 2003, the Companies Act 2017, the Financial Institutions Ordinance 2001 and the Election Act 2017. All these laws (and dozens more) regulate the practice and procedure of courts (subordinate, special, High Courts and the Supreme Court) in their general and special jurisdictions. Provisions of these statutes detail, infer alia, the parties that possess standing, who may represent them, the form and substance of the pleadings to be filed, how and when they can be amended and responded to, how and to whom notices are to be issued, how and which witnesses are to be summoned, how oral and documentary evidence is to be recorded, the manner of disposal of interlocutory and main applications, what temporary and final reliefs can be granted, how judgments and orders are to be enforced and executed, time limits for various sets and even the number (and ranks) of judges that shall adjudicate any particular category of cases or appeals. If all this is considered impermissible legislative interference into the exclusive domain of the judiciary, then, while the judiciary may be independent - it shall be of no ‘practical utility to the people of Pakistan. 8. The term “law”, obviously, may be of wider connotation than “dct of Parliament”. Depending on context and usage, it can include Ordinances, President's Orders, Rules framed under the authority of the Constitution and also Rules, Regulations and Bye-Laws framed under authority of a statute, It may include customs, conventions and even well-established legal principles of judicial creation such as the principles of Hi tae natural justice (i.e, judge-made law) and what is sometimes referred in other jurisdictions as common law. In our jurisdiction, it may include principles of Islamic jurisprudence. But no matter how widely or narrowly “/aw” is used in any particular context, even its narrowest definition has always included Acts of Parliament 9. Academics have debated for hundreds of years whether judges make “laws” or only interpret them. Among practitioners, there is often dispute whether any particular statutory notification amounts to “delegated legislation” enjoying the status of law or ‘whether itis actually, in substance, merely an administrative order or circular devoid of legal force. The Petitioners argue, however - pethaps for the first time in our judicial history - that by using the term “law” in Article 191 instead of “Act of Parliament”, the intention was to exclude Acts of Parliament. 10. The argument is fallacious. In the first place, it is not an invariable rule of interpretation that whenever Parliament uses different words within the same legislation — it intends to connote a different meaning, Sometimes, for purely stylistic reasons, the drafismen employ different words having the same meaning’. 11. _ In the Constitution, for example, at some places the word “law” is used alone in phrases like “any law”, “no law” or “by law”, or “subject to law”, “declared by law", “prescribed by law” or “in accordance with law”?, Even a cursory review of those constitutional provisions makes clear they mean ‘and include statutory law. At other places, the preferred phrasing is “law made by the State”, “law made by the Province”, “law made by the Parliament”, “law made by the Provincial Assembly” or “law made by the appropriate legislature”*. In yet other places, “Act of Parliament” or “Act of Provincial Assembly” or “‘Aet of appropriate legislature” is used and, finally, in some * Crown v. Khushi Muhammad, PLO 1953 FC 170 @ 174; Pakistan Fisherles v. UBL, PLO 1993 SC 109 @ 118, 2 Sec, for example, Articles 4,5, 7 8 9, 10(3) and (4) and (5), 21), 12,33, 15, 16,27, 18,39, 29A, 20,22 (2),23, 26,250, 26,30 (2) 54 GA), 51 (6) (and (e, 63 (2) (a), 66 (2) and (3,206 (3) el, 359 (3), 173 (5), 197, 213 (3), 218 (2), 223, 240, 243 (3), 245 (2), 248 (4), 250 {2) and (2), 279 " See, for example, Articles 3 (3), 6 (3), 87 (2), 97, 98, 138, 140A, 151 (2), 154 (5), 165A, 173 (5), 222, 237, 241, 242,251 (3), 500, for example, Articles 27, 48 (7), 77, 79, 81 (e), 119, 121 (e), 144, 263, 166, 168 (3), 165, 173 (2), 176, 185 (2) (d), 188, 192 (4), 212, 219 (e), 225, 238, 240, 279 ane places the word “legislation” is used’. Sometimes, different expressions are used in the same Article itself®. Nothing much tums on this. 12, Article 75 (3) makes clear when a Bill of Parliament is assented, or deemed to have been assented, by the President “ic shall become law and be called an Act of Parliament®. Similarly, Articles 141 and 142 confer, upon the Parliament and Provincial Assemblies, the power to make “laws”. Likewise, Article 260 defines “federal law” to ‘mean “q law made by or under the authority of Parliament” while it defines “provincial Jaw” to mean “a law made by or under the authority of a Provincial Assembly”. 13, In relation to the judiciary, Article 175 (1) provides that, apart from the constitutional courts, there shall be “such other courts as may be established by law”. Obviously, it does not mean courts established by judicial precedents. It means courts established by federal or provincial statutes. Does this statutory power to create (and abolish) courts - going far beyond mere regulation of judicial practice and procedure - violate the doctrines of separation of powers or independence of judiciary? ‘The doctrine of independence of judiciary and the guarantees of due process and fair trial under Article 10A apply with equal force to NAB courts, ATC courts, provincial Consumer Courts, Environmental Tribunals and all other judicial fora that remain, nonetheless, creatures of statute, To argue, therefore, that judicial independence is not inftinged when the legislature creates (or abolishes) courts but is infringed when the legislature regulates judicial procedure (no matter how beneficial) is illogical. 14, Similarly, Article 175 (2) provides that no court (including constitutional courts) shall enjoy any jurisdiction “save as is or may be conferred upon it by the Constitution or by or under any law”. There are numerous examples of jurisdictions conferred upon this Court” and the High Courts* through statute and not directly by the Constitution itself. * See, for example, Articles 155 (1) (a}, Entry 37 of the Federal Legislative List, * See, for example, Articles 89, 128, 173 (1) and (5) and Entry 37 of the Federal Legislative List 1 See, for example, varlous statutory provisions creating direct appellate jurisdiction upon this Court fom, vvatlous statutory forums over and above the appellate jurisdiction mentioned In Atile 185 Including

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