By admin 
AT PENPOINT
Somewhere someone must be missing the good old Act of Attainder, in which the House of Commons passed a bill stating that so-and-so was a coward and a traitor, and should be executed, and that his heirs should not inherit. all his titles or estates. After all, because Parliament is supreme, it will express the will of the people, without the nonsense of evidence, witnesses or a fair trial.
Instead, we have had to enter the uncertain territory of the 26th Amendment, where there is no certainty that there will be positive outcomes in the process that will lead to appropriate punishment for the perpetrators of the May 9, 2023, attackers. the first steps have been to ensure that a judicial revolution does not take place. There was the elevation of Mr. Yahya Afridi to the position of Chief Justice of Pakistan, and the second was the formation of the Constitutional Benches, from which would-be judicial revolutionaries were excluded, just as it was ensured that they would never become CJP.
This was intended to remove the constitutional benches from all legal cases concerning fundamental rights. But as any lawyer, or indeed anyone who has been involved in a lawsuit, knows, it is almost impossible to avoid adding constitutional flavor to a case.
It can be assumed that this applies to criminal law, because the right to liberty is often violated (or alleged to be violated). Although constitutional issues are rarely raised at the trial stage, appeals often take place on the grounds of lack of due process, invoking the jurisdiction of the superior court.
One of the most important constitutional cases in Pakistan, which upheld the Ayub Martial Law and established the Doctrine of Necessity, the Dosso case, was in fact a criminal case, in which Ghulam Muhammad Dosso had argued that the Border Crime Regulations (under which he was sentenced to death had been convicted of murder) were unconstitutional. The Lahore High Court said the FCR denied him fundamental rights as guaranteed by the 1956 Constitution. The Supreme Court, on an appeal by the federal government, said it was a coup and a new legal order had emerged, with the old laws under the Doctrine of Necessity were only in effect where they were mentioned. The FCR was mentioned, the Constitution was not; Dosso’s conviction would stand.
On the other hand, civil law also includes the constitution. We should remember that the cases in which India’s Supreme Court recognized and developed the Basic Structure Doctrine, which opponents of the 26th Amendment seek to challenge, were civil cases in which those who used the Doctrine argued that their property rights had been violated. Civil lawsuits do not address constitutional grounds at the trial stage, but often do on appeal.
Because jurisdiction is included as a subject for the Constitutional Benches, a wide range of laws are included, as lawyers challenge many legal proceedings, including administrative decisions, on the grounds of lack of jurisdiction: that the authority that made the decision did not have the have authority.
The jurisdiction under which writs are issued, under which writs of mandamus, quo warrant and habeas corpus are issued, will now be exercised by the Constitutional Benches of the High Courts, once constituted. Appeals against such summons will go to the courts of the Supreme Court.
The 26th Amendment was intended to achieve certain political goals, not to improve the legal system. Frankly, this is not an unknown situation in the legal community. It will adapt to the new situation and rely on its ability to weather the storm. The independence of the judiciary has so far been taken away from the government and not freely granted.
The Constitutional Benches were supposed to take the pressure off the courts and help them clear their backlog. However, there are already signs of pressure building as the Registrar of the Supreme Court has started setting aside cases before the Benches as soon as they start functioning. It is to be noted that no assembly has passed the enabling resolution required for setting up a constitutional bench in the Supreme Court. Although no orders have been issued to the clerks, both lawyers and judges will be keeping a close eye on developments, as will the more litigious laypeople.
At this point there is a natural separation. However, attorneys must figure out what is best for their client. Will they opt for a constitutional court, or will they limit themselves to the professional side? There are many factors involved, but one should not lose sight of the fact that appeals will be prepared by lawyers, and they will determine whether the appeal contains the kind of references to the Constitution that will take it to a constitutional court or to the pure judge . appeal judges.
It must be recognized that the lawyer must present all possible grounds and include them in his petition. These may be constitutional grounds. There is a good reason for this, because the Constitution is the basic law, to which all other laws must comply. If the lawyer believes that the law applied is not in accordance with the Constitution, he will take this as a basis. Furthermore, the Constitution supersedes other laws or executive actions. He may not have to challenge a law, just an action, where he will show that action, while permitted by law, violates a constitutional provision.
Apparently, as soon as an article of the Constitution is cited, the case will end up before the Constitutional Benches. If the Benches develop a reputation for being helpful, as individual judges sometimes do, lawyers will line up to present their cases to them, ensuring the necessary adjustment of the complaint. It should be noted that an appeal against the court’s judgment that contains ordinary grounds of appeal to the Supreme Court may then contain constitutional grounds in the event of an appeal to the Supreme Court.
If the process can be abused, it will be. The PTI’s entry into the High Judicial Commission has shown how tempting it is to appoint judges, form constitutional benches and exercise suo motu jurisdiction. This despite her reservations about the 26th Amendment, the parliament that passed it and the parties within it. The legal community has shown that its members are eager to be appointed, and the increase in the number of Supreme Court justices will allow the Court to be replenished not only with its nominees, but also a large number of elevations to the high courts. The implication is that either the number of Supreme Court justices will be increased or at least the vacancies will be filled.
The most famous episode of US Supreme Court rule did not happen. When the Supreme Court ruled unconstitutional in 1937, in his second term, certain pieces of legislation that President Franklin Delano Roosevelt saw as intrinsic to his New Deal and which were intended to pull the US out of the Great Depression, introduced a law that allowed him to appoint a judge for every judge over the age of 70 (US Supreme Court justices are appointed for life). This would have allowed him to appoint six judges. The bill died in the Senate Judiciary Committee. As happened, a bill would simply be passed here.
The 26th Amendment was intended to achieve certain political goals, not to improve the legal system. Frankly, this is not an unknown situation in the legal community. It will adapt to the new situation and rely on its ability to weather the storm. The independence of the judiciary has hitherto been taken away from the government and is now freely granted.