Rushing to amend … Ali Hassan

Our lawmakers’ flirtation with bulldozing amendments has only grown stronger with time. Last year, on the eve of its retirement, the government rushed a torrent of bills through the National Assembly – without debate, without consideration, with only perfunctory ‘yeas’ and ‘nays’. Among these was the Practice and Procedure Bill.

Less than a month ago, this bill-turned-act was undermined by a covert ordinance, designed to keep a noncompliant judge at bay and form benches to address pivotal pending cases. The 26th Amendment was similarly bulldozed, with debate treated as a bitter pill, swallowed only to secure the necessary numbers.

Now, nearly a year after the original Practice and Procedure Act, we have its amendment bill – again forced through parliament without deliberation. What’s certain is that meaningful debate and discussion have become casualties of political expediency. The opposition may protest loudly, but when necessity wields its stick, decorum is reduced to earplugs, a few cursory remarks, and a quick call for votes.

In such grave circumstances surrounding the passage of these laws, one looks to their content, hoping for some promise of salvation. Yet the content of our laws proves more disturbing than their form.

There are many flaws in both the 26th Amendment and the Practice and Procedure Amendment Act, but they share one unsettling aim: entrenching a division between constitutional and ordinary benches. This idea – originally proposed in the first draft of the 26th Amendment as constitutional courts – was abandoned, only to resurface in the final draft as constitutional benches.

Initially, the concept of constitutional benches seemed innocuous, a safer alternative to the complexities of a separate court. But this expectation hinged on a single crucial condition: that the chief justice, alongside a committee of sitting judges, would determine the composition of these benches. The purpose was clear – to prevent executive interference in judicial appointments, a principle that took decades to safeguard.

However, when constitutional benches were formalised in the amendment’s text, it was precisely this principle that was compromised. Under the 26th Amendment, judges will now be appointed by a judicial commission that, in name alone, appears judicial. With five government members on the 13-member commission, the government needs only two additional votes to secure a majority and appoint judges at its discretion.

However, we may leave aside the malice to focus on the operational problems built into the idea of separate constitutional courts/ benches: the aim that constitutional cases can be separated from non-constitutional cases.

The aim works in ideas and works on paper too, but fails badly in reality and this comes from the observation of countries with constitutional courts, especially countries like ours with a written constitution and a bill of rights – however gratuitous its guarantees.

The core issue is that there remains a constitutional dimension in disputes traditionally considered to belong to other areas of law, making it “…impossible to delimit any clear border between constitutional law and the rest of the legal system…”

The jurisdiction clause for constitutional courts or benches attempts to address this by defining areas where the constitutional bench has exclusive authority. For our Supreme Court, Article 191A(3) specifies three such jurisdictions: (a) original jurisdiction under Article 184, (b) appellate jurisdiction where a high court judgment or order involves the constitutionality of any law or a substantial constitutional question, and (c) advisory jurisdiction under Article 186.

Jurisdictions (a) and (c), when viewed through the lens of simplicity and separation, are relatively straightforward. The real challenge, however, lies in clause (b).

Consider the logistical issues. Clause (b) states that cases that ‘involve’ constitutional interpretation should be handled by constitutional benches. But what if constitutional interpretation is just one component among many in a case? Should such cases still be decided by the constitutional bench?

Our lawmakers chose not to grant ordinary courts referral jurisdiction – commonly found in countries with constitutional courts – through which individual questions of constitutionality could be referred by a hearing bench to constitutional benches. One SC judge’s concern that this could eventually leave ordinary benches with little to decide may prove insightful.

The ‘substantial question’ requirement is an attempt to bridge this gap, but it falls short and introduces challenges of its own. First, what qualifies as a substantial question? Relying on jurisprudence to define it produces only ambiguous answers. For example, when asked to define ‘consultation’ in the constitution, our Supreme Court described it as “effective, meaningful, purposive…” Regarding “satisfaction,” the court’s response was a negative clarification, merely stating that it is not an opinion.

While it is reasonable to say that the interpretation of such terms should be context-specific and determined through judgments, it is important to remember that these responses are given in a judicial capacity. This preliminary, administrative examination should not be clouded by vague or indecisive language.

The amendment bill also misses the question. It says that the judges nominated for the constitutional benches will decide whether the question is such a substantial question. It defines neither the criteria nor the metric for this decision; the only relief we have is that it will be through a “speaking order”.

While reiterating the critique that case maintainability should not be decided administratively – and that these standards effectively enforce just that – it’s essential to recognise a deeper rift: the original tension between constitutional and ordinary benches will now extend to their respective admissibility committees.

The amendment bill states that if the constitutional bench determines a matter to be outside its jurisdiction, the ordinary committee can take it up and form a bench. But what happens if the process runs in reverse? Imagine a case first brought before the ordinary bench committee, which finds no substantial constitutional question and sends it to an ordinary bench. However, if the constitutional committee also reviews the case and reaches a different conclusion, whose judgment prevails?

If the answer is the constitutional committee, then why should that be the case? Are constitutional bench judges presumed to possess superior knowledge and judgment? Even if that were true, an administrative decision is not intended to showcase acumen, leading the critique back in a circular pattern.

While logistical challenges could perhaps be managed over time and with experience, it’s the judicial implications that pose the real threat.

It is with the concept of constitutional benches that we, a common law country, get close to civil jurisdiction. However, like Icarus, closeness can burn. Civil law jurisdiction works on a no-precedent rule, where every interpretation is a new interpretation. Nothing binds save the law’s text. We do not have that here, or at least did not.

When a constitutional bench resolves a substantial question of constitutionality, one might assume that it’s no longer a ‘substantial question’ but rather a settled issue. In that case, similar matters in the future would fall to an ordinary bench. But would the constitutional court’s interpretation be binding on the ordinary bench? Surprisingly, neither the amendment nor the amendment act provides an answer.

This leads to the same dilemma faced by civil law countries with constitutional courts, where ordinary supreme courts sometimes choose not to follow the constitutional court’s interpretations. For example, Italy’s Court of Cassation – the ordinary supreme court – has stated, “The Constitutional Court’s interpretative decisions of [constitutional questions] do not have an erga omnes effect. They are, in this regard, distinct from findings of constitutional illegitimacy.” In simpler terms, a ruling on the constitutional illegality of an act or provision by the constitutional court may bind the full Supreme Court, but its straightforward constitutional interpretations do not.

We may encounter similar challenges here. Relying on the larger bench rule to enforce binding authority is a weak solution. What if the number of constitutional bench judges is smaller than the ordinary supreme court bench? Would their decisions then lack binding power?

This issue affects not only concurrent cases but also decided ones. For example, would decisions by the constitutional court under Articles 184 and 186, or on the constitutionality of a law, bind an ordinary court hearing a related case, especially if the ordinary bench is larger?

One could dismiss these concerns as overly cautious, but they may signal real problems emerging sooner than we anticipate. While the Supreme Court does have a backlog, it would be naive to think that the entire structure of constitutional benches with selected judges was established merely to resolve it. And even if backlog reduction was the intent, this framework stands on a shaky foundation that could easily crumble.

Simply increasing the number of judges would have been a more straightforward solution – but who cares about simplicity?

The writer is a law student

at the Lahore University of

Management Sciences (LUMS).