The ruling party never ceases to impress with its ability to maneuver the Panamagate controversy - the latest move being the Twenty Fourth Amendment Bill. This Bill seeks to amend the Constitution and introduce a right of appeal against an order of the Supreme Court passed under Article 184 (3) of the Constitution, colloquially known as its “suo motu jurisdiction”.

From the version of the Bill available on the National Assembly’s website, the stated object and reason behind this Bill is to provide a right of appeal “in conformity with the fundamental right to fair trial and due process”. The argument is simple. The Supreme Court has increasingly been taking notice of various issues under Article 184 (3). All human beings are capable of making errors and the cost of an error in matters of “public importance” is extremely high. While an aggrieved party can petition the Court to correct errors under its review jurisdiction, this jurisdiction is limited in scope and ordinarily requires the matter to be heard by the same judges that heard the original case. Accordingly, a right of appeal is needed whereby aggrieved parties can challenge de novo orders of the Supreme Court.

While the reasoning behind the Bill may appear to be sound, its timing could not be worse. It isn’t too hard to see the real reason behind this move: the Prime Minister and/or his family fear an adverse order by the Supreme Court and require this constitutional amendment to stall any such order. This intention is all the more evident from the fact that last year a similar bill had been rejected by the ruling coalition itself, even as the PPPP and the Supreme Court Bar Association expressed support for it.  At that time, of course, the Panama Papers were not a controversy and the Supreme Court was led by a relatively less intrusive and accommodating Chief Justice. The times have changed.

But let us for a second assume that the Government means well and actually seeks to further our liberty and collective welfare through this constitutional amendment. Should we support it now? Emphatically no!

The powers of the Supreme Court under Article 184 (3) are similar to those conferred on the High Court under the Article 199 of the Constitution. The only difference being that a person can approach the Supreme Court directly in cases involving “public importance”. In a sense therefore Article 184 (3) was designed to provide fast track judicial review of government actions that may adversely affect the populace at large.

Though the Court itself has expanded the reach and applicability of this Article to actions which arguably no longer involve matters of public importance, this should not take away from what is on offer: fast track justice against government action.  We need more of this, not less.

In a study conducted at the Supreme Court, we discovered that civil cases take on average more than 20 years to be finally decided once all appeals have been settled. The solution obviously is not making the Supreme Court a court of first and last instance in every case. A robust overhaul of our justice system is needed. But at the same time we must be careful not to practically foreclose what is in many cases the only avenue for meaningful and timely justice against government action.

Practicalities  aside, the reasoning behind the 24th Amendment is misplaced. Yes, all human beings can make errors. And yes, a right of appeal is an essential component of a fair trial for this very reason. But this argument becomes less relevant at the Supreme Court level.  Unlike a trial court, cases at the Supreme Court are typically heard by benches of two or more judges with greater time, experience and resources at their disposal as compared to civil judges/magistrates. The propensity of an error is therefore significantly less. And if there are any blatant errors, these can be corrected through the review jurisdiction.

Even otherwise, if we can’t expect judges of the Supreme Court to get it right the first time, then why should we expect them to get it right when they decide the thousands of appeals which reach their doors from courts all over Pakistan.

The language of the 24th Amendment Bill also leaves quite a few open questions.  For instance, the Bill does not clarify what happens to judgments under appeal? Will they be suspended while the appeal is being heard (a critical matter in the event of a disqualification decision against the Premier? The Supreme Court Rules, as presently, worded do not envisage an automatic stay of execution of the order upon filing of an appeal. This stay must be granted expressly by the Court.

More so, the Bill only mentions that appeals are to be heard by a larger bench: can the same judges be a part of the appellate bench? The larger bench requirement would also create some practical issues. What happens to cases heard by nine or more judges (we only have seventeen judges at the moment)? Readers may recall that important cases like the 21st amendment case were heard by a full court. Where would appeals from these decisions lie?

Importantly, the bill is silent in so far as past decisions are concerned. The Supreme Court has decided some of the most important (and controversial) cases under its Article 184 (3) jurisdiction including matters like providing rights to transgender people and mandating local government elections. Can aggrieved parties immediately challenge these decisions upon the passage of the Bill? If so, this would create much uncertainty for our legal system.

As law students, we are frequently instructed to avoid reading laws in a manner which would lead to an absurd result. It is a presumption that the Parliament is well meaning and seeks to avoid absurdities.  If the 24th amendment passes, which is likely with PPPP’s support, it would be good time to revisit this presumption.