REQUEST TO THE PARLIAMENT FOR JUDICIAL REFORMS IN RELATION TO THE JUDGMENTS OF THE SUPREME COURT.

Finality of the Supreme Court's Judgments:

                   Res judicata is a concept in the Code of Civil Procedure Code, 1908 and has been discussed at length in Section 11 of that Code. The concept is quite clear to the Judges from bottom to top, Lawyers and those who have thoroughly studied it. This concept must be applied on the Supreme Court Judgments especially when one of the litigants is the Government either of Pakistan or of a Province.

                   My point of discussion is to bring under consideration the agitation of a matter particularly related to the interpretation of either Constitutional law or any other law in the Supreme Court repeatedly.

                   When a case/matter relating to the interpretation of law is instituted in the Supreme Court for adjudication and is fixed for hearing before any number of Judges that judgment must be declared final and no such case based on those facts which had been adjudicated upon in the earlier Judgment of the Supreme Court must be accepted/allowed for hearing in the future.

                   When a law is promulgated in the Country, it is the duty of the Court to take judicial notice of the law. When facts discussed in the case before any number of Judges and decided according to the law, then there is no need to constitute further benches for discussing that matter before a larger bench or full Court because the nation has seen much fruits of such benches in the past and even the Presidential reference against the ex-Chief Justice was treated in the such manner and was finally put before the Full Court instead of proceeding in the Supreme Judicial Council which led to the deposition of all the Judges and creation of the Judicial crisis in the Country. Actually, the Judges or the lawyers had never seen such a phenomenon in the past that a Chief Justice can be accused and can be put before a Constitutional body called Supreme Judicial Council. Therefore, they resented this. Their point of resentment is that why a Chief Justice was charged and his case was sent to the Supreme Judicial Council otherwise many people were accused of various kinds of charges and were put behind the bar but no lawyer ever raised a slogan for those Politician, Bureaucrats, Military men, businessmen, journalists etc. They were in the habit of only bringing other people in the Courts for their trials because some of the lawyers were receiving huge amounts from the Government while were receiving from the accused persons and thus their profession flourished. They considered it as an insult to their prestige and a blow to their honour that a Chief Justice as an accused person before a place where he can be asked to clarify his position. The present crisis would have never had such momentum if the political parties had not considered it an excellent opportunity to get political benefit from it. It was necessary for the ex-Chief Justice to face the enquiry against himself in order to come out with clean hands from the SJC but he preferred to depend upon the political parties and their leaders rather than to have a course of law provided in the Constitution. The jurists have told us the maxim that "those who come to the Court should come with clean hands". I am neither in favour of the ex-Chief Justice nor against him but want that it was necessary for him to face the SJC where persons of his legal fraternity were supposed to hear his case. President Musharraf had not brought people from an alien place or people of his choice but every thing was on the merits. Anyhow, what happened is now a chapter of the history.

                   I come back to my original topic. A law is either law or not a law there is nothing between it. When it is declared that there is no law to cover the facts stated in a case, it should be considered final because the Judges hearing the case and the lawyers arguing a case know it very well what is law or not a law or whether a law is in conformity with the Constitutional provision or repugnant to it.

                   At present, one bench decide a case and give benefit to the litigants on some facts and a ruling is made in the judgment. After some years, another bench decide the same facts in another was and takes away the right to the people given in the previous judgments and thus destroys the rights of the people by dint of judgment of more Judges.

                   Government either of Pakistan or of a Province is a necessary party in such like cases and the Government comes against its employees to the Court with hope to defeat its employees. It is also astonishing that Government does not get satisfaction until it defeats its employees in the Supreme Court.                                           People at present are much confused with this concept of dispensation of justice and diverse interpretation of laws when the beneficiary is the Government of the time and not the citizen of Pakistan who is forced to spend much money in the Court by giving huge fees to the lawyers. Finality and certainty is the spirit of law but it does not exist at present. Under the Constitution, all the departments are working in aid of the Supreme Court. Now if the Supreme Court decides a question in one way at one time and in another way at another time then it will create many problems for the departments instead of resolving those issues. It will create two categories of Civil servants, one benefited by those judgments, second those who are deprived of the right available to the servants of first categories performing same duty and having same qualification.

                   The Parliament should reform the laws relating to the procedure in the Supreme Court in such a way to stop the trend of constituting larger and larger benches, some of which will give a right to the people and others will take away.

                   The Supreme Court jurisdiction should cease during hearing at a point when it is proved that a judgment of the Supreme Court exists on the facts/issues in the running case. At that stage, the Supreme Court should dismiss the case in limine.

                   The Supreme Court has deprived the teachers of NWFP from annual increment in the year 2002. In 1976, they had been declared entitled but in 2002, they were declared not entitled.

                   I leave it to the eminent Jurists, both domestic and foreign to help us in solving this matter of finality of the judgment of the Supreme Court otherwise the same matters would be agitated in different Governments and the ultimate sufferers would be the people of Pakistan.

                   The Judgments of the Supreme Court must be beyond any shadow of doubt or suspicion because the Supreme Court plays a major role in the protection of the rights of the people and people must consider it a final place for their rescue with full certainty.

Manzoor Ahmad

B.Sc; L.L.B M.A. Political Science,

Marghuz Balar Khel, District Swabi, NWFP

Email: manzoorahmadjalalmallb@hotmail.com

Dated: Tuesday, 15 May 2008.