The Supreme Court ruled that its jurisdiction could not be extended by provincial law but by an act of Parliament.
“The legislative competence of a provincial assembly, in respect of the jurisdiction of the courts, can reach only the relevant high court and no further,” reads a 17-page judgment written by Judge Munib Akhtar during the Khyber-Pakhtunkhwa review. Medical Education Institutions Reform Act 2015.
A divisional bench of the Supreme Court, led by Justice Ijazul Ahsan, questioned whether or not the SC could hear an appeal brought to it under Section 212(3) against an order of a tribunal established by provincial law if it contradicts a provision of this article.
“As far as the jurisdiction of this court is concerned, only the federation has or can have legislative jurisdiction in this regard. The principle just stated can also be rephrased as follows: Of the several legislatures created by the Constitution, only parliament can (if need be) pass legislation which acts on or affects the jurisdiction of this court (Supreme Court) . Provincial assemblies cannot do this,” the verdict adds.
The judgment stated that the Constitution of the country dealt with and established the state organs at the federal and provincial levels.
She added that she distributed the competences, powers and jurisdictions involved in each case both horizontally (among the different bodies at a given level) and vertically (between each body at the federal and provincial levels).
“As far as the judiciary is concerned, the Supreme Court sits at the top of the system, and in each province, the high court is the highest court,” he added.
The court noted that until the changes made by the 18th Amendment in 2010, the current Constitution had two lists, one exclusive to the federation and the other competing between it and the provinces.
“The corresponding Federal List entry (#55) has been noted. Listing No. 46 of the concurrent list, as was the case with other such lists in previous constitutional configurations, provided for legislative jurisdiction with respect to the jurisdiction and powers of all [the] courts but expressly excluded the Supreme Court. The position is therefore clear. Only parliament can (if necessary) pass legislation which affects or affects the jurisdiction of this court. The provinces do not have such legislative competence,” the judgment adds.
The judgment said that it should be remembered that the federation could not be compelled to enact the relevant law.
“If the provincial assembly wishes to close all legal recourse and leave only the way to this court, it must first pass the necessary resolution and this must then be followed by a federal law. It is only then, and under [the] cover of an Act of Parliament, that the door to this court is open. If the provincial assembly does not wish to go this route or if the parliament refuses to enact the enabling law in terms of proviso, then the door to this court remains closed,” reads the verdict.
The Court also noted the question of the establishment of courts in connection with the district courts in the provinces and the federal capital.
“The Act of 2016, in respect of the Islamabad Capital Territory, does not present any difficulty. It is federal legislation and clause (2) automatically applies to it. The door to clause (3) is therefore open. However, this is not the case in respect of provincial legislation, namely the KP Act 1991, the Punjab Act 1991 and the Balochistan Act 2021”, add judgment.
“The position of the courts set up under these Acts is no different from that set up under the KP Act 2015. Therefore, for the same reasons, no remedy before this court is (to presently) admissible under section 212(3) against [the] decisions of the respective courts. The position in Sindh requires separate consideration,” the verdict read.
The judgment noted that the Court for the District Court System was established through amendments to the Sindh Service Courts Act 1974.
“The amendments were made by the Sindh Act 1991, a purely amending law. Now the Sindh Act 1974 initially created an Administrative Court which is covered by the proviso of the 1974 Act. Appeals of this court belong to this court under the terms of article 212, paragraph 3. What about the new court created by way of insertions in the said law? the 1974 law? However, the general rule relating to a purely amending law is that it lapses as soon as it enters into force, the modifications being immediately incorporated into the text of the law being amended”, reads- one in judgment.
The verdict ruled that no appeal was available to the SC under section 212(3) against the decision of a tribunal created by provincial statute to which the reservation of clause (2) did not apply. not been applied.
“All clearance requests and pending appeals, being inadmissible, should be returned immediately by the office and no such clearance request should be admissible in the future,” he said. note.
The order stated that motions and/or appeals that had already been decided or disposed of (including by being withdrawn or dismissed or otherwise dealt with), whether by way of detailed judgment or short order, whether announced orally or in writing and whether or not detailed reasons are expected in respect of such matter, all such matters shall be considered past and closed.
“The Registrar shall cause a copy of this Judgment to be forthwith sent to the Registrars of all the Courts to which sub-paragraph (a) applies and the said Registrars shall forthwith bring it to the knowledge of the Presidents and Members of the said Courts, “, we read in the verdict.
“It is the responsibility of each presiding judge to ensure that until clause (2) of section 212 becomes applicable to the court, the following caption (or similar) is properly incorporated into the title page of each decision of this for the benefit of all litigants: this tribunal is not covered by the proviso (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan and hence no application for leave or appeal cannot be appealed to the Honorable Supreme Court of Pakistan under the terms of clause (3) of the said article,” he added.