No preconditions to right to appeal

CB says unreasonable demands infringe upon rights

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ISLAMABAD:

A constitutional bench of the Supreme Court has disapproved attaching any condition with the right of appeal and declared it a violation of fundamental rights.

"Unreasonable conditions attached to an appeal would likely be one that is not justified, disproportionate or infringed upon the fundamental rights or the legal process. An unreasonable condition could make it impossible or unfairly difficult to exercise the right to appeal," reads a five-page judgement authored by Justice Jamal Khan Mandokhail.

He was hearing an appeal filed by Senior Joint Director Foreign Exchange Operations Division against Lahore High Court which had declared that section 23C (4) of the Foreign Exchange Regulation Act, 1947 (FERA) and rule 8 of the Adjudication Proceedings and Appeal Rules,1998 are unconstitutional.

A five-judge bench of the constitutional bench led by Justice Aminuddin Khan heard the matter.

"Similarly, conditions that obstruct the normal and fair functioning of the due process for an appellant, such as, the payment of excessive amount could be considered as unreasonable," the judgment adds. "There is no justification for deposition of such an excessive amount nor has it been shown that the condition attached to the appeal is with due regard to the public requirement."

Under section 23C of the FERA, a decision of the Adjudicating Officer, made under section 23B(4) is though appealable before the Foreign Exchange Regulation Appellate Board (Appellate Board), but it shall not be admitted for hearing unless the appellant deposits in cash with the Appellate Board the amount of penalty or, at the discretion of the Appellate Board, furnishes security equal in value to such amount of penalty, as provided by its subsection (4).

The main controversy for determination is whether the pre-condition of deposition of the amount of penalty for admission of an appeal as provided by section 23C(4) of the FERA and rule 8 of the Rules, is constitutional.

The judgement notes that there is always a possibility of error, mistake of facts or law in a decision at the level of initial forum, therefore, the right of appeal is a substantive right of an aggrieved person.

"It existed since the establishment of judiciary, with its primary function to protect against miscarriage of justice. A right of access to justice and a right to a fair trial and due process is a fundamental right of a citizen, guaranteed by Article 10A of the constitution, which includes an appeal to a higher, independent and impartial forum to scrutinize the decision of the fora below.