I would like to respond to media headlines where a panel of three Constitutional court judges are reported to have held that only five justices of that court can issue interim orders.
For a long time, the practice of the Constitutional court has been that a single justice or three justices of that court can entertain interim order applications. The full bench of five justices has been reserved to handle constitutional petitions which carry questions requiring interpretation of the Constitution.
By a stroke of a pen, the Constitutional court has now erased its own wealth of jurisprudence developed in this area which, in my view, had been well founded. I believe that this decision is not based on interpretation, which promotes the legislative purpose of the law.
According to the decision, all interim orders issued by a single justice or three justices of the Constitutional court are null and void and of no effect as already indicated above.
It would appear to me that going by the same reasoning of the court, their decision is also null and void since it was issued by three instead of the five justices they recommend. Perhaps the three justices should have referred the matter to five justices for a decision to be binding in the Constitutional court.
Having said that, I contend that the entertainment of the interim orders for an injunction in constitutional matters does not involve determination of a question requiring constitutional interpretation.
This mandate is vested in a panel of five justices of the Constitutional court under Article 137 of the Constitution. A constitutional question arises when a person alleges that any law, act or omission by any person or authority contravenes a provision of the Constitution.
But when a person seeks an injunction in the Constitutional court, he is not seeking an interpretation of the Constitution at that stage but, rather, he is seeking a preservation of his constitutional rights pending hearing of the main Constitutional petition. An interim injunction is not constitutional remedy per se, it is a civil remedy which can be granted by most judicial officers of any rank.
Indeed, other litigants in other courts can seek for injunctions to preserve their rights or property before a magistrate, registrar, a single judge of the High court, etc.
The Civil Procedure Act and rules which have been adopted as part of the practice and procedure of the Constitutional court (See Rule 23 Constitutional Court petition and Reference) Rules 2005) is the law under which injunctions are generally granted by the courts without exception.
Therefore, when a single justice or three justices of the Constitutional court are sitting to entertain an interim order application for a civil remedy of an injunction, they are properly exercising their power which is incidental to the constitutional interpretation sought.
Moreover, a constitutional court justice has a dual designation as a justice of appeal; so, his/her mandate is wide enough to grant the end of justice in interim order application.
I, therefore, do not agree that such a high-ranking judicial officer can be powerless to stop the continued violation of the constitutional rights of a litigant who has petitioned the Constitutional court through an interim injunction and yet a magistrate, registrar or judge of the High court can grant the same remedy.
The Constitutional court is already constrained by a shortage of manpower to handle constitutional petitions; how easy will it be for them to be constituted to hear interim order applications. This stance by the court, if allowed to stand, would amount to denial of the substantive justice on technicalities and it would render an unequal treatment of litigants under the law.
It would be beneficial to the legal fraternity and the public for this decision to be tested on appeal so that this uncertainty can be settled once and for all.
The author is a lawyer.