Scope of Primary and Secondary Legislation: A Critical Analysis of Adjudication Mechanism of Section 33 of the SECP Act, 1997 with Appellate Bench Rules 2003

Abstract

The principle of the rule of law is a core characteristic of fair and equitable adjudication. Judicial or quasi-judicial adjudication mechanisms cannot work effectively unless these are based harmonized structure of primary and secondary legislation. The Securities and Exchange Commission of Pakistan is a quasi-judicial administrative body that functions under the ambit of primary and secondary legislation. Synchronized legislation is pivotal to ensure that the actions of administrative bodies are legally correct. SECP is empowered to adjudicate the violations and non-compliance cases under the laws governed by it. In this adjudication process, section 33 of the SECP Act, 1997 authorizes the Appellate Bench to adjudicate appeals whereas the Securities and Exchange Commission of Pakistan (Appellate Bench Procedure) Rules, 2003(Rules) provide a detailed procedure of filing and adjudication of appeals. Furthermore, the Rules also provide a provision with respect to a larger bench, however, no such mandate is provided under Section 33 of the SECP Act, 1997. Apparently. Primary and secondary legislation are in conflict and it is a settled principle of law that secondary legislation cannot override or enhance the mandate and scope of primary legislation. The conflict between primary and secondary legislation cannot be cured through a harmonized interpretation approach, hence, either conflict between primary or secondary legislation may be removed through appropriate amendments in the SECP Act, 1997, and in the Rules or it should have been dealt with under judicial review.