ISLAMABAD: Pakistan’s top court on Wednesday rejected all petitions and upheld the Supreme Court (Practice and Procedure) Act 2023 which restricts the powers of the Chief Justice of Pakistan and requires a committee of three senior judges to form benches for constitutional matters and suo motu notices.
The apex court full bench headed by Chief Justice Qazi Faez Isa reserved the verdict earlier today on the pleas challenging the law after conducting a total of five hearings since September 18.
The Supreme Court dismissed all the petitions against the Practice and Procedure Act 2023, and sustained the law with a majority of 10-5.
Chief Justice, while reading the decision, remarked that five members of the full court bench, Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Ayesha A Malik, Justice Sayyed Mazahir Ali Akbar Naqvi, and Justice Shahid Waheed, had expressed their opposition to the law.
Supreme Court Declares Retroactive Appeal Right in SC (Practice and Procedure) Act Unconstitutional
Justice Qazi Faez Isa noted that with a majority of 8-7, sub-section 2 of section 5 of the act, which pertains to the retroactive granting of the right to appeal, has been declared ‘ultra vires’ or in violation of the Constitution.
Chief Justice Faez Isa, Justice Sardar Tariq Masood, Justice Jamal Khan Mandokhail, Justice Amin-ud-Din Khan, Justice Syed Mansoor Ali Shah, Justice Athar Minallah, and Justice Musarrat Hilali were in favour of sub-section 2 of section 5 of the act. However the majority declared sub-section (2) of section 5 of the Act as ‘ultra vires’ the Constitution.
With a majority of 9-6 (including dissenting, Justices Ahsan, Justice Akhtar, Justice Yahya Afridi, Justice Naqvi, Justice Malik, and Justice Waheed), sub-section (1) of section 5 of the Act, which grants a right of appeal prospectively, is declared to be in conformity with the Constitution.
The ruling recognizes the parliament’s authority to legislate under Article 191, which specifies that the SC rules are subject to the Constitution.
This law will come into effect on April 21, 2023, the day it was enacted. Consequently, Supreme Court verdicts under Article 184(3) issued after this date can be subject to review.
Earlier in concluding remarks, Chief Justice Qazi Faez Isa had announced that the court would discuss the case internally and, if a consensus is reached, the decision will be announced; otherwise, the verdict will be reserved. The hearing concluded with arguments from all the petitioners, including political parties. All political parties except the Pakistan Tehreek-e-Insaf (PTI) expressed support for the Act.
The Supreme Court Bar Association opposed the Act, while the Pakistan Bar Association supported it.
Chief Justice Isa presided over a full-court bench consisting of several other justices, and before concluding the hearing, he remarked that Parliament was not an enemy of the Supreme Court. He emphasized that both institutions should not be pitted against each other but rather should coexist harmoniously, as neither considers the other an enemy.
Beginning his arguments, Attorney General for Pakistan Mansoor Usman Awan addressed three questions raised during the hearing. He discussed Article 191 and the independence of the judiciary, the Parliament’s authority as the master of the roster, the right to appeal, and the question of appealing against the decision of a full court.
The Attorney General argued that fundamental rights enshrined in various articles of the Constitution are exercised in accordance with the law. He stressed that the right to privacy is regulated by law and mentioned that Article 191 empowers Parliament to legislate.
The judges raised several questions and concerns during the hearing, including whether the Act affects the independence of the judiciary, the interpretation of the term “law” in Article 191, and the Parliament’s authority to legislate. The Attorney General asserted that the law did not undermine the independence of the judiciary and defended the Parliament’s power to legislate under Article 191.
Justice Munib Akhtar raised the point that if Parliament has not taken action under Article 191 since 1973, it might imply that Parliament accepted that the article did not permit additional legislation.
Justice Athar Minallah pointed out to the Attorney General that Article 191 doesn’t merely state “law” but includes the phrase “subject to law.”
The Chief Justice of Pakistan suggested that “subject to law” could also encompass legal judgments. Perhaps Parliament retained these words in this manner in anticipation of future legislation.
Attohenry General Argument on Act
The Attorney General argued that the rules of the executive and Parliament have the status of law but are not referred to as such in Article 191.
Furthermore, the AGP mentioned his intent to argue regarding Parliament’s role as the master of the roster, the right to appeal, and the issue of appealing against decisions made by a full court.
He emphasized that fundamental rights, as outlined in Articles 14, 20, 22, and 28, are exercised in compliance with the law. He also noted that the right to privacy is governed by law and underscored the role of Article 191 in empowering Parliament to legislate.
The Chief Justice then inquired whether the term “law” in Article 191 held a distinct meaning compared to its usage in other constitutional provisions.
The AGP explained that the authority to legislate on matters like the High Treason (Punishment) Act and the Right to Information Act stemmed from constitutional provisions and that Parliament did not rely on the Federal Legislative List for these laws.
He emphasized that Article 191 had remained unamended since the enactment of the Constitution, underlining the importance of this consistency in upholding the judiciary’s independence.
Justice Akhtar pointed out that, according to the 1956 Constitution, rule approval lay within the domain of the president or governor-general. He questioned why, if the AGP’s argument was accepted, Parliament had not approved the Supreme Court rules before.
The AGP clarified that the exercise of power did not imply a lapse of Parliament’s authority. He also stressed that the absence of amendments to Article 191 did not signify a relinquishment of its authority, as this article served as the basis for the Practice and Procedure Law.
Justice Ahsan raised concerns about how the Supreme Court law might affect judicial independence, prompting a discussion about the meaning of the term “law” in the Constitution.
The AGP responded by noting that laws were created either by Parliament or by judges, and Justice Akhtar emphasized the significance of Article 8 in preventing legislation that infringes upon fundamental rights.
The AGP insisted that Parliament had the authority to legislate under Article 191 but added that Parliament could not legislate against the independence of the judiciary.
Justice Ahsan questioned whether the Act under consideration would strengthen or weaken the independence of the judiciary.
The AGP explained that his responses would be based on the principles of the separation of powers and the independence of the judiciary, asserting that the law in question did not undermine judicial independence.
Justice Minallah pointed out that the words “subject to law” were crucial, and Justice Akhtar highlighted the distinction between Article 191 and other constitutional articles, particularly those related to fundamental rights.
In response, the AGP stated that the demand not to exercise power should not be interpreted as the termination of Parliament’s authority.
Justice Akhtar Questions Provincial Assembly Enactment
Justice Akhtar inquired why provincial assemblies are not authorized to enact laws.
Justice Ahsan pointed out that the framers of the Constitution could have explicitly stated that the Supreme Court (SC) could establish its own rules until legislation was passed. He found it unclear whether the intention of the framers allowed SC rules to be changed by legislation.
Justice Ahsan further noted that Article 191 did not explicitly state that it would create both laws and rules.
The AGP clarified that the term “law” in Article 191 did not encompass the rules from 1956.
CJP Isa questioned where in the Constitution it mentioned that court decisions would also be considered as laws. He emphasized the importance of adhering to court decisions and their implementation.
Justice Ahsan asked whether the rules of the executive and Parliament were considered laws.
The AGP later stated that the rules of the executive and Parliament held the status of law but were not referred to as laws, as indicated in Article 191.
Justice Naqvi asked why the Parliament had not addressed this issue for 43 years if the last Supreme Court rules were established in 1980.
The AGP suggested that if the number of pending cases in the Supreme Court increased, Parliament might need to enact new laws.
The Attorney General argued that the rules of the executive and Parliament have the status of law but are not referred to as such in Article 191.
Furthermore, the AGP mentioned his intent to argue regarding Parliament’s role as the master of the roster, the right to appeal, and the issue of appealing against decisions made by a full court.
He emphasized that fundamental rights, as outlined in Articles 14, 20, 22, and 28, are exercised in compliance with the law. He also noted that the right to privacy is governed by law and underscored the role of Article 191 in empowering Parliament to legislate.
The Chief Justice then inquired whether the term “law” in Article 191 held a distinct meaning compared to its usage in other constitutional provisions.
The AGP explained that the authority to legislate on matters like the High Treason (Punishment) Act and the Right to Information Act stemmed from constitutional provisions and that Parliament did not rely on the Federal Legislative List for these laws.
He emphasized that Article 191 had remained unamended since the enactment of the Constitution, underlining the importance of this consistency in upholding the judiciary’s independence.
Justice Akhtar pointed out that, according to the 1956 Constitution, rule approval lay within the domain of the president or governor-general. He questioned why, if the AGP’s argument was accepted, Parliament had not approved the Supreme Court rules before.
The AGP clarified that the exercise of power did not imply a lapse of Parliament’s authority. He also stressed that the absence of amendments to Article 191 did not signify a relinquishment of its authority, as this article served as the basis for the Practice and Procedure Law.
Justice Ahsan raised concerns about how the Supreme Court law might affect judicial independence, prompting a discussion about the meaning of the term “law” in the Constitution.
The AGP responded by noting that laws were created either by Parliament or by judges, and Justice Akhtar emphasized the significance of Article 8 in preventing legislation that infringes upon fundamental rights.
The AGP insisted that Parliament had the authority to legislate under Article 191 but added that Parliament could not legislate against the independence of the judiciary.
Justice Ahsan questioned whether the Act under consideration would strengthen or weaken the independence of the judiciary.
The AGP explained that his responses would be based on the principles of the separation of powers and the independence of the judiciary, asserting that the law in question did not undermine judicial independence.
Justice Minallah pointed out that the words “subject to law” were crucial, and Justice Akhtar highlighted the distinction between Article 191 and other constitutional articles, particularly those related to fundamental rights.
In response, the AGP stated that the demand not to exercise power should not be interpreted as the termination of Parliament’s authority.
‘Supreme Court is like Titanic’
Justice Yahya Afridi remarked that if there were mistakes in the Supreme Court, similar there were also shortcomings in the Parliament. He questioned Practice and Procedure law, saying whatever the problem was should have been fixed by Parliament.
Linking the Supreme Court to a Titanic, Justice Afridi remarked the view that it wasn’t appropriate for Parliament to reorganize everything suddenly. He emphasized the need for a mechanism governing Parliament’s exercise of its powers.
Justice Mandokhail questioned the timing and purpose of Parliament’s legislation and whether it was intended to distribute power. He also noted that the Constitution did not specify who would form the bench.
Justice Munib Akhtar remarked that the master of the roster committee would carry out equivalent functions to those of the chief justice. He questioned the need to assign these powers to three judges if the rationale was to avoid leaving the decision solely in the hands of one judge.
He further asked, “If you don’t want to leave 4 judges on the mercy of one judge, how can we justify giving power to three judges and leaving 12 judges on their mercy?
What is The SC Practice & Procedure Act 2023?
The law grants the authority to initiate suo motu notice to a three-member committee composed of senior judges, including the Chief Justice, with the aim of ensuring transparency in the Supreme Court’s proceedings. It also establishes the right to appeal.
In terms of constituting benches, the Act specifies that all cases, issues, or appeals brought before the Supreme Court will be heard and resolved by a committee consisting of the Chief Justice and the two most senior judges. Decisions by this committee will be made by a majority vote.
When it comes to the exercise of the Supreme Court’s original jurisdiction, the Act outlines that any matter invoking the use of Article 184(3) must first be presented to the committee.
In cases requiring the interpretation of the Constitution, the Act mandates that the committee form a bench comprising no fewer than five Supreme Court judges.
Regarding appeals for any verdict issued by a Supreme Court bench that invoked the jurisdiction of Article 184(3), the Act stipulates that such appeals must be filed within 30 days of the bench’s decision and will be reviewed by a larger Supreme Court bench. These appeals should be scheduled for a hearing within a maximum of 14 days.
Additionally, the right to appeal is extended retroactively to individuals who were affected by an order under Article 184(3) before the commencement of the SC (Practice and Procedure) Act 2023, provided that the appeal is filed within 30 days of the Act’s implementation.
The Act also affirms the right of a party to select its legal counsel when submitting a review application under Article 188 of the Constitution. Furthermore, it mandates that applications citing urgency or seeking interim relief in a case, appeal, or matter must be scheduled for a hearing within 14 days from the date of filing.
