—— Apex Court by majority of 10 to 5 has upheld the Supreme Court (Practice & Procedure) Act 2023
—— Court rules retrospective right of appeal unconstitutional
—— Verdict acknowledges parliament’s right to legislate under Article 191
ISLAMABAD: Supreme Court on Tuesday upheld the Supreme Court (Practice & Procedure) Act 2023 with a majority vote of 10 to 5.
In a short order announced by Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa, majority judges decided against the provision of law wherein right of appeal was given retrospectively. So no appeal can be filed against Panama judgement.
The judgement is a big relief to former CJPs and their like-minded judges whose jurisprudence was under threat on account of extending the right of appeal to grievance persons from past under this law.
“By a majority of 10 to 5 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) the Supreme Court (Practice and Procedure) Act, 2023 is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan and to this extent the petitions are dismissed,” the apex court’s short order stated.
“By a majority of 9 to 6 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) sub-section (1) of section 5 of the Act (granting a right of appeal prospectively) is declared to be in accordance with the Constitution and to this extent the petitions are dismissed,” it ruled.
“By a majority of 8 to 7 (Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Musarrat Hilali dissenting) sub-section (2) of section 5 of the Act (granting a right of appeal retrospectively) is declared to be ultra vires the Constitution and to this extent the petitions are allowed.”
Earlier, CJP Isa remarked that institutions should not be pitted against one another as the apex court concluded proceedings on a set of petitions challenging the Supreme Court (Practice & Procedure) Act 2023.
The top judge stressed that institutions were not perfect and should be developed with “mutual respect”. He observed that the Parliament is not the enemy of the apex court while stressing that both institutions could function simultaneously.
As the hearing wrapped up, CJP Qazi Faez Isa said a short order would soon be announced if the full court reaches a consensus after deliberation. Otherwise, the judgment would be reserved, he added.
Questions have been raised on Parliament’s competence to regulate the administrative workings of the Supreme Court (SC) as well as transparency in the internal workings of the judiciary during past hearings. Moreover, whether the law is taking away the CJP’s powers or the apex court’s has been debated extensively during proceedings.
The law in question, passed by Parliament in April 2023, regulates discretionary powers of the chief justice of Pakistan (CJP) by requiring a committee of three senior judges of the apex court, including the CJP, to form benches for constitutional matters of public importance and taking suo motu notice.
A full court led by CJP Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali, had taken up nine review petitions against the 2023 Act.
The petitioners view the law as an attempt to clip the powers of the CJP and pave the way for Parliament to interfere in the inner workings of the apex court.
Today (Wednesday) was the fifth hearing on the matter, which has been live telecasted since the proceedings began.
The court intended to conclude the case yesterday (Tuesday) but the hearing was adjourned due to time constraints.
The attorney general of Pakistan (AGP) and the Pakistan Bar Council presented arguments today while the Muttahida Qaumi Movement-Pakistan’s counsel completed arguments at the previous hearing.
The hearing began today with the Attorney General of Pakistan (AGP) presenting his arguments which centered on Article 191 of the Constitution of Pakistan and the independence of the judiciary.
Article 191, pertaining to rules and proceedures, states, “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.
The AGP argued that there were no restrictions on the Parliament amending rules under Article 191.
This prompted Justice Ahsan to ask whether there were any restrictions on the apex court amending laws created by the Parliament.
To this, the AGP asserted that Parliament is the institution which creates laws. If the number of pending cases before the top court surpasses 70,000, there may arise a need to create another law, he added.
When Justice Naqvi inquired about the number of lawmakers who debated on the Act in question, the AGP maintained that it was available on the website.
At one point during the hearing, the AGP contended that the Constitution never acknowledged the top judge as the “master of the roster”, which prompted the court to discuss the genesis of the term.
The AGP apprised the court that it was a colonial term.
Justice Akhtar questioned that if the discretionary powers were not being given to one judge under the Act then why were they being given to three judges.
During the proceeding, CJP Isa observed that the Parliament is not an enemy of the Supreme Court. Both insituitions could function simultaneously, he said, besides stressing that institutions “should not be pitted against one another”.
“Parliament is not our enemy neither does it consider us enemies. Both can be run simultaneously,” he said.
The CJP remarked that institutions were not perfect and they should be developed. He called for mutual respect among them.
He was of the view that it was not acceptable for the Parliament to be restricted and the apex court to keep making decisions. The CJP recalled that orders were issued in the past where judges were restrained from being part of the bench.
Meanwhile, Justice Akhtar emphasized that the Constitution has to be read on the premise there would be constitutional conventions. –Agencies
