- Majority of 10 members declare SC Practice and Procedure Act 2023 as Constitutional
- Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Naqvi, Justice Ayesha Malik and Justice Shahid Waheed write dissenting note
ISLAMABAD: The Supreme Court, in a full court session on Wednesday, ruled that the SC (Practice & Procedure) Act, 2023 — which requires a committee of senior judges to form benches for constitutional matters and suo motu notices — was “sustained as being constitutional” and rejected petitions against the law in a majority verdict.
Reading the reserved verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa said that “a majority of 10-5 (Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting), the SC 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”.
“By majority of 9-6 (Justice Ahsan, Justice Akhtar, Justice Afridi, Justice Naqvi, Justice Ayesha and Justice 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,” he ruled.
Sub-section 1 of Section 5 of the Act says: “An appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days”.
“By a majority of 8-7 (CJP 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,” the verdict added.
Sub-section (2) of Section 5 of the practice and procedure law says: “The right of appeal under sub-section (1) shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act.”
The practice and procedure law, which was passed by Parliament in April, states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.
The law was seen by the petitioners as an attempt by the government to curtail the chief justice’s powers.
In April, the Supreme Court, then led by former chief justice Umar Ata Bandial, barred the government from implementing the law until the petitions challenging it were decided. The decision was taken by an eight-member bench consisting ex-CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Sayyed Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha, Justice Syed Hasan Azhar Rizvi and Justice Waheed.
A day after he was sworn in, on September 19, incumbent CJP Qazi Faez Isa resumed hearing the petitions with a full court and ordered live-streaming of the entire proceedings.
Today’s judgment comes after five proceedings were conducted on the matter. At the previous hearing, an exchange between judges and counsel hinted at the disquiet among judges over the court’s workings.
The hearing
At the outset of the hearing today, Attorney General for Pakistan (AGP) Mansoor Usman Awan presented his submissions. He said his arguments would be based on the government’s written response submitted in court.
“You are saying you not repeat the arguments but will highlight them,” the CJP said here, to which Awan stated that he would talk about the independence of the judiciary and Article 191 of the Constitution.
Article 191 (Rules of procedure) states: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”
The AGP added that three questions were raised during the proceedings on the matter in discussion and he would respond to them. He said Article 191 did not take away the Parliament’s right to legislate.
“Parliament has given the judiciary its independence but has also not limited its right to legislate,” Awan said.
Here, Justice Akhtar recalled that before 1973, changes to SC rules were conditional to the permission of the governor general or president.
For his part, the AGP said there were no restrictions on the Parliament amending rules under Article 191.
“Are you saying that there are no restrictions on the Parliament amending rules formulated by the SC?” Justice Ahsan asked. “So are there no restrictions on SC amending laws created by the Parliament?”
Awan replied that the Parliament was the institution that created laws. He further stated that if the number of pending cases in the apex court crossed 70,000 a need may arise to create another law.
Meanwhile, Justice Naqvi asked if the AGP had brought the record of the number of parliamentarians who had debated on the practice and procedure law. “It is present on the website,” Awan replied.
At one point, CJP Isa said institutions should be “pitted against each other” and there should be mutual respect among them.
“In my opinion, the Parliament respected the SC. If it wanted, the Parliament could have taken another step which it did not. I believe that step was not taken because the Parliament trusts us,” he said.
The top judge further stated that the scope of the matter should not be widened. “Parliament is not our enemy neither does it consider us enemies. Both can be run simultaneously,” he said.
“The world is moving forward while we are going backwards. There are a number of challenges that we are seeing, including climate change,” Justice Isa added and cited the phrase “live and let live”.
“The world moves forward together, not antagonistically,” the apex judge said.
He then instructed the AGP to focus on the attack on the Constitution.
Resuming his submissions, Awan said the Constitution did not recognise any convention but didn’t recognise customs or usages having the force of law.
However, Justice Akhtar stressed that the Constitution has to be read on the premise that there have to be constitutional conventions.
For his part, the AGP said the Constitution never acknowledged the CJP as the “master of the roster”. Here, Justice Isa interjected and asked about the genesis of the term and whether it was even used today. Awan replied that the term came from the colonial British times.
The CJP again questioned if such a term existed in Islamic history and criticised the dependence on “colonial masters”.
At one point, Justice Akhtar said that the master of the roster committee, under the new law, would do the same work that the CJP used to do. If you don’t want to give the power to one judge, why give it to three judges, he asked.
“If any CJP has not given the power to full court in the past, then you do it,” the judge remarked.
On the other hand, Justice Ahsan said the foremost question was whether the Parliament was competent and the second was that if the Parliament was competent, some provision of the law inconsistent with the Constitution could be struck down.
“You would have to take us to each provision and justify that it is not in conflict with any provision of the Constitution,” he added, asking the AGP to proceed.
Meanwhile, the CJP said that it wasn’t acceptable that the Parliament was restricted while the SC kept taking decisions, recalling that orders have been passed in the past where judges were restrained from being a part of benches.
Justice Isa expressed displeasure that this was, however, not being discussed by anyone from the petitioners’ side.
“The time has come for the country to move forward. The way courts are used, as they say, ‘misuse of due process’. Guns are being fired from our shoulders and martial laws have been endorsed,” the top judge said.
Institutions, Justice Isa continued, were not perfect but they should be developed and respected. “But anyone who talks about betterment, they are reprimanded,” he said.
“Keep a balanced approach, you are the Attorney General for Pakistan. At the moment, you are an officer of the court, not just representing the government’s approach, because there is no government in the sense that there is a caretaker government and a neutral set-up now,” the CJP told Awan.
The judge added that there was a difference between the government and Parliament.
During the hearing, the AGP revealed the details of judgments taken under Article 184(3) and their outcomes. He said Steel Mills had record losses of Rs206 billion since June 2022.
“Are you trying to say that all this happened because of SC’s action?” CJP Isa asked while Justice Naqvi stated a chargesheet should not be made against the apex court.
“Why are we so scared of listening to the truth?” the top judge said.
On the other hand, Justice Afridi asked what the AGP wanted from the chargesheet. “Do you want us to call the practice and procedure law constitutional through the doctrine of necessity?”
Here, the CJP once again questioned, “Why are we scared of criticism?”
Separately, Justice Akhtar reprimanded the AGP and said: “This is not a debate society neither are we sitting here to listen to your lectures.”
Meanwhile, the CJP said calling legislation by the Parliament a “chargesheet” would not be correct. He added that he spent most of his life as a lawyer and counsels, irrespective of whether the judges like it or not, continue their arguments.
After the AGP concluded his arguments, Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, and Supreme Court Bar Association (SCBA) President Abid S. Zuberi also completed their submissions.
Law limiting CJP’s powers
The previous government of PDM had enacted the Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the top judge. The legislation deprives the office of the CJP of powers to take suo motu notice in an individual capacity.
The law states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.
On April 13, an eight-judge SC bench headed by former CJP Bandial had suspended the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.
When the law was suspended, Justice Bandial had observed that the court had great respect for the Parliament but it also had to examine if any constitutional deviation, violation or transgression had taken place while enacting the legislation.
The petitioners in the case had pleaded before the apex court that the concept, preparation, endorsement and passing of the law was an act tainted with mala fide. Therefore, the bill should be struck down after declaring it to be without lawful authority and of no legal effect, they contended.
Moreover, they said the federal government could not frame any law that seeks to interfere or regulate the functioning of the apex court or the powers exercised by it or its judges including CJP, under the Constitution.
