Islamabad (Web Desk): The Supreme Court (SC) on Wednesday dismissed the petitions challenging the Supreme Court (Practice and Procedure) Act 2023 by a majority decision of 10-5.
Reading out the reserved order, CJP Isa said that majority of the declared that the Supreme Court Procedure and Practice Act 2023 is sustained as being in accordance with the Constitution and to this extent the petitions are dismissed.
Five members of the full court bench including Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Sayyed Mazahir Ali Akbar Naqvi, Justice Ayesha A Malik and Justice Shahid Waheed opposed the law.
"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," the CJP 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 SC full court bench headed by Chief Justice of Pakistan (CJP) Qazi Faiz Isa, and including Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali heard the petitions.
Earlier the top court reserved the verdict and the CJP said that the judges would hold discussions on the matter and if there consensus or clarity was reached, the verdict would be announced. “Otherwise the verdict would stay reserved, he said.
The hearing was streamed on live TV transmission, in accordance with SC previous directives.
The full court bench concluded the hearing of the case after Attorney General of Pakistan (AGP) completed his arguments.
All the petitioners, including the political parties, have completed their arguments. Except for the Pakistan Tehreek-e-Insaf (PTI), all political parties have rallied support for the act.
The Supreme Court Bar Association (SCBA) has opposed the act, while the Pakistan Bar Association (PBA) has extended its support.
During today's hearing, the Attorney General of Pakistan (AGP) Mansoor Usman Awan presented 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".
"There were no restrictions on the Parliament amending rules under Article 191," the AGP argued.
Upon this Justice Ahsan asked whether there were any restrictions on the apex court amending laws created by the Parliament.
Responding to this, the AGP stated 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, Mansoor Awan 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.
In his remarks 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.
Justice Isa remarked that institutions were not perfect and they should be developed. He called for mutual respect among them.
The CJP was of the view that it was not acceptable for the Parliament to be restricted and the apex court to keep making decisions.
He 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.
During Tuesday's hearing, the CJP asked his fellow judges to allow lawyers to complete their arguments before questioning them after the counsels were repeatedly interrupted by the judges.
Muttahida Qaumi Movement-Pakistan's (MQM-P) lawyer Faisal Siddiqui completed his arguments during yesterday's hearing.
During the hearing on Monday, CJP Faez Isa observed that Parliament must not be hampered from doing something good merely because it lacks two-thirds majority.
In the previous hearing, the CJP questioned the many legal challenges to parliament’s legislative authority, noting that there had been much criticism of laws enacted by assemblies, but in the face of martial laws imposed in the country, there was always a complete surrender.
Justice Faez Isa had intended to wrap up the case the same day, but it was adjourned till Tuesday due to time constraints.
Supreme Court (Practice and Procedure) Act 2023, which was passed by parliament in April, had been seen by the petitioners as an attempt by the government to curtail the chief justice's powers.
In April, the SC, led by the then CJP Umar Ata Bandial, barred the government from implementing the bill seeking to curtail the chief justice of Pakistan's powers once it became a law.
It is pertinent to mention that under the Practice and Procedure Act 2023, the committee of three senior judges has been given the authority to form benches for constitutional matters of public importance and suo motu notices.
