Justice Shah calls for avoiding legal anomaly

Supreme Court judge Syed Mansoor Ali Shah has suggested that the apex court should either form full courts or stop hearing all cases under Article 184(3) until it makes a decision on the Supreme Court (Practice and Procedure) Act, 2023, a law that an eight-member SC bench suspended on April 13.

In a two-page note issued on Friday, Justice Shah expressed fear that if different SC benches continued to hear cases under Article 184(3) of the Constitution without the SC first deciding the fate of the Supreme Court (Practice and Procedure) Act, 2023, an anomaly might arise.

Justice Shah was part of a three-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial that on Friday resumed hearing the PTI’s petition filed against the National Accountability (Second Amendment) Act 2022 in July 2022.

The judge noted that while the three-member bench had been hearing the case since July 19, 2022, the parliament on April 21, 2023 enacted the Supreme Court (Practice and Procedure) Act, 2023.

“[This law] requires under Section 3 that the bench for hearing petitions under Article 184(3)…is to be constituted by a committee comprising the CJP and two next most senior [SC] judges.

“Section 4 provides that any case involving the interpretation of constitutional provision is to be heard by a bench comprising at least five judges,” Justice Shah said in reference to the act whose fate hangs in balance.

The judge said the act being a procedural law also applies to pending cases under Article 184(3) of the Constitution, including the case related to controversial amendments to the law governing the country’s top graft buster, the National Accountability Bureau (NAB).

 “I am aware that the operation of the act has been suspended by an eight-member bench of this court. It is, however, clear that the suspension order of the eight-member bench is an interim measure.

“If ultimately the court upholds the constitutional validity of the act, which is an equally possible outcome with that of the possible decision of its constitutional invalidity, the act would take effect from the date of its enforcement, not from the date of decision of the court.

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“In case the act is held to be valid, the decision of this [three-member] bench, which is not constituted as per the procedure prescribed and strength of judges required under the act, in the present matter, may arguably be coram non judice and thus a nullity in the eye of law,” he said.

He said in order to avoid such an anomaly he was of the view that the cases under Article 184(3) should not be heard till the case dealing with the constitutional validity of the act is decided.

“Or if some urgency requires that a case under Article 184(3) of the Constitution must be heard, it would be prudent and appropriate if it is heard by a full court bench,” he said.

Justice Shah said after promulgation of the act, the next hearing in the case related to NAB amendments was scheduled for May 16 but before the hearing, he communicated to the CJP his reservations to continue with hearing the case by the present bench.

“The case was, therefore, simply adjourned on that date. My understanding was that the present case would be taken up for further hearing only after the constitutionality of the act is finally decided.

“However, this case has been fixed [listed] for hearing today [August 18], and there is no date of hearing fixed in the other case that will determine the constitutionality of the act.”

Justice Shah said when a larger bench took up petitions against court martial of May 9 rioters on June 22, he also suggested that until the court decided constitutionality of the Supreme Court (Practice and Procedure) Act 2023, all such matters under this jurisdiction must be heard by a full court bench.

“I, therefore, made a request today to the Hon’ble CJP on the bench to constitute a full court bench, for hearing the present case, which I hope his lordship would consider earnestly,” he said.

The judge said he also considered it appropriate to give an opportunity to the parties of this case to assist the court on the question whether this bench should continue hearing this case or should this case be adjourned till the court first decides the constitutionality of the law that seeks to regulate CJ’s powers.

“Learned counsels for the parties are to come prepared on the next date to address the court on this question,” he stated.