Uncertainty surrounds cases heard under Article 184

Judge questions their fate if Supreme Court (Practice and Procedure) Act upheld

ISLAMABAD:

Uncertainty looms over the fate of public interest cases decided under Article 184(3) of the Constitution following the suspension of the effects of the Supreme Court (Practice and Procedure) Act, 2023, as apprehensions abound that high-profile cases, previously considered settled, may face challenges on their validity.

Justice Qazi Faez Isa, who is set to become the next chief justice of Pakistan, and now Justice Syed Mansoor Ali Shah, have expressed concerns that if the law's constitutionality is upheld, all proceedings under Article 184-3 would be legally void.Since the enactment of this law, Justice Isa is not sitting on any bench.

He is consistently raising questions on the legality of the benches which have been constituted since April.

Legal experts warn that if the Supreme Court upholds the Act, high-profile cases decided since April 13 could face challenges on their validity.However, one of the lawyers believed that the court would need to protect these cases as "past and closed" and provide a provision for appeals against them.

He said that the court would also have to afford appeals against those cases decided under Article 184-3 of the Constitution during this period.Justice Shah, while hearing PTI chief Imran Khan's petition against the National Accountability Bureau (NAB) law amendments, noted that Section 3 of the Act provided that the bench for hearing pleas under Article 184-3 was to be constituted by a committee comprising the chief justice of Pakistan and two next most senior judges of the SC.

He further pointed out in his separate note attached to the bench’s written order that Section 4 of the Act mandated that any case involving the interpretation of a constitutional provision was to be heard by a bench comprising at least five judges."

The Act being a procedural law prima facie applies retrospectively to the pending cases under Article 184-3 of the Constitution, including the present one,” Justice Shah’s note read.

“Although the operation of the Act has been suspended by an eight-member bench of this court, the Act would take effect from the date of its enforcement, not from the date of the decision of the court, if ultimately the court upholds the constitutional validity of the Act,” it added.

“In case the Act is held to be valid, any decision given in the present case [NAB amendments] by this bench, which is not constituted as per the procedure prescribed and of the strength of judges required under the Act, would arguably be coram non-judice and thus a nullity in the eye of law.”

Justice Shah noted that responding to the observation that the Act being a procedural law also applied to pending cases under Article 184-3, including the present one, the counsel for the petitioner while relying on several cases contended that “even a procedural statute was not to be given a retrospective effect” if it would cause inconvenience or injustice."

I am afraid, it is not for this bench to decide whether the Act if ultimately held constitutionally valid should not be given retrospective effect to avoid any inconvenience or injustice but rather it is for the eight-member bench hearing the case regarding the constitutionality of the Act to decide upon this question,” he continued.

"Similarly, the contention of the learned counsel for the Federation that in view of the well-settled opinion of this court as expressed in several cases the operation of the Act could not have been suspended is not for this bench to deal with.”

Justice Shah observed that this bench could not entertain the contention as a court of appeal to the one that had suspended the operation of the Act.

"With great respect, I also do not subscribe to the discussion made in this case by my learned brothers in their order of today, explaining the reasons for suspending the operation of the Act in another case, what the learned Attorney-General for Pakistan argued in that case and whether or not the federal government made any request for recalling the stay order in that case,” the judge added.

"While sitting in this bench hearing the present case, we cannot, in my humble view, explain or defend the orders made or proceedings conducted by another bench in some other case.”

Justice Shah noted that no satisfactory answer had been put forth by the counsel for the petitioner to the proposition that if ultimately the court upheld the constitutional validity of the Act, any decision given in the present case by this bench might be legally void.

“The order of my learned brothers, I submit most respectfully, does not address this concern either, even though they note in their order that ‘[it] would clearly be presumptuous of us to assume the outcome on the above issue’.

The decision of constitutional validity of the Act is an equally possible decision with that of its constitutional invalidity; it is not a presumption or speculation. No one can be sure of either of the decisions before the pronouncement of the same by the bench concerned.

Further, it is not a matter of compliance or non-compliance of the interim order passed by the eight-member bench, which is only of a temporary nature, the real concern is the effect of the possible final outcome of the constitutional validity of the Act on the present proceedings and any decision given therein,” he pointed out.

The judge noted that there was a possibility that the instant proceedings and the decision given therein might become coram non-judice and a nullity in the eye of law, if the constitutionality of Sections 3 and 4 of the Act was upheld by the other bench."

So this Damocles’ sword hanging over these proceedings can easily be removed if either we await the decision of the eight-member bench on the constitutionality of the Act or make it ineffective by placing the matter before a full court bench," Justice Shah proposed.

The judge noted that the interim order of the eight-member bench suspending the Act was passed on April 13, 2023, more than four months ago and there was no next date of hearing fixed in the case."

This unnecessary delay in adjudicating a matter which directly deals with the core functioning of this court is not understandable. Considering that almost 50 hearings have been held in the instant case, it therefore doubly requires that the constitutionality of the Act be decided first at the earliest so that the court can function in accordance with the law rather than under the uncertainty of a stay order,” he continued.

"I, therefore, maintain my earlier view recorded in my note of 22 June 2023 in Const. Petitions No.24-26 of 2023 (Trial of Civilians in Military Courts case) and answer the question in the terms that in order to avoid such an anomaly, the hearing of the present case should either be adjourned till the court first decides the constitutionality of the Act or in the alternate a full court bench should be constituted to hear the instant case,” Justice Shah concluded.

The two other judges on the bench, CJP Umar Ata Bandial and Justice Ijazul Ahsan, in their majority opinion, observed that they were not inclined to comment on a procedure Act’s vires, which was a matter for an eight-member bench to decide.

"It would clearly be presumptuous of us to assume the outcome on the above issue. However, it should not be ignored that the Procedure Act has been suspended by the orders of 03.04.2023 and 02.05.2023 passed by the eight-member bench,” the majority order in the NAB law amendments case read.

"The federal government thereafter in the hearing has neither requested for the recall of these orders nor for their modification. Consequently, so long as these interim orders are in the field, we are of the considered view that the same must be complied [with]. The titled constitution petition has already undergone nearly 50 hearings. Its proceedings have reached the final stage and are near conclusion. The said petition should therefore continue to be heard and decided by the present bench. Any change in the composition of the bench is neither necessary as a matter of law or of propriety nor is it advisable at this end stage of the case,” it added.

The two judges were of the view that concluding the case would serve the public interest as much time of the court and public money had been expended in hearing the instant petition.