SC gives up CJP’s powers

10-5 majority verdict throws out all challenges to procedure act; retrospective right of appeal provision struck down

ISLAMABAD:

Conceding to the supremacy of parliament in enacting laws, the Supreme Court on Wednesday dismissed by a majority of 10-5 all the nine challenges thrown at a law that required formation of the apex court benches by a committee of three senior judges.

The previous coalition government had enacted the Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the chief justice of Pakistan. The legislation deprives the office of the top judge of powers to take suo motu notice in an individual capacity.

"By a majority of 10 to 5 (Justice Ijazul 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 (‘the Act’) is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan and to this extent the petitions are dismissed,” read the short order.

Chief Justice of Pakistan Qazi Faez Isa pronounced the short order, which was reserved earlier by a 15-member full court bench after all respondents concluded their arguments.

Headed by Chief Justice Isa, the bench consisted of 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.

The short order further said, "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.”

The majority judges also decided against a provision of the law wherein the right to appeal was given retrospectively. This means that no appeal could be filed against the Panama case judgment.

"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.

The judgement is a big relief to former chief justices and their like-minded judges whose jurisprudence was under threat on account of extending the right of appeal to grievances from the past under the law.

Earlier, the top court had reserved its verdict after all respondent concluded their arguments in the case. The chief justice had created history by ordering live-streaming of the entire hearing by the full court bench consisting of all 15 judges inside the Courtroom No 1.

The hearing

At the outset of the hearing on Wednesday, Attorney General for Pakistan (AGP) Mansoor Usman Awan presented his submissions. He said that his arguments would be based on the government’s written response submitted in the court.

“You are saying you will not repeat the arguments but will highlight them,” the chief justice said. To that AGP Awan replied that he would talk about the independence of the judiciary and the 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 said that three questions were raised during the proceedings on the matter and he would respond to them.

He said that the Article 191 did not take away 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 the Supreme Court rules were conditional to the permission of the governor general or president. For his part, the AGP said that there were no restrictions on parliament from amending the rules under Article 191.

“Are you saying that there are no restrictions on parliament from amending the rules formulated by the Supreme Court,” Justice Ahsan asked. “So are there no restrictions on the Supreme Court amending laws created by parliament?”

Awan replied that parliament was the institution that created the laws. He further stated that if the number of pending cases in the apex court crossed 70,000 a need might 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, chief justice Isa said that the institutions should be “pitted against each other” and there should be mutual respect among them. “In my opinion, parliament respected the Supreme Court.

If it wanted, parliament could have taken another step which it did not. I believe that step was not taken because 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.