The Supreme Court (SC) noted on Wednesday that the Supreme Court (Practice & Procedure Act), 2023, which was legislated by the previous coalition government, strengthened the judiciary and created greater independence.
In its detailed judgment, authored by Chief Justice of Pakistan Qazi Faez Isa and endorsed by nine other judges, on the legal challenge to the law, the court stated that neither did the act violate the Constitution, nor undermine the apex court, or compromise the independence of the judiciary.
“In effect it does the very opposite in ensuring the enforcement of Fundamental Rights, strengthening the Judiciary and creating greater independence therein,” the judgment. “The office of the Chief Justice has also been strengthened,” it added.
The Practice & Procedure Act was passed by parliament in April this year. It stipulated a three-member committee, comprising the chief justice and the two senior-most judges of the apex court, which will decide whether or not to take up a matter suo motu besides on the formation of the benches.
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As the law still awaited president’s assent, the Supreme Court, then led by former chief justice Umar Ata Bandial, stopped its enacted, until the petitions challenging it were decided. The matter was taken up after Qazi Faez Isa became the chief justice.
On October 11, the Supreme Court, while in full court session declared the act as valid through a 10-5 majority. The detailed judgment of the case was authored by the chief justice, which had been released on Wednesday.
The judgment said that the Constitution empowered parliament to legislate about the practice and procedure of the Supreme Court as it specifically stipulated in the Article 191 of the Constitution.
It added that the act did not infringe upon the fundamental rights but facilitate their enforcement. “The Act also grants an appeal to one who is aggrieved by a decision of the Supreme Court which is passed in exercise of the original jurisdiction of the Supreme Court under Article 184(3) [suo motu] … a standard good worldwide practice…” the judgment added.
“We have very carefully considered each and every provision of the Act, and are of the view that it has facilitated access to justice, instilled transparency, made the realization of Fundamental Rights more effective and the Supreme Court more independent,” the judgment continued.
“The office of the Chief Justice has also been strengthened as there is an element of continuity when consultation takes place with the two most senior Judges. The measures taken in the Act ensure judicial independence… we endorse the following definition of judicial independence.”
The judgment noted that the Constitution did not grant to the chief Justice power to decide cases unilaterally and arbitrarily, stressing that the chief justice could not substitute his wisdom with that of the Constitution, nor could his opinion prevail over that of the judges of the Supreme Court.
The chief justice also noted in the judgment that the term ‘Master of the Roster’ was neither mentioned in the Constitution, nor in any law or even in the rules, adding that the word master was offensive in a constitutional dispensation founded on democracy.
“Master also connotes servitude, the extreme form of which is slavery which is prohibited by the Constitution. Islam establishes the principle of equality, and the Constitution does not permit transgressing the Injunctions of Islam, the State religion of Pakistan,” he said.
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“The only servitude the Constitution (and Islam) envisages is to the Creator,” said the judgment. “Servitude also negates consultation. The Holy Qur’an mandates, ‘Do that which is in agreement amongst the people’,” the judgment added.
It said that Qur’anic exegetes were unanimous in the interpretation of this verse that consultation was obligatory in respect of all matters pertaining to more than one person. “History stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow.”
“Irreparable damage is caused to the Judiciary and to the people of Pakistan when the legitimacy, integrity and credibility of the Judiciary is undermined. If the people lose their trust in the Judiciary, it will render decisions made by it mere words on paper, without credibility and moral authority.
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The surest way for this to happen is when cases are not decided in accordance with the Constitution.”Additional noteSimultaneously, the additional note in the judgment, authored by Justice Yahya Afridi, has also been released. In his note, Justice Afridi underscored the importance of transparency in the formation of the benches at a time when the political environment was highly charged.
He acknowledged that the changes brought about by the Practice and Procedure Act were good, but opposed the grant of appeal against the decisions under Article 184(3). He said that such a right could be granted through a constitutional amendment and not by a simple legislation.
According to the addition note, granting the right of appeal was “undoubtedly a positive step” but if parliament wanted to grant this right, it should adopt the path of constitutional amendment. With a simple legislation in the Practice and Procedure Act, parliament exceeded its jurisdiction, it added.
(WITH INPUT FROM JEHANZEB ABBASI)
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