Constitutionality of SC Act be decided first, at the earliest: Justice Mansoor

ISLAMABAD: Justice Mansoor Ali Shah demanded that the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023, be decided first at the earliest so that the apex court can function in accordance with the law rather than under the uncertainty of a stay order.

An eight-member bench of the Supreme Court, on April 13, 2023, had suspended the operation of the Procedure Act.

A three-member bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan and Justice Syed Mansoor Ali Shah, on Friday, released its order of August 29 regarding the hearing of the NAB law amendment case. Justice Mansoor wrote a separate note.

The court order said the Procedure Act has brought about two fundamental changes in the practice and jurisdiction of the Court: first, it has created a committee comprising the chief justice and the two next most senior judges of the court for fixing “every cause, appeal or matter” before a Bench constituted by it (refer Section 2 of the Procedure Act). The effect of this provision is that administrative powers vested in the chief justice under the Supreme Court Rules, 1980, stand transferred to the committee.

Second, the Procedure Act has provided a right of appeal against the judgments/ orders of the Court passed under Article 184(3) of the Constitution (refer Section 5 of the Procedure Act).

The vires of the Procedure Act were challenged in Constitution Petition Nos.6-8/2023, etc., Vide order dated 13.04.2023, as affirmed by the order dated 02.05.2023, an eight-member Bench of the Court suspended the operation of the Procedure Act.

The court order said 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 13.04.2023 and 02.05.2023 passed by the eight-member Bench. 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.

Justice Mansoor noted that the interim order of the eight-member bench suspending the Act was passed on 13th April 2023, more than four months ago, and there is 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.

Justice Mansoor noted 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. 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 decision of the Court, if ultimately the Court upholds the constitutional validity of the Act. In case the Act is held to be valid, any decision given in the present case 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.

Needless to underline that under Sections 3 and 4 of the Act, a due process is provided to deal with matters invoking exercise of original jurisdiction of this Court under Article 184(3) of the Constitution and matters involving the interpretation of any constitutional provision. Section 3 read with Section 4 of the Act mandates hearing of a matter involving interpretation of any constitutional provision, which includes provisions containing fundamental rights, by at least a five-member bench. Further, on the constitution of a three-member administrative Committee envisaged under the Act, a policy would have to be framed to deal with all the pending cases including the present one, where-under the present composition of this Bench might not remain the same.

Copyright Business Recorder, 2023