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ISLAMABAD: The Supreme Court by a majority of 10-5 sustained the Practice and Procedure Act, 2023, as being in accordance with the Constitution and dismissed the petitions filed against it.

Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A Malik, and Justice Shahid Waheed disagreed with the majority decision.

The bench by a majority of nine to six declared the sub-section (1) of section 5 of the Act (granting a right of appeal prospectively) to be in accordance with the Constitution and to this extent the petitions are dismissed. Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A Malik, and Justice Shahid Waheed dissented.

However, by a majority of eight to seven declared that sub-section (2) of Section 5 of the Act (granting a right of appeal retrospectively) to be ultra vires the Constitution. Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Aminud Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah, and Justice Musarrat Hilali dissented.

A 15-judges Full Court, headed by Chief Justice Qazi Faez Isa and comprising Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminud Din Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, and Justice Musarrat Hilali had been hearing the petitions against the Supreme Court (Practice and Procedure) Act, 2023, since September 18, 2023. The proceedings were shown live on Pakistan Television.

After this short order now as per Section 2 of the Act, every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a Bench constituted by the committee comprising Chief Justice Faez, Justice Tariq Masood, and Justice Ijazul Ahsan.

An eight-member bench of the SC, headed by ex-CJP Umar Ata Bandial on April 13 had barred the government from implementing the law until the petitions challenging it were decided.

It declared: “The moment the Bill, 2023 receives the assent of the President or it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner.”

During the hearing, Attorney General for Pakistan Mansoor Usman Awan argued in support of the constitutionality of the Act. He said that the Supreme Court and the Parliament are the creation of the constitution and the Parliament is the body that can frame laws.

Justice Mazahar Ali Akbar Naqvi said that the Supreme Court Rules were made in 1980 then why after almost 33 years the Parliament realised that a law should be passed the practice and procedure of the apex court.

He said if the pendency in the court will increase from 50,000 to 70,000 then would another law would be legislated.

Justice Yahya Afridi said the basic purpose of the Parliament was to frame this law as there is no appeal against the order/ judgment passed under Article 184(3), but it has changed the whole system through this law.

He said that the Supreme Court is an institution, — a Titanic but it was turned around at once, adding if it had done it slowly and gradually then the Supreme Court could also examine its Rules, but the Parliament said that even the civil application would also be decided by the Committee, proposed in the Act 2023.

The attorney general argued there have been instances when people in jail filed applications for early hearings, but when their cases were heard and decided when they were not in this world.

Justice Ijazul Ahsan questioned whether the provisions in the law are mandatory or directory? He said if the law is not implemented then would there be consequences.

Upon that, the chief justice said the consequences would be considered at the relevant time. He said in the Anti-Terrorism Act a timeline is given for deciding cases within 120 days. He said when the cases of ATA came before the apex court they did not throw them as the timeline was not met. He said the Supreme Court should trust the Parliament. Institutions should not be pitted against one another.

“In my opinion, the Parliament respected the SC; therefore, it did not talk about the consequences. The Parliament could have done it, which it did not. I believe that step was not taken because the Parliament trusts us,” he said. “Parliament is not our enemy; neither does it consider us enemies. Both can be run, simultaneously,” added.

“The world is moving forward while we are going backwards. There are a number of challenges that we are seeing, including climate change,” the chief justice further said and cited a maxim “live and let live”. “The world moves forward together, not antagonistically.”

Justice Munib said the Constitution has to be read on the premise that there have to be constitutional conventions. The attorney general responded that the Constitution never acknowledged the CJP as the “master of the roster”. CJP Faez then inquired from the AGP about the genesis of the term Master of Roster. Awan replied that the term came from the colonial British times.

The CJP then asked if such a term existed in Islamic history and criticised the dependence on “colonial masters”. Justice Munib said under the law, the committee is the Master of Roster as now it would do the same work that the CJP used to do. If you don’t want to give the power to one judge, why give it to three judges, he asked. If any CJP in the past has not given the power to the Full Court then you (the government) do it, he remarked.

Justice Ijaz said the foremost question before the bench was whether the Parliament was competent to legislate and the second one was that if the Parliament was competent, some provision of the law inconsistent with the Constitution could be struck down.

The CJP said that it was not right that the Parliament was restricted while the SC kept taking decisions, recalling that orders have been passed in the past where judges were restrained from being a part of benches. He said in the recent past the Court exercised power which was not its domain. It assumed the power as it knew that every day people come before it.

He said: “The time has come for the country to move forward. The way courts were used by the military dictators and one person was allowed to make changes in the constitution and to hold two positions, i.e., COAS and the President of Pakistan. “The Supreme Court’s shoulders were used to fire gunshots.”

The chief justice further said that the institutions were not perfect but they should be developed and respected. “But anyone who talks about betterment, they are reprimanded,” he added.

“Keep a balanced approach,” the CJP told the attorney general. At the moment, you are an officer of the court, and not just representing the government’s approach, because there is no government in the sense that there is a caretaker government and a neutral set-up now,” the CJP said.

The AGP, in order to establish why it was necessary to make this law, said in 2006, a judgment under Article 184(3) declared the privatisation of the Steel Mills null and void. He argued that since that time until June 30, 2022, the losses of Steel Mills are Rs206 billion.

The chief justice remarked are you trying to say that all this happened because of the SC’s action taken under Article 184(3). However, Justice Naqvi stated a charge sheet should not be made against the apex court. CJP Faez said: “Why are we so scared of listening to the historical truth?”

On the other hand, Justice Afridi asked what the AGP wanted from the charge sheet. “Do you want us to call the practice and procedure law constitutional through the doctrine of necessity?” Here, the CJP once again questioned, “Why are we scared of criticism?”

Justice Munib, reprimanding the AGP, said: “This is not a debating society neither are we sitting here to listen to your lectures.”

The CJP said calling legislation by the Parliament a “charge sheet” would not be correct. He added that he spent most of his life as a lawyer, and counsels irrespective of whether the judges like it or not, continue their arguments.

Justice Tariq Masood, in response to one of the petitioners’ counsel Chaudhary Ikram that the chief justice should have to power to decide about benches and fixation of case, said when a chief justice using his power to constitute a bench of his choice, empowered a dictator to make changes in the constitution then why the lawyers protested on the roads. He questioned why they (the lawyers) were now promoting a dictatorship, adding; “This (law) is our future.”

After the AGP concluded his arguments, lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, and Supreme Court Bar Association (SCBA) President Abid S Zuberi also completed their submissions, the bench reserved the judgment, which at 5:30pm announced its short order.

Copyright Business Recorder, 2023


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Parvez Oct 12, 2023 02:08pm
Is such matters it has been proven that ...... the devil is in the detail.
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