Full court upholds SC (Practice and Procedure) Act with 10-5 majority
Pakistan
Justice Ijazul Ahsan, Justice Muneeb, Justice Mazahir , Justice Ayesha, Justice Shahid oppose law
ISLAMABAD (Dunya News) – The Supreme Court on Wednesday turned down the pleas against the Supreme Court (Practice and Procedure) Act 2023 with 10-5 majority.
The verdict was announced by Chief Justice of Pakistan Qazi Faez Isa. The apex court hearing was streamed live on the state TV.
Reading the verdict, CJP Isa said, “a majority of 10-5 (Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting), the SC Practice and Procedure Act 2023 is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan and to this extent, the petitions are dismissed”.
The chief justice further said, “By majority of 9-6 (Justice Ahsan, Justice Akhtar, Justice Afridi, Justice Naqvi, Justice Ayesha and Justice 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.”
“By a majority of 8-7 (CJP 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 verdict added.
SC full bench headed by CJP Isa reserved the verdict earlier today on the pleas challenging the law after conducting a total of five hearings since Sept 18.
The chief justice-led full bench comprises 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.
Earlier, advancing arguments, Attorney General for Pakistan Mansoor Usman Awan said since inception of the constitution, no amendment had been made in Article 191 which ensures freedom of the judiciary.
He said the authority to make legislation for law pertaining to high treason and right to information act was derived from different clauses of the constitution. While enacting these laws, parliament did not depend on the Federal Legislative List only. He said right to privacy had been regulated through a law.
The attorney general said parliament had derived its authority to legislate from Article 191. Awan said no article of the constitution could withdraw legislation right from parliament.
Judges at variance
Earlier, during proceedings on Tuesday, Chief Justice of Pakistan (CJP) Qazi Faez Isa had barred Justice Ijazul Ahsan and Justice Muneeb Akhtar from questioning lawyers during hearing on pleas against the Supreme Court (Practice and Procedure) Act 2023. He told them to hold their queries.
Justice Ahsan remarked that an attempt was made to interfere in the independence of the apex court by enacting the law.
At the outset of proceedings on Tuesday, MQM counsel Faisal Siddiqui argued that the Act could be amended by a simple majority. He contended that he would cite two judgements in his defence as they are relevant in this case.
Justice Aysha Malik questioned him what the word “law” means in the Article 191. Does it authorise parliament to enact law?
Advocate Siddiqui replied to Justice Malik that the Supreme Court rules define what is law. There was no ambiguity in the minds of framers of rules about the meaning of world “law”.
The counsel favoured the act and requested the court to dismiss pleas against the law on merit. Justice Ahsan intervened and told Advocate Siddiqui that he wanted to ask a question. The CJP asked him to continue his argument and do not reply to question.
Later, the CJP stopped Justice Akhtar from asking questions. Justice Akhtar said he was a judge and it was his right to ask questions. The CJP told Advocate Siddiqui to continue as the court was hearing the case for four days and could not conclude the proceedings.
The CJP told Justice Akhtar to let the counsel complete his arguments and ask the question later. He remarked that if one has made up his mind, he could express his judgement in the final decision.
Justice Akhtar reacted to it and said he just wanted answer to his question.
Justice Akhtar protested that he was barred from asking a question. He asked the CJP to explain the word “law” in the Article 191.
CJP Isa told him that he could ask questions but first let the lawyer finish.
Justice Ahsan intervened and questioned whether the act was not an interference in the working of Supreme Court? Advocate Siddiqui argued that “subject to” and “law” can be read separately.
Justice Ahsan asked another question; judiciary, executive and legislature are independent entities? Isn’t it interference in the internal working and independence of judiciary?
Advocate Siddiqui said the Act should not be considered interference in the affairs of Supreme Court. "Parliament cannot legislate any law that would bar Supreme Court from making rules."
Justice Ahsan remarked that parliament transgressed constitutional restrictions by enacting the Act.
Advocate Siddiqui submitted that he would argue how parliament did not violate the constitution. Parliament has the authority to supervise the working of Supreme Court.
Justice Ahsan said does that mean parliament can control the apex court. Advocate Siddiqui replied that parliament’s authority is of supervisory nature.
Justice Akhtar asked him do “legislative entries” give parliament supervisory authority.
Justice Shah remarked that parliament had the authority to legislate by reading Article 191 with legislative entry 58. What is the meaning of word “practice” in Supreme Court procedures?
Monday's proceedings
On Monday, CJP Isa had observed that parliament passed the law with "good intentions".
As the hearing started, Supreme Court Bar Association President Abid Zuberi said parliament was not authrorised to make rules regarding the practice and procedure act. He said by doing so parliament misused its powers.
He said the term 'subject to law' in the constitution did not mean parliament was authorised to enact laws about judiciary. Zuberi said only the Supreme Court could make laws about the judiciary keeping itself withon the parameters of existing laws.
The CJP then asked the SCBA president, "If words 'subject to law' are removed from the constitution, will these make any impact?". Zuberi said removal of these words would not make any difference.
The CJP expressed his annoyance over submitting fresh documents in the case. He said such documents should have been submitted earlier. Justice Isa said he did not expect such an attitutde from a senior lawyer.
Justice Ijazul Ahsan remarked that the Supreme Court had the authority to make rules about itself and this was given by the constitution.
Justice Muneeb Akhtar said constitution makes it binding to make rules according to law and constitution, and that meant the rules would be made as per prevailing laws.
The CJP said the Supreme Court was busy hearing practice and procedure law petitions and the other cases were pending, and this was adding to the backlog of cases.
He said they had to wind up the arguments and decide the case today. He asked the SCBA president to finish his arguments by 11am. He then asked Zuberi, “Did you submit your written arguments in the case?”
The SCBA president said he had just submitted his arguments in court. Zuberi said he wanted the apex court to have a look on a decision given by New Jersey court of the US.
Upon that the CJP remarked that he should not downgrade the apex court to such a level. Justice Isa said Zuberi should have referred to any decision as a precedent by the Supreme Court of the US but he was showing them a ruling of a New Jersey court. He said even it was not a ruling too.
CJP Isa said, “Parliament is usually asked to complete the number game but when a single person assumes power and makes amendment, it is considered as right. If parliament wants to make something good, why do you want to crush it?”
Justice Athar Minallah asked Zuberi to advance arguments on expanding jurisdiction of the Supreme Court. Justice Minallah said he was of the view that the provincial assemblies were not empowered to make such rules.
The CJP then asked the SCBA president to wind up the discussion and complete arguments.
Justice Minallah said, “If someone files review petition under Article 188, he cannot avail facility of appeal. The act does not grant right of appeal against review.”
The CJP asked Zuberi if apex court had to face all the burden why the SCBA president was getting tense. He then told Zuberi he had finished arguments and now court was going to hear other party.
During the earlier hearing, CJP Justice Qazi Faez Isa had questioned how the Supreme Court (Practice and Procedure) Act 2023 could curtail the powers of the apex court. CJP Isa regretted how vesting of authority in an individual’s hands had destroyed the country.
At one point, Justice Akhtar feared parliament’s involvement in bench-making and that, he said, would undermine separation of powers.
