Islamabad
The Supreme Court, in a full court session on Wednesday, ruled that the SC (Practice & Procedure) Act, 2023 — which requires a committee of senior judges to form benches for constitutional matters and suo motu notices — was “sustained as being constitutional” and rejected petitions against the law in a majority verdict.
Reading the reserved verdict, Chief Justice of Pakistan (CJP) Qazi Faez Isa said that “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”.
“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,” he ruled.
Sub-section 1 of Section 5 of the Act says: “An appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days”.
“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.
Sub-section (2) of Section 5 of the practice and procedure law says: “The right of appeal under sub-section (1) shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act.”
The SC (Practice & Procedure) Act, 2023, which was passed by Parliament in April, states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of the Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.
The law was seen by the petitioners as an attempt by the government to curtail the chief justice’s powers.
In April, the Supreme Court, then led by former chief justice Umar Ata Bandial, barred the government from implementing the law until the petitions challenging it were decided. The decision was taken by an eight-member bench consisting ex-CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Sayyed Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha, Justice Syed Hasan Azhar Rizvi and Justice Waheed.
A day after he was sworn in, on September 19, incumbent CJP Qazi Faez Isa resumed hearing the petitions with a full court and ordered live-streaming of the entire proceedings.
Today’s judgment comes after five proceedings were conducted on the matter. At the previous hearing, an exchange between judges and counsel hinted at the disquiet among judges over the court’s workings.
