Justice Shah calls for deferment of 184(3) cases until decision on SC procedure act

• SC Act seeks to curtail the powers of the country’s top judge.
• At least 5 judge-bench hear cases involving constitutional provision: Justice Mansoor.
• Says act applies to pending cases under Article 184(3) of Constitution.

ISLAMABAD: Top court Judge Mansoor Ali Shah urged Chief Justice of Pakistan (CJP) Umar Ata Bandial to put off hearing on all cases falling under Article 184(3) until a final verdict is issued on the Supreme Court Practice and Procedure Act, 2023. 

The law passed by parliament earlier this year aims to curtail the powers of the country’s top judge.

He said this in a two-page note issued following the hearing of the petition challenging the amendments to the National Accountability Bureau (NAB) law.

“Even though we have been hearing this case since 19 July 2022 but after the 46th hearing of the case held on 16 March 2023, the Parliament enacted the Supreme Court (Practice and Procedure) Act 2023 (“Act”) on 21 April 20231 which, inter alia, requires under Section 3 that the Bench for hearing petitions under Article 184(3) of the Constitution is to be constituted by a Committee comprising of the Chief Justice of Pakistan and two next most senior Judges of the Court,” the judge said in the note.

Justice Shah said section 4 provides that any case involving the interpretation of constitutional provision is to be heard by a bench comprising at least five judges.

The next hearing in this case after the promulgation of the Act was scheduled to be held on May 16, the judge added.

“Before the said hearing, I apprised the Hon’ble Chief Justice of Pakistan of my reservations to continue with hearing the case by the present Bench (as expressed in this note). The case was therefore simply adjourned on that date.”

Justice Shah said as per his understanding the present case would be taken up for further hearing only after the constitutionality of the procedure act is finally decided by the apex court.

However, this case has been fixed for hearing today (Saturday), and there is no date of hearing fixed in the other case that will determine the constitutionality of the Act, the judge said.

Justice Shah said the practice and procedure act being a procedural law also applies to pending cases under Article 184(3) of the Constitution, including the present one.

“I am aware that the operation of the Act has been suspended by an eight-member Bench of this Court. It is, however, clear that the suspension order of the eight-member Bench is an interim measure. If ultimately the Court upholds the constitutional validity of the Act, which is an equally possible outcome with that of the possible decision of its constitutional invalidity, the Act would take effect from the date of its enforcement, not from the date of decision of the Court.”

In case the act is held to be valid, the decision of this bench, which is not constituted as per the procedure prescribed and strength of judges required under the act, in the present matter, may arguably be “coram non judice and thus a nullity in the eye of law”.

The judge further said: “In order to avoid such an anomaly, I was of the view that the cases under Article 184(3) of the Constitution should not be heard till the 1 which was suspended by this Court on 13.04.2023 when it was still a Bill.”

“[…] or if some urgency requires that a case under Article 184(3) of the Constitution must be heard, it would be prudent and appropriate if it is heard by a Full Court Bench,” the judge opined. 

“I, therefore, made a request today to the Hon’ble Chief Justice of Pakistan on the Bench to constitute a Full Court Bench, for hearing the present case, which I hope his lordship would consider earnestly.”