Bill limiting CJP powers ‘sustained’ with 10-5 majority; section dealing with retrospective effect of law struck down

• CJP Isa notes five members of the bench opposed the law.
• Section for right of appeal declared in line with Constitution.
• Verdict acknowledges parliament's right to legislate under Article 191.

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ISLAMABAD: In a major development, the Supreme Court Wednesday “sustained” the Supreme Court (Practice and Procedure) Act 2023 — which deals with the chief justice's powers — as “constitutional” with a 10-5 majority.

The full court, comprising all 15 judges of the apex court, had reserved the verdict earlier today on the pleas challenging the law after conducting five marathon hearings.

While reading out the order, CJP Isa noted that five members of the bench — Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Sayyed Mazahir Ali Akbar Naqvi, and Justice Ayesha A Malik, and Justice Shahid Waheed — had opposed the law.

The CJP mentioned that 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.

By a majority of 9-6 (Justice Ahsan, Justice Akhtar, Justice Yahya Afridi, Justice Naqvi, Justice Malik, 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.

The verdict acknowledges the parliament's right to legislation under Article 191, which states that the SC rules are subject to the Constitution. 

The law will be effective from April 21, 2023, the day it was enacted, which means the SC verdicts under 184(3) which came after this date can be appealed for review.

One of the major verdicts is in the NAB amendments case, in which Justice Mansoor Ali Shah wrote in the verdict that a full court should be constituted after the decision on the Practice and Procedure Act, or else doubts will be created regarding this court’s verdict.

What is the law?

The law gives the power of taking sou motu notice to a three-member committee comprising senior judges including the chief justice. It further aimed to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the Act stated that every cause, matter, or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges.

It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court's original jurisdiction, the Act said that any matter invoking the use of Article 184(3) would first be placed before the committee.

On matters where the interpretation of the Constitution is required, the Act said the committee would compose a bench comprising no less than five apex court judges.

About appeals for any verdict by an apex court bench that exercised Article 184(3)‘s jurisdiction, the Act said that the appeal would lie within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

The Act additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal, or matter, shall be fixed for hearing within 14 days from the date of its filing.

However, the law had the provision that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Act, but the court has struck it down.

'Live and let live'

Before concluding the hearing earlier today, the CJP had urged that parliament and Supreme Court should not be pitted against each other, saying that the legislative body is not the enemy of the people and both institutions should "live and let live".

Neither the Parliament nor the Supreme Court consider each other enemies, the chief justice said.

"Do not pit the Parliament and Supreme Court against each other," he remarked, insisting on the idea of "live and let live".

"Why do we see each other's institutions negatively? Why can't it be said that one institution legislated for the betterment of another?" CJP Isa questioned.

He maintained that cases, in the long run, will be affected if the full court writes everything about the future in the judgment. "Let go of the future and look at what's in front of you."

'Independence of the judiciary'

Before the attorney general began his arguments, the chief justice jokingly said: "You are last but not the least."

Responding to the CJP, Awan said: "I have given arguments for the case to be heard."

The AGP said he will respond to the three questions raised during the course of the hearing.

“I will talk about Article 191 and the independence of the judiciary,” he said.

The AGP said he will argue about the Parliament being the master of the roster, the right to appeal and the question of appeal against the decision of a full court.

“The fundamental rights enshrined in Articles 14, 20, 22 and 28 are exercised in accordance with the law,” Awan said, addressing judges of the apex court.

He added that the right to privacy is regulated by law and also spoke about Article 191 empowering Parliament to legislate.

“Are you saying that the word law in Article 191 is different from the use of this word in other constitutional provisions?” the chief justice asked the AGP.

The authority to legislate on the High Treason (Punishment) Act and the Right to Information Act was derived from constitutional provisions, the AGP said.

He mentioned that the Parliament, in these laws, did not rely on the Federal Legislative List.

“Since the Constitution was enacted, no amendments have been made to Article 191,” he said, emphasising that not amending the aforementioned article ensures the judiciary’s independence.

Justice Akhtar remarked that the approval of rules was in the hands of the president or governor-general according to the Constitution of 1956.

“According to you, the Parliament is allowed to amend the rules. If your argument is to be accepted, then why did the Parliament not approve the SC rules before this?” the apex court judge asked Awan.

“Exercising the power does not mean that the power of the Parliament has lapsed,” AGP replied.

He added that the Parliament not amending Article 191 does not mean it is surrendering its authority. “Article 191 contains the word law under which the Practice and Procedure Law is made.”

Justice Ahsan remarked that the SC law has impacted the independence of the judiciary.

“The word law is used 200 times in the Constitution, will it have the same meaning?” he said, questioning Awan.

Responding to the judge, the AGP said that laws are either made by the Parliament or by judges.

Justice Akhtar remarked that there cannot be any legislation that takes away fundamental rights as per Article 8.

The AGP, however, said that the Parliament has the power to legislate under Article 191.

“Parliament cannot legislate against independence of judiciary,” he said.

“The real question is the independence of the judiciary,” Justice Ahsan asked.

Justice Mandokhail asked whether the act is weakening or increasing the independence of the judiciary.

“I will answer these questions based on the principle of separation of powers and the independence of the judiciary,” the AGP replied, maintaining that the law is not against the independence of the judiciary.

“Mr. Attorney General, these words are not only law, but subject to law,” Justice Minallah said.

Article 191 is different and the rest of the articles you are referring to are different, remarked Justice Akhtar. “The articles you have referred to are fundamental rights.”

The AGP, in response, said that the demand not to exercise the power cannot be construed as the termination of the Parliament’s power.

'Why provincial assembly cannot enact laws?'

Justice Akhtar asked the AGP why the provincial assembly cannot enact laws.

The CJP raised a question about Constitution makers deliberately using the word Parliament or Law.

He added that they have created the Constitution as a strong book that can be used when needed.

Justice Mazhar asked the AGP about the usage of the word “law” in Article 191.

“In Article 191, law shall mean an act of Parliament,” Awan replied.

Justice Ahsan remarked that the framers of the Constitution could also have said that the SC would make its own rules until any legislation was passed.

“It is not clear from the intention of the framers that the SC rules can be changed by legislation,” he added.

Justice Ahsan said Article 191 has nowhere written that a law will be made and rules will be made under it.

“The word law in Article 191 does not include the 1956 rules,” the AGP said.

CJP Isa asked where the Consitution mention that court decision will also be law.

“Adherence to court decisions and their implementation is essential,” he remarked.

“The power to make rules has been given by the constitution to the executive, judicial and Parliament. Are the rules of the executive and Parliament laws?” Justice Ahsan asked.

The AGP, later, stated that the rules of the executive and Parliament have the status of law. “Rules are laws but they shall not be called laws as used in Article 191.”

“The last rules of the Supreme Court were made in 1980, this means the Parliament was sleeping for 43 years?” Justice Naqvi asked.

Awan said it is possible that if the pending cases increase in the Supreme Court, Parliament will have to make another law.

Justice Afridi said there are mistakes in both the Supreme Court and the Parliament.

“The SC is an establishment and a Titanic, how can it be turned around here and there at once?” he remarked.

“Why did Parliament remember to enact this legislation after so many years? Was the purpose of the Parliament's legislation intended to divide the power of an individual?” Justice Mandokhail asked the AGP.

He added that the Constitution does not mention who will make the bench.

'What if SC decides not to implement the law'

Justice Ahsan asked what would happen if the SC decided not to implement the law.

“You are bound by the Constitution and the law according to your oath,” the AGP replied.

Justice Mandokhail if the judges will violate their oath if they don’t follow the SC law.

“Adherence to the practice and procedure act is mandatory,” Awan said in response.

Justice Akhtar questioned why to give authority to three judges when it is not being given to one.

“We respect the Parliament and want the Parliament to respect the SC,” the CJP said.

He added that the SC’s job is to praise the Parliament if it makes good laws. “It can be debated whether the law is good or bad.”

Responding to the judges about the powers of the Parliament, the AGP said: “The Parliament can directly legislate to extend the jurisdiction of the SC. It doesn’t have the power to legislate directly on high courts and the Federal Shariat Court.”

“In other words, the constitutional ban is for the high courts and sharia court, but not SC?” Justice Akhtar asked.

Following the resumption of the hearing after a break, the AGP continued to respond to the questions of the full-court judges.

The CJP, during the hearing, remarked that the judges should have the courage to hear criticism.

“The attorney general is only showing us a mirror,” the chief justice said.

More to follow...