Detailed verdict notes: ‘Practice, procedure law doesn’t undermine SC, ensures judicial independence’

ISLAMABAD: The Supreme Court has held that the Supreme Court (Practice and Procedure) Act, 2023 has facilitated access to justice, instilled transparency, made realization of fundamental rights more effective and the measures taken in the Act ensure judicial independence.

A full court, headed by Chief Justice Qazi Faez Isa, on Wednesday issued its detailed judgment in the SC (Practice and Procedure) Act, 2023. 

“The Act does not in any manner violate the Constitution, it does not undermine the Supreme Court, nor does it compromise the independence of the judiciary,” says the judgment, adding that “in effect, it does the very opposite in ensuring the enforcement of fundamental rights, strengthening the judiciary and creating greater independence therein”.

Other members of the bench included 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 Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

The court upheld the constitutionality of the Act and dismissed all petitions, challenging the Act.

The court on October 11, 2023 had disposed of the petitions, challenging the Act and by majority of 10 to 5 had sustained the Act as being in accordance with the Constitution.

Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed, however, had dissented.

Similarly, the court, by a majority of 9 to 6 (Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) Sub-Section (1) of Section 5 of the Act (granting a right of appeal prospectively) had to be in accordance with the Constitution.

The court also, by a majority of 8 to 7 (Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Aminuddin 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) had declared to be ultra vires the Constitution and to this extent had allowed the petitions.

“We have very carefully considered each and every provision of the Act, and are of the view that it has facilitated access to justice, instilled transparency, made the realisation of fundamental rights more effective, and the Supreme Court more independent,” says the detailed judgment, authored by Chief Justice Qazi Faez Isa.

The court held that the office of the chief justice had also been strengthened as there was an element of continuity when consultation took place with the two most senior judges.

The court noted in its detailed judgment that the measures taken in the Act ensured judicial independence, and the Supreme Court had been made to better serve people.

“The Constitution empowers the parliament to legislate with regard to making the practice and procedure of the Supreme Court as it specifically stipulated in Article 191,” the court held, adding that parliament enacted the Act which did not, in any manner, infringe on any of the fundamental rights, rather facilitated their enforcement.”

The court held that the Act also grants an appeal to one who is aggrieved by a decision of the Supreme Court, which is passed in exercise of the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution.

“A standard good worldwide practice and the injunctions of Islam require that an appeal be provided and when two interpretations are possible, the one that conforms with the injunctions of Islam shall be adopted,” the detailed judgment noted.

The court held that Article 175(2) of the Constitution envisages the conferment of jurisdiction, adding that a larger bench of the Supreme Court had been conferred with the additional jurisdiction of appeal, which fully accords with the Constitution.

The court noted that the first petition was filed by two Lahore-based lawyers, who were represented by Messrs Khawaja Ahmad Tariq Rahim and Imtiaz Rashid Siddiqui.

The court noted that the Office of the Supreme Court had noted five legal objections on the filing of the petition in the Supreme Court, the first two of which are reproduced hereunder:

“A. That the petitioners have not pointed out as to what questions of public importance in the instant case are involved with reference to enforcement of any of the fundamental rights guaranteed under the Constitution, so as to directly invoke jurisdiction of the Supreme Court under Article 184(3) of the Constitution.

“B. That ingredients for invoking extraordinary jurisdiction of this court under Article 184(3) of the Constitution have not been satisfied.”

The court noted that an eight-member bench of the apex court proceeded to hear these petitions, but did not attend to the office objections, nor whether the petitions were maintainable under Article 184(3) of the Constitution.

“Another three petitions were filed, seeking the same relief, and when all six petitions came up for hearing on May 2, 2023, it was ordered that injunction continues and shall continue to be enforced against the Act till further orders.”

The court noted that on April 21, 2023, the bill became the Act. Section 2(1) of the Act requires that cases be heard and disposed of by a bench constituted by the committee comprising the Chief Justice of Pakistan and two most senior judges, in order of seniority, however, this provision was disregarded.

The court after finding the Act to be fully compliant with the Constitution noted that there is no need to consider the other points raised by the petitioners, because the same will have no bearing on the outcome, and this court did not generally dilate upon academic propositions. “Therefore, for the aforesaid reasons, these petitions are dismissed and the constitutionality of the Act is upheld,” the detailed judgment concluded.

Meanwhile, Justice Yahya Afridi asserts that parliament, by introducing the right to appeal against orders within the Supreme Court’s existing original jurisdiction under Article 184(3) of the Constitution, hasn’t ‘enlarged’ but has established a distinct appellate jurisdiction, not outlined in the Constitution.

In his dissenting note on the detailed judgment regarding petitions challenging the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023, Justice Yahya Afridi emphasises that the term ‘enlargement’ cannot encompass the ‘creation’ of a new jurisdiction.

Addressing another aspect, Justice Yahya Afridi underscores that the Constitution grants the Supreme Court its original jurisdiction under Article 184(3), making it beyond the legislature’s reach through ordinary legislation like Section 5 of the Act. He notes that Article 184(3) doesn’t subject the exercise of its original jurisdiction to being “subject to law”.

The judge points out that despite the attorney general and other counsel supporting the constitutionality of Section 5, none could identify explicit authorisation by or under the Constitution for parliament to intervene in the Supreme Court’s original jurisdiction under Article 184(3). “In my considered opinion, parliament lacks legislative competence to enact Section 5 of the Act,” declared Justice Afridi.

He adds that while providing a right to appeal against orders in the court’s original jurisdiction is a positive step for fair trial and due process, it cannot override the Constitution, the fundamental law of the land.

Justice Afridi maintains that if parliament aims to enable an appeal against orders in the exercise of the Supreme Court’s original jurisdiction under Article 184(3) of the Constitution, the proper course is to amend the Constitution. “With the utmost respect for parliament, I declare that Section 5 of the Act has been enacted by parliament beyond its ordinary legislative power conferred on it under the Constitution; Section 5 of the Act is, therefore, ultra vires the Constitution and thus of no legal effect,” concludes Justice Afridi.