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.
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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.PauseUnmute
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.
