GP Short Notes

GP Short Notes # 763, 12 October 2023

CJP acknowledges the Practice and Procedure Act 2023
Shamini Velayutham

On 11 October, the Supreme Court presided over by Chief Justice of Pakistan (CJP) Qazi Faez Isa, made legal history by recognizing the power of the legislature to enact laws affecting how the Supreme Court conducts its proceedings. This development is especially significant because many commentators think that the Supreme Court has been utilized to undermine public institutions, including Parliament, since the judiciary was restored in March 2009. A top attorney hailed the entire court's decision as a huge victory for CJP Isa as well as for parliament. He saw it as the dismantling of judicial haughtiness that had long predominated in the shape of judicial opinions. The Supreme Court overturned many laws while Iftikhar Muhammad Chaudhry, Mian Saqib Nisar, and Umar Ata Bandial were Chief Justices of Pakistan. The public interest jurisdiction of the Supreme Court was frequently used for political scheming, which resulted in the disqualification of several politicians under Article 184(3). But CJP Isa acknowledged during the most recent case hearings that the legal system had been exploited and decisions had been made without following due procedure.

What does the Practice and Procedure Act 2023 say?
The Act specified that every case, matter, or appeal before the Supreme Court would be considered and decided by a bench chosen by a committee made up of the Chief Justice of Pakistan and the two senior-most justices. According to the Act, any subject involving the application of Article 184(3) would first be presented to the committee before the top court's original jurisdiction could be exercised. Based on the Act, the committee would assemble a bench of at least five judges of the Supreme Court for cases requiring the interpretation of the Constitution. The Act stated that an appeal would be allowed to a larger SC bench within 30 days after the bench's order for any judgment rendered by an apex court bench that exercised its authority under Article 184(3). It also stated that the appeal would be scheduled for a hearing within a maximum of 14 days.

The verdict
Ten judges voted in favour of the law, while five judges were against it, and the full court dismissed the petitions in a brief judgment. Shahid Waheed. The judges concluded by majority vote that sub-section (1) of Section 5 of the Act (which grants the right of appeal prospectively) was also declared to conform with the Constitution. Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi, Ayesha A. Malik, and Shahid Waheed all expressed their disagreement with the right to potentially appeal the decision. Additionally, the court rejected sub-section (2) of Section 5 of the Act, which allows the right of appeal subsequently and granted the petitions by a small majority of eight judges with seven dissenting. The judgment indicated that Chief Justice Qazi Faez 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 were among those who argued in favour of the right to a retrospective appeal. A prospective applicant, like Nawaz Sharif, cannot appeal against his lifelong ban from politics because the right of retrospective appeal has been refused.

Law Fraternity’s response
Commenting on the verdict, Advocate Abdul Moiz Jafferii said it was admirable that CJP Isa went the difficult road to get the outcome he wanted. He presented the procedure to the entire nation, allowing every judge to have a say and a vote, rather than assembling a bench of his choosing to overturn the Supreme Court's stay order issued on 13 April halting the application of the SC (Practice and Procedure) Act, 2023. Jafferii, who thought that this act was outside the purview of parliament's legislative authority, disagreed with the judge's findings. He asserted that the lack of the previous Chief Justices to establish appropriate guidelines for the Supreme Court allowed for the commission of this offence. According to him, when CJPs get involved in politics, they help those whose job it is to play the political game. 

Responses from the political parties
In response to the Supreme Court's ruling on the Supreme Court (Practice and Procedure) Act, 2023, the Pakistan Muslim League-Nawaz (PML-N), Pakistan People’s Party (PPP), and Pakistan Tehreek-e-Insaf (PTI) have praised the court's decision. Shehbaz Sharif, the leader of the PML-N, described the decision as a "welcome step" and noted that it demonstrated the judiciary's regard for the legislature. Sherry Rehman, a senator for the PPP, referred to the choice as "an important step for parliament's supremacy." She continued, "Today’s proceedings and verdict in the Supreme Court have certainly enhanced the transparency and faded image of the superior court. It is also an important step forward for Parliament’s supremacy in its first obligation of making laws." In an indirect jab at the PML-N, PTI stated in a statement following the ruling by the top court that those who had placed political faith in the ruling were disappointed. PTI said in a statement on its X account that the party's action plan would be implemented following a careful review of the judgement.

Nasir Iqbal, 
“SC upholds ‘contested’ law regulating its affairs,” Dawn, 12 October 2023
Hasnaat Malik, 
“Rare Feat: How Justice Isa makes history,” The Express Tribune, 12 October 2023
“PML-N, PPP hail SC verdict on law curbing CJ's powers,” The News International, 11 October 2023
Sabih Ul Hussnain, 
“In Majority Decision, Supreme Court Upholds Practice And Procedure Act,” The Friday Times, 11 October 2023

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