• 10-5 verdict tasks three-judge panel with fixing benches; right to appeal under Article 184(3) granted, provision for retrospective application vetoed by 8-7
• Justice Masood points out ‘duplicity’ of petitions challenging changes to bench-making process

ISLAMABAD: In a split, but anticipated decision, the Supreme Court on Wednesday upheld a law formulated to regulate the affairs of the top court, with a caveat that the right to appeal provided against a decision taken under Article 184(3) will not be applicable retrospectively.

Headed by CJP Qazi Faez Isa, the full court announced the judgement at 6:25pm from Courtroom No.1 and effectively rejected all the challenges to the Supreme Court (Practice and Procedure) Act 2023. The short order also overturned the April 13, 2023, stay granted by an eight-judge bench headed by former CJP Umar Ata Bandial on the enforcement of the act.

Divided into three parts, the reasons for which will come later, the short order on Wednesday by a majority of ten to five rejected all the petitions and sustained the act as constitutional.

The judges who dissented were Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik, and Justice Shahid Waheed.

‘Nine to six’

The second part of the decision was split nine to six. It explained Section 5(1) of the law that deals with granting a right of appeal prospectively is in accordance with the Constitution and to this extent the petitions are dismissed. Dissenting judges included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed.

Similarly the third part of the short order by a majority of eight to seven deals with the grant of the right of appeal in retrospect under Section 5(2) of the act and was therefore declared to be ultra vires and to this extent, the petitions were accepted.

The judges who dissented were CJP 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.

‘Past, closed transactions’

This means that, as contended earlier by AGP Mansoor Usman Awan, the cases moved under Article 184(3) of the Constitution and already decided by the Supreme Court will now be considered past and closed transactions and therefore no appeal will lie against such decisions. This also includes the Sept 15 judgement in which the top court struck down the tweaks to the NAB law, which revived cases against many political bigwigs.

Through the law, the authority earlier vested in the CJP to constitute benches and fix cases instituted under Article 184(3) — an inherent power of the Supreme Court to enforce fundamental rights as guaranteed under the Constitution — was devolved to a collegium of three senior judges, including the CJP.

In cases involving fundamental rights, the court will constitute a bench comprising not less than three judges, which may also include the members of the committee, for adjudication of the matter.

If the matter involves interpretation of a constitutional provision, the law explained, the committee will constitute a bench consisting of not less than five judges of the top court.

Debate on Article 184(3)

Towards the end of proceedings, Justice Sardar Tariq Masood while pointing towards the petitioners, wondered why the law was being opposed when the same lawyers who challenged the law were on the roads protesting when benches were being formed under Article 184(3) by successive chief justices, only to validate dictators. Now the opponents of the law were aggrieved merely because the power to constitute benches has been devolved to a committee of three judges.

During the hearing, the AGP was discouraged from mentioning how the country suffered badly due to the unabated invocation of Article 184(3) of the Constitution.

He referred to the 2006 Pakistan Steel Mills (PSM) case, the privatisation of which was blocked by the Supreme Court when the entity was making a profit to the tune of Rs4 billion.

The AGP was about to mention the case of Reko Diq, when Justice Naqvi intervened that the highest court should not be charge-sheeted in this way by referring to the judgement.

“But it is a fact,” the AGP retorted. Justice Akhtar asked what was the relevance of mentioning the PSM case. “What necessitated the law is the exercise of Article 184(3) by the court in the past,” the AGP said.

“Are you trying to invoke the doctrine of necessity to justify the enactment of the law,” Justice Shahid Waheed observed. At this, the CJP intervened stating one should have the heart to listen to the arguments which “does not mean charge-sheeting” of the apex court.

Published in Dawn, October 12th, 2023