• Justice Mansoor Ali Shah asks CJP to wait until decision on SC (Practice & Procedure) Act, 2023
• Suggests that in the interim, urgent matters can be heard by a full court

ISLAMABAD: Supreme Court’s Jus­tice Syed Mansoor Ali Shah has sugges­ted that the chief justice halt proceedings of cases instituted under Article 184(3) of the Constitution, until a final decision on the fate of a new bill aiming to regulating the process to form benches.

Article 184(3) outlines the original jur­i­sdiction of the Supreme Court and emp­owers it to take suo motu notice of any action or development which, in its opinion, is a matter of public importance and involves the fundamental rights of cit­izens as guaranteed by the Constitution.

The outgoing government had enacted the Supreme Court (Practice and Proce­dure) Act, 2023 with a perceived aim of clipping the chief justice’s powers to form benches and fix any case before him.

The bill was passed by the parliament earlier this year. However, an eight-judge bench, including the CJP, stayed the bill’s implementation after a set of three petitions challenging it.

According to the legislation, a three-member bench, comprising the chief justice and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu.

Justice Shah’s remarks were part of the two-page note he issued after Friday’s hearing on former prime minister Imran Khan’s challenges to the amendments in the National Accountability Ordinance.

If the judge’s suggestion is accepted, several cases, including the one challenging amendments to the NAB law, would have to be heard afresh by a full court.

In such an eventuality, incumbent CJP Umar Ata Bandial, might not be able to decide those, since he is set to retire in the middle of next month.

Justice Shah’s note

Justice Shah also referred to his opinion in the case of civilians’ trials in military courts where he had made the same suggestion.

In his note, Justice Shah added while the court decided the petitions against the law, all cases that required urgent hearing could be heard by a full court bench.

The judge had earlier made a request to CJP Umar Ata Bandial to constitute a full court bench to hear Mr Khan’s petition.

He hoped the CJP would consider the request “earnestly”.

In all fairness to the parties of this case, the judge observed, he consider it appropriate to give an opportunity to them to assist the court on the question of whether the present three-judge bench should continue hearing this case or should this case be adjourned till the court first decides the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023.

Or in the alternate, should the full court hear this case pending decision on the constitutionality of the act, he continued.

Justice Shah observed that even though the court had been hearing this case since July 2022 but earlier this year, the parliament enacted the new law which requires benches to be constituted by the three-judge committee.

Section 4 of the law stated any case involving the interpretation of the constitutional provision is to be heard by a bench comprising at least five judges.

The law being a procedural law also applies to pending cases under Article 184(3) of the Constitution, including the present case, Justice Shah observed adding he was aware that its implementation has been suspended by an eight-judge bench.

“It is clear that the suspension order of the eight-judge bench is an interim measure,” the judge wrote, adding if the court decided that the bill was in line with the Constitution, its implementation would take place from the date of its enforcement (April 10), not from the date of court’s decision.

Article 184(3)

When the Supreme Court takes suo motu notice of any incident where flagrant violation of fundamental rights were committed, it does so by invoking the said article.

The provision also allowed litigants to bring matters of public importance and human rights directly before the Supreme Court without approaching lower forums like the high courts or the district courts.

In the past, the court has invoked the article to strike down several government decisions, causing a perception that the constitutional provision disturbs the principles of separation of powers by encroaching upon the executive’s domain.

Currently, cases like the trials of civilians in military courts; petitions moved by PTI Chairman Imran Khan, including one to stop his ‘political victimisation’; or the Supreme Court Bar Association’s plea to hold general elections within the constitutionally mandated timeline have also been instituted under Article 184(3).

Published in Dawn, August 20th, 2023