ISLAMABAD: Supreme Court’s Jus­ti­ce Muhammad Ali Mazhar has supported the formation of the full bench, which had declared the Supreme Court (Practice and Procedure) Act 2023 in line with the Constitution on October 11, 2023.

In his additional note, the judge said it was logical to fix the case before the full bench rather than constituting a smaller bench to first hear the case and then a larger bench taking up the appeal against the previous bench’s decision.

Justice Mazhar’s note is in addition to the Supreme Court’s order in which the 15-judge full bench upheld the law — passed by the previous PDM government — to regulate the affairs of the top court. The decision, by a majority of 10 to 5, effectively rejected all the challenges to the Supreme Court (Practice and Procedure) Act, 2023.

The court, however, declared that the law’s provision granting the right to appeal against a decision taken under Article 184(3) with retrospective effect was against the Constitution.

Justice Mazhar rejects retrospective right to appeal, says laws should affect matters of future, not past

“Though I have advocated and reinforced the majority view with regard to the legitimacy and constitutionality of the Act, but in tandem I have declared the retrospective/retroactive right of appeal … ultra vires the Constitution,” the judge wrote.

He added that the Supreme Court should resolve the uncertainty regarding the future of the Act as soon as possible instead of gathering the wisdom and insight of judges in two phases in preference to the collective wisdom rendered by the full bench.

At the time when the initial eight-judge bench, headed by then chief justice Umar Ata Bandial, was constituted to hear challenges to the act, Justice Mazhar explained, the requisite number of at least nine judges was also not available in the total strength of the apex court to hear ICA, if filed, against the bench’s judgement.

When the incumbent chief justice of Pakistan (CJP), Qazi Faez Isa, assumed office, he had two options: either reduce the size of the bench to five or constitute a full bench.

The CJP, Justice Mazhar said, “righ­tly constituted the Full Court to hear all such petitions on a priority basis.”

During the hearing by the initial eight-judge bench, almost all the counsel, including the attorney general for Pakistan, requested the CJP to form a full bench, Justice Mazhar reminded.

Giving his reasons for a full bench to hear the case at the initial stage, Justice Mazhar wrote that if majority judges declared the Act ultra vires to the Constitution, then how can an intra-court appeal (ICA) could be filed when the law providing the right of appeal was struck down and no longer existed.

If a case has been decided by the full bench, then “the question regarding the deprivation of the right of Intra Court Appeal does not have much significance,” the judge added.

The note explained that prior to the law, the CJP was the master of the roster, and without the roster of sittings or the constitution of benches by him, no judge or bench could hear the cases.

“[I]n order to mitigate and clip off the sole discretion of the Chief Justice, the Act was enacted and now, for all intents and purposes, the functions of the master of the roster which vested solely in the Chief Justice have now been assi­gned and shifted to the collegium comprising the Chief Justice and the two next most senior judges of this Court.”

Retrospective application

Referring to the retrospective right to appeal granted in the law, Justice Mazhar explained: “In order to determine whether any beneficial, remedial or curative legislation has retrospective effect, the litmus test is to explore whether it is intended to clear up an ambiguity or oversight in the prevailing or standing law, and whether, in its pith and substance, it corrects or modifies an existing law or an error that interferes with the interpretation or application of the statute.”

“The new law may affect the future but not the past. Indeed, new laws are interpreted as functional and effective in the matters that arise after the enactment,” Justice Mazhar wrote in his note.

“[T]he provisions of a statute cannot be interpreted in a way that would lead to the devastation of rights and liabilities that have accrued by means of past and closed transactions, therefore the right of Intra Court Appeal with retrospective effect as provided under Sub-Section (2) of Section 5 of the Act is against public policy, as well as the doctrine of finality and immutability of judgments; hence to such extent it is declared ultra vires.”

Published in Dawn, January 6th, 2024