• Apex court sees nothing wrong with SC Practice and Procedure law
• When power is concentrated in an individual, ‘disastrous’ consequences follow, CJP observes
• Intervention only needed when parliament enacts law demonstrably ‘unconstitutional’
• In additional note, Justice Yahya says giving ‘right of retrospective appeal’ beyond parliament’s power

ISLAMABAD: The Supreme Court on Wednesday held that the chief justice of Pakistan was not “Master of the Roster” and that he cannot substitute his wisdom with that of the Constitution nor can his opinion prevail over other judges.

In a detailed judgement, the SC said that the enactment of the Supreme Court (Practice and Procedure) Act 2023 by parliament does not infringe any fundamental rights, rather facilitates their enforcement.

Authored by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the 22-page detailed judgement said that Constitution empowers parliament to legislate on practice and procedure of the Supreme Court as stipulated clearly in Article 191.

The detailed judgement came to explain why the SC upheld on Oct 11 that the PDM coalition had made the law to regulate its affairs, but with a caveat that the appeal provided against a decision taken under Article 184(3) of the constitution would not be applicable with retrospective effect.

It was a split decision by the full court consisting of all 15 available judges which effectively rejected all the challenges to the Supreme Court (P&P) Act after proceedings that were streamed live on the national hook-up.

There appears nothing unconstitutional, illegal or objectionable in the Act on a plain reading of the provisions, explained the CJP, adding the Constitution does not bestow unlimited jurisdiction on the SC, let alone on its chief justice.

The Constitution, he said, does not grant the CJP powers to decide cases unilaterally, reminding that the SC comprises the CJP and other judges.

The CJP cannot substitute his wisdom with that of the Consti­tution nor can the CJP’s opinion prevail over other judges.

The judgement rejected the term used often by describing the CJP as “Master of the Roster” by arguing that the term has not been mentioned in the Consti­tution, in any law or even in the SC Rules, let alone stating therein that the CJP was the master of the roster and empowered to act completely in his discretion.

Word termed offensive

The word ‘master’ is offensive in a constitutional dispensation founded on democracy. Master also connotes servitude, the extreme form of which is slavery, prohibited by the Constitution, the CJP emphasised.

History stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow, he observed, adding that irreparable damage was caused to the judiciary and to people of Pakistan when the legitimacy, integrity and credibility of the judiciary was undermined.

The Constitution has erected the legislature and the judicature and sets out their respective jurisdictions, boundaries and powers, which each must respect, the judgement said, adding that mutual respect requires that the Supreme Court should not substitute its own opinion for that of parliament, no matter how correct it considers it to be.

Interventions should be restricted to only when parliament enacts legislation which is demonstrably unconstitutional.

But in respect of the Act this has not been demonstrated, the CJP explained, adding, “We have very carefully considered each and every provision of the Act and were of the view that it has facilitated access to justice, instilled transparency and has made the realisation of the fundamental rights more effective and the Supreme Court more independent”.

Additional note

Justice Yahya Afridi, a member of the full court, declared that parliament had enacted Section 5 of the law beyond its ordinary legislative power conferred on it under the Constitution and therefore is ultra vires of the Constitution.

In a 24-page additional note, Justice Afridi observed that providing right of appeal against an order passed by the SC in its original jurisdiction was a positive thought to better ensure the requirements of fair trial and due process, but in pursuit of a positive outcome the Constitution cannot be disregarded.

The note explained that except for Section 5, Justice Afridi was part of the majority that upheld the constitutional validity of the Act.

If parliament intends to provide right of appeal against orders passed by SC in exercise of its original jurisdiction under Article 184(3), then it must adopt the “right course” — amend the Constitution, Justice Afridi explained.

The note stated that the original jurisdiction under Article 184(3) has been conferred on the SC by the Constitution. It cannot therefore be interfered with by the legislature thr­o­ugh ordinary legislation, such as Section 5, especially when Article 184(3) does not subject its exercise of original jurisdiction being ‘subject to law.’

Thus those supporting the constitutional validity of Section 5, were unable to point out any express authorisation by the Constitution for parliament to interfere with the original jurisdiction of the Supreme Court under Article 184(3). “Thus, in my considered opinion, Parliament lacks legislative competence to enact section 5 of the Act,” observed Justice Afridi.

Referring to Section 2, which deals with the constitution of benches by a committee of three senior judges, Justice Afridi explained that Section 2 has expanded the scope of regulating the practice and procedure of the court.

“I earnestly think that none should doubt the integrity and good intention of CJP in constituting benches but in the backdrop of the charged political milieu in the country, the excessive exercise of the original and advisory jurisdiction in matters of political nature led to aspersions, which could have been avoided had there been transparent criteria for constitution of the benches and fixation of the cases under Articles 184(3) and 186 of the Constitution.

The public perception regarding the composition of benches and allocation of cases is of prime importance, he said.

“Therefore, I urge the Federal Government to move Parliament to reconsider section 2 of the Act,” Justice Afridi said.

Published in Dawn, December 28th, 2023

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