A full court bench on Wednesday upheld the Supreme Court (Practice and Procedure) Act, 2023 with a 10-5 majority after rejecting almost all challenges to it.
Comprising all 15 judges of the apex court, the full court had reserved its verdict in the case earlier in the day after conducting five hearings that were broadcast live on state-run TV to boost transparency of courtroom proceedings. Reading out the order around 6:25 p.m., CJP Qazi Faez Isa said that five members of the bench—Justices Ijazul Ahsan, Munib Akhtar, Sayyed Mazahir Ali Akbar Naqvi, Ayesha A. Malik, and Shahid Waheed—had opposed the law, while the remaining 10 judges had supported it.
This means that, going forward, the CJP would be required to determine bench formation with a committee comprised of two senior-most judges. The law also calls for cases involving fundamental rights to be heard by a bench comprising no less than three judges, which may also include the members of the committee. If the matter involves interpretation of a constitutional provision, states the law, the committee would constitute a bench consisting of no less than five judges of the top court.
Noting a detailed verdict would be issued later, the CJP said a majority of 8-7—with the CJP and Justices Sardar Tariq Masood, Syed Mansoor Ali Shah, Aminud Din Khan, Jamal Khan Mandokhail, Athar Minallah and Musarrat Hilali dissenting—had declared Section 5(2) of the Act in violation of the Constitution. The clause had sought to grant a right of appeal retrospectively against verdicts issued under Article 184(3), or suo motu, of the Constitution.
Thirdly, the ruling found a majority of 9-6—with Justices Ahsan, Akhtar, Yahya Afridi, Naqvi, Malik, and Waheed dissenting—supporting Section 5(1) of the Act, granting the right of appeal to future judgments under Article 184(3), to be in accordance with the Constitution.
Rejecting petitions arguing Parliament lacked the “competency” to legislate under Article 191—which states that SC rules are subject to the Constitution—the ruling maintained the elected body had the right to do so.
The law would now go into effect from April 21, 2023—the day it was enacted and subsequently stayed by then-CJP Umar Ata Bandial—indicating any verdicts under 184(3) issued after this date can now be appealed. The decision to not allow retrospective appeals, meanwhile, suggests cases moved under Article 184(3) of the Constitution and already decided by the Supreme Court would now be considered past and closed transactions.
Earlier, during the final day’s proceedings, Justice Masood questioned the petitioners’ opposition to the law, noting the same lawyers had protested when benches were being formed under Article 184(3) by successive chief justices to validate dictators. Meanwhile, Justices Naqvi and Akhtar were quick to discourage the attorney general for Pakistan from referring to past 184(3) cases and their adverse impact on Pakistan.
The CJP, meanwhile, sought to discourage attempts to pit Parliament against the Supreme Court, observing the legislative body was not the enemy of the people and both institutions should “live and let live.” Questioning why every institution saw the other negatively, he added: “Why can’t it be said that one institution legislated for the betterment of another?”
Political response
Major political parties—including the Pakistan Tehreek-e-Insaf who had argued against the law in court—welcomed the verdict, noting it democratized the working of the Supreme Court.
“The Supreme Court’s verdict regarding the Practice and Procedure Act 2023 is a welcome step. It not only democratizes the workings of the Supreme Court itself but also shows due respect to the Parliament, which represents the people of Pakistan,” wrote former prime minister Shehbaz Sharif on X, formerly Twitter.
He also sought to negate the impression this ruling would negatively impact party leader Nawaz Sharif, adding: “It is important to mention that, according to legal experts, the specific clause under discussion concerning appeals against past judgments does not affect Mian Nawaz Sharif.”
PPP senator Sherry Rehman, meanwhile, described the verdict as an “important step for Parliament’s supremacy.” Stressing the proceedings and ruling had enhanced the transparency and “faded image” of the Supreme Court, she praised the CJP for sharing his powers to fix benches. “Appeals for suo moto cases being allowed are long overdue,” she added in a statement on X.
The PTI, meanwhile, claimed the ruling should discourage Nawaz Sharif from returning to Pakistan. It also claimed this would benefit party chief Imran Khan, but it remains unclear why the party opposed its implementation if this is true.