The Supreme Court on Wednesday issued its detailed judgment on the Supreme Court (Practice and Procedure) Act, 2023, highlighting that the chief justice is not a “Master of the Roster,” and as such cannot substitute his wisdom with that of the Constitution, or have his opinion prevail over other judges.
Penned by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the 22-page ruling maintained Parliament’s Supreme Court (Practice and Procedure) Act, 2023 did not infringe any fundamental rights, adding it actually facilitates their enforcement. The Constitution, it said, empowers Parliament to legislate on practice and procedure of the Supreme Court as stipulated under Article 191.
The split decision of a full court bench of 15 judges had in October upheld the law, while rejecting a clause granting right to appeal on decisions under Article 184(3) of the Constitution with retrospective effect. The ruling noted that the Act contained nothing unconstitutional, illegal or objectionable, stressing the Constitution did not grant unlimited jurisdiction on the apex court or its CJ, as the Supreme Court comprises all judges.
Referring to the “Master of the Roster” term used to justify the CJP’s authority in the past, the judgment said it was not contained in the Constitution, any law, or even SC Rules, adding nor did it empower the CJP to act solely at their own discretion. Describing the word “master” as offensive in any democracy, the judgement said it suggests servitude, whose extreme form is slavery prohibited by the Constitution.
According to the detailed ruling, history has proven that when power is concentrated in a single individual, disastrous consequences invariably follow. It regretted that irreparable damage was caused to the judiciary and to the people of Pakistan when the legitimacy, integrity and credibility of the judicial system was undermined. Noting the Constitution has laid down strict jurisdictions and powers of the legislature and judiciary, it said “mutual respect” requires the Supreme Court not substitute its own opinion for that of Parliament, regardless of its views on any given matter. Interventions, it stressed, must only occur if Parliament enacts a patently unconstitutional legislation.
“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 realization of the fundamental rights more effective and the Supreme Court more independent,” it added.
Additional note
In an additional note, Justice Yahya Afridi referred to Section 5 of the act, which had sought to grant retrospective right of appeal to cases decided under Article 184(3). Declaring this section was beyond Parliament’s ordinary legislative power, the judge said it was ultra vires of the Constitution.
The 24-page note observed that right of appeal against any order of the SC aimed to ensure the requirements of fair trial and due process, adding this practice could not violate the Constitution. Noting he had upheld the validity of the rest of the Act, Justice Afridi said the only constitutional means of granting retrospective appeal was through a constitutional amendment.
Explaining that the original jurisdiction under Article 184(3) was granted by the Constitution, he wrote that it cannot be infringed through ordinary legislation. As such, he said, judges supporting it could not identify any explicit authorization in 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,” he wrote.
On Section 2, which pertains to the constitution of benches by a committee of three senior-most judges, Justice Afridi said that while he did not believe anyone should “doubt the integrity and good intention of CJP in constituting benches,” the “charged political milieu” in the country and “excessive” use of “original and advisory jurisdiction” in political matters had cast aspersions that required a methodology for bench formation.
The public perception regarding the composition of benches and allocation of cases is of prime importance, he stressed, adding the federal government should rethink Section 2 of the Act.