The Supreme Court on Wednesday upheld the Parliament-approved Practice and Procedure Act which curbs the chief justice’s powers to constitute benches and take suo moto notice.

The apex court gave a majority verdict that varied when deciding about different sections of the law. While the court gave an overall 10-5 majority verdict, one of the sections was upheld by 9-6 and another by 8-7.

There were several dissenting notes.

Judges who disagreed with the majority view included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Naqvi, Justice Ayesha Malik, and Justice Shahid Waheed.

The top court rejected the section about retrospective application of the law by 8-7. Chief Justice Qazi Faez Isa announced the judgement at around 7pm after a delay of over one and a half hours. The court was set to announce the judgement at 5:30pm but it faced delayed due to technical issues, said the CJP.

Earlier, a full court bench of the Supreme Court of Pakistan reserved judgment on petitions against the Practice and Procedure bill after Attorney General Mansoor Awan completed his arguments in defence of the law.

The hearing saw the attorney general facing intense questioning from the bench, often from multiple judges as he struggled to make himself heard. However, at the end of the hearing, Chief Justice Qazi Faez Isa praised him for his patience in facing the questioning.

As Awan tried to recount cases where the Supreme Court’s orders had caused loss to the public exchequer, such as the Steel Mills privatisation case, Justice Shahid Waheed took objection to his remarks.

Justice Waheed asked the AG if he was giving a charge sheet to the Supreme Court. He also asked the lawyer if the court’s decisions could be justified to give the right of making legislation to the parliament for which it had no competence.

However, Chief Justice Isa interjected to say that the lawyer had not used the word charge sheet but had simply stated facts. He added that the judges should hear the lawyer out as he made his argument since cases under 184(3) had led to both good and bad things

The full court comprises Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, and Justice Musarrat Hilali. The proceedings were livestreamed.

Tuesday’s hearings had turned tense when the CJP stopped Justice Munib Akhtar and Justice Ijaz ul Ahsan from posing questions to lawyer Faisal Siddiqui who was representing MQM.

The hearing

The AG said that he would base his arguments on the government’s written response and baegan by arguing about the parliament’s right to legislate. He said that there were no restrictions on the Parliament amending rules under Article 191.

Justice Ahsan asked if this meant there were no restrictions on parliaments to frame rules for SC. To this, the AG replied that the Parliament was the institution that created laws and more laws could be created if the number of cases pending in court crossed 70,000.

“If it wanted, the Parliament could have taken another step which it did not. I believe that step was not taken because the Parliament trusts us,” the CJP said. He added that institutions should not be ’pitted against each other.

However, as Awan tried to refer to cases where the use of suo motu powers had led to losses for the state, Justice Waheed asked if he was chargesheeting the court. Justice Afridi added that by implying that the law had been made due to those court judgement, the AG seemed to be invoking the doctrine of necessity.

The CJP said that it seemed that the court was ‘afraid’ of listening to the truth.

What is the SC Practice and Procedure Bill

On March 30, the Senate passed the Supreme Court (Practice and Procedure) Bill 2023. The bill was aimed at clipping powers of the office of the CJP to take suo motu notice in an individual capacity and exercise discretion in forming benches.

While mentioning the constitution of benches, the bill stated that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges, in order of seniority. The decisions of the committee would be taken by a majority, it added.

The bill said that any matter invoking the use of Article 184(3) of the Constitution would first be placed before the abovementioned committee.

“Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article,” states Article 184(3) that pertains to the Original Jurisdiction of Supreme Court.

“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill read.