Daily Times

There is no doubt that in regard to the Suo Moto proceedings under Article 184(3) of the Constitution and the makeup of the Supreme Court judges benches in light of significant constitutional issues, there has always been a great deal of discussion about the Chief Justice’s authority, procedures, and discretionary powers. These issues have been brought up by political parties, bar associations, and the legal community at various times for the last many years, but nothing has been done that should have been done sooner, either through legislation with the support of the Supreme Court or by the Supreme Court itself through amendment of the Supreme Court Rules of 1980.

In that context when the Supreme Court failed to convene its full court meeting despite repeated requests from various quarters to address these genuine legal issues for the last many years, the (Practice and Procedure Bill) 2023 was passed by the National Assembly and Senate on March 29 and March 30, 2023 respectively. The President sent the bill back for reconsideration without his signature, but after meeting all requirements and regulations, the Joint Session of Parliament once more approved and passed the bill on April 10, 2023.

The credit for the present judgment in a present shape should also go to the incumbent Chief Justice of Pakistan who was very generous to give up his power and has believed in the common and collective wisdom of the Supreme Court which reflected in his court observations while associating the two most senior judges of the Supreme Court regarding 184(3) proceedings and constitution of benches for hearing cases filed in Supreme Court.

The (Practice and Procedure Act) 2023 has suggested many good things accepted by all including that every case, appeal, or matter before the Supreme Court be considered and decided by a bench made up of the Chief Justice of Pakistan and two senior judges, in that order. Additionally, it states that any matter involving the exercise of original jurisdiction under paragraph (3) of Article 184 of the Constitution must first be brought before the committee for review. If the committee determines that the matter involves the enforcement of one or more fundamental rights, it must then establish a bench consisting of at least three judges of the Supreme Court, which may also include committee members.

The Act further has described that an appeal be filed within 30 days of the larger bench of the Supreme Court receiving the jurisdiction’s final order and that the hearing date for such an appeal be set within a window of no more than 14 days. Additionally, it gives a party the freedom to select the attorney of its choosing when submitting a review application. A cause, appeal, or other matter’s application alleging urgency or requesting interim relief must be scheduled for hearing within 14 days of the application’s filing. The earlier the operation of the bill was suspended by the Supreme Court on April 13, but no conclusive hearing took place after. However, when the incumbent came to the office of the Chief Justice, he constituted the full court and started hearing on 18th September which continued for five hearings till the announcement of a verdict yesterday, and decided the case by 10 to 5 majority of the judges.

That while admitting the legislative competency of the Parliament through the present judgment by the majority judges of the Supreme Court which was the major legal controversy before the Supreme Court with special reference to Article 191 of the Constitution regarding the internal practice and procedure of Supreme Court, the present judgment would have far-reaching effect for the justice deliverance at Supreme Court both in terms of proceedings be initiated under Article 184 (3) of the Constitution and constitution of benches which resultantly would provide more fairness into Supreme Court proceedings and would also avoid criticism in future.

It has been further coming out after the issuance of the present judgment that there was no intrusion to the concept of independence of judiciary and separation of powers while making such legislation by the Parliament, and there was as well no curtailment for the jurisdiction of the Supreme Court, and that was as well critical for the outcome of the present decided proceedings. While implementing these provisions of the Practice and Procedure Act, substantial relief would be available for those against whom the proceedings would be initiated under Article 184 (3) of the Constitution but simultaneously would also provide relief for the common litigants for their early fixation of cases in 14 days from the date of institution while they would approach to Supreme Court.

There is another good thing came out of the judgment that earlier the Chief Justice had the sole authority to establish benches for hearing all types of cases, including those brought or filed under Section 184(3) of the Constitution under the Supreme Court Rules 1980, but now to onwards, these matters would be decided by the Committee of three most senior judges including the Chief Justice of the Supreme Court and that practice would start many legally healthy things in the Supreme Court for court hearing matters. The other good thing about the present proceeding was that the proceedings of the Supreme Court were for the first time aired on national media which resultantly has given e more legal awareness to the common man and also stopped the path of wrong court reporting, and this credit goes to all judges of Supreme Court.

The credit for the present judgment in a present shape should also go to the incumbent Chief Justice of Pakistan who was very generous to give up his power and has believed in the common and collective wisdom of the Supreme Court which reflected in his court observations while associating the two most senior judges of the Supreme Court regarding 184(3) proceedings and constitution of benches for hearing cases filed in Supreme Court. Though there was no clear retrospective effect of the present law on the cases decided under Article 188 of the Constitution when their judgment was challenged after the decision announced under Article 184 (3) of the Constitution, the Supreme Court considered this aspect as well and declared and clarified further in clear terms that this law would not have the retrospective effect but would apply to the proceedings from the date of its promulgation.

The writer is a practicing lawyer at Supreme Court and has served as Chairman, Federal Excise & Sales Tax Appellate Tribunal and Senior Advisor Federal Ombudsman. He can be reached at: hafizahsaan47@gmail.com.