Justice Shahid Waheed of the Supreme Court on Wednesday while releasing a dissenting note said Practice and Procedures Act was against the Constitution.
In the dissenting note, Justice Shahid Waheed wrote, “If permission is granted to take help of Article 191 of the Constitution, it will cause interference in court affairs through promulgation of ordinances.”
He said judiciary’s powers could only be increased through an amendment in the Constitution. “By simple legislation, powers of the judiciary cannot be enhanced,” he said.
He said the Judges Committee will be able to make its rules according to Practice and Procedures Act.
“The three-member committee of judges cannot rectify the shortcomings in Practice and Procedure Act by making rules. If no member of the Judges Committee is available, who will replace him? According to the Practice and Procedures Act, no other judge can replace a committee member,” Justice Waheed noted.
Justice ShahidWaheed wrote in the dissent note that what will happen if two members of the committee decided to send the chief justice to provincial registry? He said the chief justice was the administrative head of the Supreme Court, the consequences of sending him to another province could be serious. “If one member is sick and the other is out of the country, how will the benches be formed in emergency situation?,” he asked.
He wrote there were no answers to these questions in law, nor could the Judges Committee find any solution to these queries.
According to the Constitution, only the court could decide whether any petition was maintainable or not. The Judges Committee was not authorized to do so administratively.
He said Sections 3 and 4 of the Practice and Procedures Act were contradictory to each other. According to Section 3, the case of fundamental rights of 184/3 could be heard by a three-member bench. Justice Shahid Waheed said in the note that according to Section 4, only a five-member bench could interpret the matter of fundamental rights, Section 3 allowed hearing and constitutional interpretation, while Section 4 prohibited it.
“Every second case of the Supreme Court requires interpretation of the Constitution,” he noted.
