IN its verdict, which is widely being hailed by different segments of the society, the full bench of the Supreme Court Wednesday upheld the SC (Practice and Procedure) Act 2023, the law curtaining powers of the Chief Justice of Pakistan (CJP). The verdict acknowledges the parliament’s right to legislation under Article 191, which states that the SC rules are subject to the Constitution. The law will be effective from 21 April 2023, the day it was enacted, which means the SC verdicts under 184(3) which came after this date can be appealed for review.
The split verdict of the apex court has two distinctive features – as against the self-centred approach pursued by the former Chief Justice of Pakistan and some of his colleagues, the court has now acknowledged with a majority of 10-5 the right of Parliament to legislate, sending an encouraging message to the pillar of the State, which is considered to be the supreme everywhere in the democratic world. The pleas taken by the former CJP in this case and some other cases conveyed an impression as if even the power to legislate and virtually amend or re-write the Constitution vested with the judiciary. This tendency had created a visible rift between the two important pillars of the State, forcing legislators to express serious concerns over, what they saw, usurpation of their rights and powers.
Secondly, it is also a historic occasion as instead of consolidating his powers, the incumbent Chief Justice Qazi Faez Isa, who is known for going strictly by the book, voluntarily opted to dilute his powers and bring democratization in the top judicial office. The CJP’s power to form benches unilaterally was grossly misused, raising questions about motives behind formation of particular benches for a particular nature of cases. It is a fallacy to propagate that the law infringed upon the independence of the judiciary as instead of granting unilateral powers to an individual, it seeks to strengthen and empower the institution. The verdict also confirms an unfortunate perception that judges are divided on lines other than merit of cases. Isn’t it strange that the majority (of judges) consider sub-section (1) of section 5 of the Act (granting a right of appeal prospectively) in accordance with the Constitution but has a different view for grant of appeal retrospectively. If grant of appeal prospectively is a constitutional right, it can be argued that in the past this right was unconstitutionally denied to the aggrieved parties and this wrong should have been undone.
