A Strong Dissent By Justice Yahya Afridi in The Supreme Court Practice and Procedure Act, 2023, Case:
In the Supreme Court Practice and Procedure Act, 2023 case, Justice Yahya Afridi has upheld the Act except one section: Section 5 of the Act. His opinion declaring section 5 (2) ultra vires the Constitution is exceptionally well-reasoned. He delves deep into the history of constitutional provisions related to the original jurisdiction of the Court some of which were common to all the Constitutions from 1935 to 1973.
Justice Afridi has held that while the Parliament is competent to legislate on the practice and procedure of the Supreme Court, It cannot confer a right to appeal thorough an ordinary legislation. On this point he along with other five judges has dissented from the majority opinion. Therefore, to the extent of practice and procedure of the SC the Parliament is competent to make laws and regulate it. This is the majority judgment as well to which he concurs. He along with other five colleague judges dissents to section 5 (1) which grants right of appeal to an aggrieved party by an order passed by the SC under Article 184 (3), the original jurisdiction of the Court. He holds that this is something which amounts to create a parallel right to review under Article 184 (3) of the Constitution. This is a new jurisdiction which, he says, that can only be conferred through an amendment in the Constitution. He approves of the provision of an appeal, but he suggests that it should be done through an amendment, not an ordinary law. Thus, section 5 (1) of the Act amounts to amendment in the Constitution which cannot be allowed in anyway.
Second Limb of His Note:
In so far as the vires of section 5(2) is concerned, Justice Afridi has concurred with majority opinion. He has held that appeal cannot be provided retrospectively against orders which have already been passed before the promulgation of the Act. He holds that section 5 (2) is also ultra vires the Constitution which gives retrospective effect to the Act. This will allow to open the past and closed transactions which have attained finality.
His opinion as well as the additional note is at par excellence, well-reasoned and well-grounded. One may easily understand the true nature of the case at hand and the Constitution scheme reading the opinion.
const.p._6_2023_dn
