Detailed Judgment of the SC in the SC Practice and Procedure Act Case Is Out. The Act, in general, Has Been Upheld by Majority of 10/5, except Section 5 (2) Which Has Been Declared Ultra Vires the Constitution by a Majority of 8/7.
The Supreme Court has released its judgment in the Supreme Court Practice and Procedure Act, 2023 case and has upheld the Act in general by majority. Five judges dissented with the majority of 10 and they declared the act as an attack on the independence of the judiciary. The rest of the judges who are in majority declared the Act intra vires the Constitution and upheld it in general. The only section which was declared ultra vires the Constitution by majority of 8 to 7 judges is sub-section 2 of section 5 of the Act, which gives retrospective affect to the Act. Justice Yahya Afridi has released his note but the other dissenting judges, Justice Ijaz ul Hassan, Justice Muneeb Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed have not not yet released their notes. In common law courts all over the world, all the judges issue their opinions at the same time. However, judges of Supreme Court of Pakistan have, in recent years, broken this tradition and issued individual opinions in a sporadic manner. This is an example of the same.
The majority held that the enactment is not an intrusion into the domain of the independence of the judiciary. Thus, the question of encroachment upon the judicial independence does not arise in the circumstances. The Court also ruled that granting right of appeal is a good practice worldwide. Islam also mandates that a right of appeal should be provided to an aggrieved party/person. As neither our Constitution nor our laws can go beyond the scope of Sharia Law, the Act also conforms the Islamic law. The Court held that Enforcement of the Shariat Act, 1991, mandates that the court must adopt an interpretation which is close to Islamic Injunctions when two interpretations are possible. The Act which grants right of appeal can also be upheld on this ground that it conforms the Islamic Law.
The Court did not refer to other contentions of the counsels when they found the legislative competence to be legal to enact the Act. The Court said that the Parliament was competent to enact the Act and thus other objections to the Act do not need to be addressed. The majority dismissed the Petitions.
const.p.6_2023
