Justice S. Hasan Azhar Rizvi’s Opinion in The Supreme Court Practice and Procedure Act,2023, Case.

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Justice Syed Hasan Azhar Rizvi’s Opinion in The Supreme Court Practice and Procedure Act,2023, Case.

Justice Syed Hasan Azhar Rizvi has concurred with majority opinion in the case in hand and upheld the constitutionality of the Act except section 5 (2) of the Act which provides right of appeal under section 5 (1) retrospectively. He has held that the provision of the right to appeal retrospectively will not only reopen the past and closed transactions but it might affect those to whom rights have been accrued under the already decided cases by this Court in the original jurisdiction. The effect of the provision of the right of appeal retrospectively might be manifold.

He further held that no doubt the Parliament is competent to give retrospective effect to an enactment as power to make laws includes power to give respective effect, but this act shall be done in a judicious and careful manner without offending other provisions of the Constitution. The competence of the Parliament to legislate is not sufficient toย  make a law valid and legally enforceable but it should also pass the test of constitutionality. Hence, the foreseeable possible consequences of the retrospective effect in this case might be more negative and harmful instead of positive and advantageous. It offends other provisions of the Constitution notably Articles, 9, 10, 10-A, 24 & 25. Thus, sub-section 2 of section 5 of the Act was declaredย ultra viresย the Constitution.

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