SC law challenged: Federation urges apex court to dismiss petition

ISLAMABAD: The federation has prayed to the Supreme Court to dismiss the petition challenging the Supreme Court (Practice and Procedure) Act, 2023.

Additional Attorney General (AAG) for Pakistan, Aamir Rehman on Saturday filed the federation’s response in pursuance of the Supreme Court’s direction. The chief justice on May 2 had directed the federation and all the political parties to submit replies on the petition, filed by Ghulam Mohiuddin.

An eight-member bench, headed by Chief Justice, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hassan Azhar Rizvi, and Justice Shahid Waheed will take up the petition tomorrow (May 8).

The AAG submitted that the petition is clearly an attempt to prevent the advancement of justice, independence of judiciary and availing of remedy by persons aggrieved of any judgment and/or order of the apex court under Article 184(3) of the Constitution.

The reply maintained that Section 2 of the Act regulates the power to constitute benches of the Supreme Court in every cause, appeal or matter. In terms of Section 2m the power to constitute benches, which is vested in the chief justice of Pakistan under the Supreme Court Rules, 1980 is to be exercised by a committee comprising the CJP and the two next senior-most judges of the Court.

It stated that the SC Rules itself, and rightly so given the mandate of Article 191 of the Constitution, subjects the powers of the chief justice to constitute a bench to the law.

Therefore, there is no bar that prevents the Parliament from legislating on the matter contained in the Act. The Rules themselves are subservient to any law relating to the constitution of the benches.

The reply further stated that the concept of Master of Roster, has no statutory backing but is a term generally applied and understood in the context of the provisions of the SC Rules. It said that the Supreme Court has itself, noted in he judgment rendered in SMC 4 of 2021 reported as PLD 2022 SC 306 that the constitution of benches by the chief justice in suo motu matters is problematic.

The reply pointed out that these provisions, which only regulate the practice and procedure of the Court and are within the legislative competence of the Parliament, do not offend any constitutional provision, principles laid down by the Court or the independence of the judiciary. All provisions of the Act, if anything, will further enhance the confidence and trust of the public in the Court.

He submitted that the Act provides a right of appeal against orders passed under Article 184(3) of the constitution by the Court.

The original jurisdiction of the Court, both on a petition or suo motu, is peculiar in nature as nomenclature dictates, it is a jurisdiction purely originates from the court not having come from an appeal from a subordinate court.

It is due to this very unique nature of this jurisdiction the court, therefore, acts as the court of first and the last resort, taking a more than often inquisitorial and fact-finding approach. The presently available remedy of review under Article 188 of the constitution cannot hear matters involving interpretation of the constitution.

Amir Rehman stated that these provisions of the Act in fact enforce the principles on structuring the exercise of administrative powers laid down by the Court, insofar as the practice and procedure of the Court. The Act in its essence does not seek in any manner, violate the provisions of Article 191 of the constitution.

Copyright Business Recorder, 2023