ISLAMABAD: Pakistan Muslim League-Quaid (PML-Q) has prayed to the apex court to dismiss the petitions against the Supreme Court (Practice and Procedure) Act, 2023, as it is constitutional law and will only serve to promote the independence of the judiciary, the rule of law, the right to access of justice and fair trial, as guaranteed under the constitution.
Advocate Zahid Ibrahim, on Monday, filed a concise statement on behalf of the PML-Q, submitting that the parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the constitution.
Zahid contended if the discretion for the exercise of suo moto jurisdiction, the responsibility of allocating work, and the constitution of benches is shared by the Chief Justice with the two of the senior-most judges of the Supreme Court, it will boost the public confidence in the judiciary and further strengthen the independence of the judiciary.
Every chief justice must give and to share the responsibility of allocation of work and constitution of benches in the Supreme Court with his two senior-most colleagues as provided in Section 2 of the Act, added the statement.
That Section 3 of the 2023 Act provides an in-built safety valve mechanism for the exercise of original jurisdiction under Article 184(3) of the Constitution.
This Court under the leadership of Chief Justice Iftikhar Chaudhry, Chief Justice Saqib Nisar, and Chief Justice Gulzar Ahmed has actively supported the exercise of the original jurisdiction of the court under Article 184 (3). Each of these chief justices’ legacies in many ways has been affected from the fallout, respectively from the Steel Mill’s Case, the Pakistan Kidney and Liver Institute (PKLI Hospital) Case, and the Nasla Tower Case. “Each has had a significant impact on their legacies, unfortunately not salutary,” he added.
He submitted that Section 3 of the 2023 Act does not abridge the power of exercising jurisdiction under Article 184 (3) by the Supreme Court, but only harnesses the unstructured discretion hitherto exercised by the chief justice alone by sharing it with his two senior-most colleagues.
The same is in the case of Section 2 of the 2023 Act, where the matters relating to the fixation of cases and the constitution of benches is entrusted to a committee rather than burdened on the shoulders of one individual. Lastly, Section 4 of the 2023 Act provides for expanding the jurisdiction of the Supreme Court and not in any manner curtailing it.
On the other hand, Khawaja Tariq Rahim, petitioner Raja Amir’s counsel submitted that the parliament through ordinary legislation cannot change the essence of Art 184 (3) of the constitution read with Order XXV of the Supreme Court Rules, 1980.
The Full Court in the last date had directed the counsels of the petitioners and the defence to file their concise statements by September 25. The Full Court is likely to resume the hearing from October 2.
He stated that the Supreme Court Rules have constitutional backing. They were made by the Full Court to ensure that the apex court works within a definite mandate and the overall fundamental objective enumerated in the objectives resolution that the independence of the judiciary is to be fully secured.
He submitted that Section 3 of the impugned Act has interfered with the scheme of the constitution and made the exercise of jurisdiction by the court under Art 184 (3) from a judicial function to an administrative function. This is neither permissible and lawful, nor constitutional. Section 3 curtails the power of the Supreme Court and that being so, falls foul of item No55 of the Federal Legislative List.
The impugned act has obviously been passed in haste, without there being any meaningful discussion. It may be noted that the impugned law does not enlarge but is an attempt to create a new appellate jurisdiction, which has no Constitutional basis, sanction or authorization.
The law attempts to convert the review jurisdiction under Art 88 subject to the appellate jurisdiction. This can only be done through a Constitution amendment, he submitted.
Copyright Business Recorder, 2023
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