ISLAMABAD: Supreme Court (SC) in its detailed judgment on Supreme Court (Practice and Procedure Act), 2023 maintained that legislation has strengthened judiciary and created greater independence.

“Act does not in any manner violate Constitution, it does not undermine Supreme Court, nor does it compromise independence of judiciary. In effect it does very opposite in ensuring enforcement of fundamental rights, strengthening judiciary and creating greater independence therein,” says majority judgment, authored by Chief Justice of Pakistan Qazi Faez Isa and endorsed by nine other judges.

On October 11, SC by majority 10 is to 5 declared Supreme Court (Practice and Procedure Act 2023) as valid. Detailed judgment maintained, “Constitution empowers Parliament to legislate with regard to making practice and procedure of Supreme Court as it specifically stipulated in Article 191.

Parliament enacted Act which does not in any manner infringe any of fundamental rights, rather facilitates their enforcement. Act also grants an appeal to one who is aggrieved by decision of Supreme Court which is passed in exercise of original jurisdiction of Supreme Court under Article 184(3) of Constitution.

“A standard good worldwide practice and Injunctions of Islam, require that an appeal be provided and when two interpretations are possible, one that conforms to injunctions of Islam shall be adopted. “Article 175(2) of Constitution envisages conferment of jurisdiction. Larger Bench of Supreme Court has been conferred with this additional jurisdiction of appeal which fully accords with Constitution.”

Judgment noted, “We have very carefully considered each and every provision of Act and are of view that it has facilitated access to justice, instilled transparency, made realisation of fundamental rights more effective and Supreme Court more independent. Office of the Chief Justice has also been strengthened as there is an element of continuity when consultation takes place with two most senior judges. Measures taken in Act ensure judicial independence and Supreme Court has been made to better serve people, we endorse following definition of judicial independence.”

It further maintained that “Supreme Court comprises of Chief Justice and all judges of the Supreme Court. Constitution does not grant to Chief Justice’s power to decide cases unilaterally and arbitrarily. Chief Justice cannot substitute his wisdom with that of Constitution. Nor can Chief Justice’s opinion prevail over that of judges of Supreme Court. And, term ‘Master of Roster’ is not mentioned in Constitution, in any law or even in Rules, let alone stating therein that Chief Justice, is Master of Roster and empowered to act completely in his discretion”.

“Word master is offensive in constitutional dispensation founded on democracy. Master also connotes servitude, extreme form of which is slavery which is prohibited by Constitution. Islam establishes principle of equality, and Constitution does not permit transgressing injunctions of Islam, State religion of Pakistan.

Opening words of Constitution are most beautiful names of Creator, Ar-Rahman (most Beneficent) and Ar-Rahim (most Merciful). It proceeds by recognising that, “Sovereignty over entire universe belongs to Almighty Allah alone” and that exercise of authority is sacred trust,” SC further notes in its detailed judgment.

“Only servitude Constitution (and Islam) envisages is to Creator,” it adds. Judgment maintained, “Servitude also negates consultation. Holy Qur’an mandates, “Do that which is in agreement amongst people”.

Qur’anic exegetes are unanimous in interpretation of this verse and say that consultation is obligatory in respect of all matters pertaining to more than one person. Because: (a) no one should impose their will on others, (b) imposing one’s will on others either means that one does not give importance to others or that one deems oneself to be more intelligent, both of which are morally reprehensible and (c) deciding an issue that pertains to people is serious thing and one should fear Allah.

And following principles may be derived from said verse: (1) all requisite information be provided, (2) appointments should not be made on basis of fear or favour, (3) leaders should seek advice from advisors, (4) advisors must give their honest and well-considered opinion and (5) matters should preferably be resolved consensually, failing which through majority opinion.”

Published in The Daily National Courier, December, 28 2023

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