Justice Shah suggests deferring all cases until SC law case is decided

Supreme Court judge Justice Mansoor Ali Shah on Saturday suggested to the Chief Justice of Pakistan (CJP), Umar Ata Bandial that all cases falling under Article 184(3) of the Constitution should be deferred until a ruling is made on the Supreme Court Practice and Procedure Act, 2023. While hearing a petition against the amendments made in the National Accountability Bureau (NAB) law, Justice Shah proposed in his two-page note that in situations of pressing urgency, such cases be heard by the full court to avoid an anomaly. “Even though we have been hearing this case since 19 July 2022 but after the 46th hearing of the case held on 16 March 2023, the Parliament enacted the Supreme Court (Practice and Procedure) Act 2023 (“Act”) on 21 April 20231 which, inter alia, requires under Section 3 that the Bench for hearing petitions under Article 184(3) of the Constitution is to be constituted by a Committee comprising of the Chief Justice of Pakistan and two next most senior judges of the court. Section 4 provides that any case involving the interpretation of constitutional provision is to be heard by a Bench comprising at least of five Judges,” Justice Shah wrote in his note, a copy of which is available with The Express Tribune. Read more: Justice Mansoor proposes full court for NAB amendment case He said that the next hearing in the case after the promulgation of the Act was scheduled to be held on May 16, 2023. “Before the said hearing, I apprised the Hon’ble Chief Justice of Pakistan of my reservations to continue with hearing the case by the present Bench (as expressed in this note). The case was therefore simply adjourned on that date. My understanding was that the present case would be taken up for further hearing only after the constitutionality of the Act is finally decided by this Court. However, this case has been fixed for hearing today, and there is no date of hearing fixed in the other case2 that will determine the constitutionality of the Act.” The SC judge stated that the act being a procedural law also applies to pending cases under Article 184(3) of the Constitution, including the present one. “I am aware that the operation of the Act has been suspended by an eight-member Bench of this Court. It is, however, clear that the suspension order of the eight-member Bench is an interim measure. If ultimately the Court upholds the constitutional validity of the Act, which is an equally possible outcome with that of the possible decision of its constitutional invalidity, the Act would take effect from the date of its enforcement, not from the date of decision of the Court. In case the Act is held to be valid, the decision of this Bench, which is not constituted as per the procedure prescribed and strength of Judges required under the Act, in the present matter, may arguably be coram non judice and thus a nullity in the eye of law,” the note stated. Justice Shah stated that in order to avoid an anomaly, he was of the view that the cases under Article 184(3) of the Constitution should not be heard till the case dealing with the constitutional validity of the Act is decided. He added that if some urgency requires that a case under Article 184(3) of the Constitution must be heard, it would be prudent and appropriate if it is heard by a full court bench. “I am of the opinion that until this Court decides the constitutionality of the Supreme Court (Practice and Procedure) Act 2023, Section 3 of which has prescribed the procedure for invoking original jurisdiction of this Court under Article 184(3) of the Constitution, all such matters under this jurisdiction must be heard by the Full Court Bench of this Court. I, therefore, made a request today to the Hon’ble Chief Justice of Pakistan on the Bench to constitute a Full Court Bench, for hearing the present case, which I hope his lordship would consider earnestly,” he concluded. The Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan had challenged the National Accountability (Second Amendment) Act 2022 passed by the Pakistan Muslim League-Nawaz (PML-N) led coalition government. Later, a report submitted by the graft buster to the apex court revealed that the NAB ordinance had ended up solving over 90 per cent of the cases, including high-profile ones, that it was dealing with. However, the PTI heavily criticised the PDM's decision to approve the amendments, denouncing it as an attempt to limit the graft buster’s authority. Further, in July of last year, the federal cabinet passed the National Accountability (Third Amendment) Bill for 2022. This bill further restricted NAB’s role in corruption cases involving amounts exceeding Rs500 million. Additionally, it rescinded the president's ability to appoint judges for the accountability court.

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