2023 SCP 399, PLJ 2024 SC 114

Raja Amer Khan and others vs Federation of Pakistan through the Secretary, Law and Justice Division, Ministry of Law and Justice, Islamabad and others

Citation2023 SCP 399, PLJ 2024 SC 114

CourtSupreme Court of Pakistan

Judge(s)Ijaz-ul-Ahsan, Amin-Ud-Din Khan, Ayesha A. Malik, Shahid Waheed, Syed

ResultPetition Dismissed

Qazi Faez Isa, CJ. These petitions, which were filed directly under Article 184(3) of the Constitution of the Islamic Republic of Pakistan ('the Constitution'), were disposed of on 11 October 2023, as under: 'For reasons to be recorded later these petitions are decided as under:

1. Subject to paras 2 and 3 below, by a majority of 10 to 5 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) the Supreme Court (Practice and Procedure) Act, 2023 ('the Act') is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan ('the Constitution') and to this extent the petitions are dismissed.

2. By a majority of 9 to 6 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) sub-section (1) of section 5 of the Act (granting a right of appeal prospectively) is declared to be in accordance with the Constitution and to this extent the petitions are dismissed.

3. By a majority of 8 to 7 (Chief Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Athar Minallah and Justice Musarrat Hilali dissenting) sub-section (2) of section 5 of the Act (granting a right of appeal retrospectively) is declared to be ultra vires the Constitution and to this extent the petitions are allowed.

2. Constitution Petition Nos. 6 to 8 of 2023 were filed when a bill was presented in the National Assembly, titled Supreme Court (Practice and Procedure) Bill, 2023 ('the Bill'). A smaller Bench of this Court^[1] had heard these and other connected petitions and passed order dated 13 April 2023, which concluded as under: '14. This brings us to the question whether it would be appropriate to make any interim order in relation to the present matter. In Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 the Full Court (17 member Bench) observed (at para 164, pg. 451) that "ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc...." (emphasis supplied). In our view, the facts and circumstances presented here are extraordinary both in import and effect. Prima facie the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this Court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision. Such intermeddling in the functioning of the Court, even on the most tentative assessme nt, will commence as soon as the Bill becomes the Act.

Accordingly, in our view an interim measure ought to be put in place, in the nature of an anticipatory injunction. The making of such an injunction, to prevent imminent apprehended danger that is irreparable, is an appropriate remedy, recognized in our jurisprudence and other jurisdictions that follow the same legal principles and laws. It is therefore hereby directed and ordered as follows. The moment that the Bill receives the assent of the President or (as the case may be) it is deemed that such assent has been given, then from that very moment onwards and till further orders, the Act that comes into being shall not have, take or be given any effect nor be acted upon in any manner.

15. Notices be issued to the respondents in all three petitions. Notice also to the Attorney General for Pakistan under O. 27A CPC. Notices also to the Supreme Court Bar Association through its President and the Pakistan Bar Council through its Vice Chairman. Notices also be issued to the following political parties who may, if they so desire, appear through duly instructed counsel: Pakistan Muslim League (N) (PML (N)), Pakistan People's Party Parliamentarians (PPPP), Pakistan Tehreek e Insaf (PTI), Jamiat Ulema e Islam (JUI), Jamaat e Islami (JI), Awami National Party (ANP), Muttahida Qaumi Movement (MQM), Balochistan Awami Party (BAP) and Pakistan Muslim League (Q) (PML (Q)).

16. To come up on 02.05.2023 at 11:30 a.m.'

3. Subsequently, the Bill became law on 21 April 2023, that is, the Supreme Court (Practice and Procedure) Act, 2023^[2]('the Act'). On 2 May 2023 it was ordered that the aforesaid, `injunction continues and shall continue to be in force against the Act till further orders.' Hearing took place on 8 May 2023, 1 June 2023 and 8 June 2023, and on 8 June 2023 it was ordered that these cases be listed for hearing in July 2023. However, the petitions were not fixed in July nor in August 2023.

4. The Bench which had earlier heard these petitions was headed by the former Chief Justice of Pakistan, Justice Umar Ata Bandial, who retired on 16 September 2023. The senior most Judge of the Supreme Court^[3] took oath as Chief Justice of Pakistan on Sunday, 17 September 2023. A number of applications were filed^[4] requesting that a Full Court be constituted to hear the petitions. On Monday, 18 September 2023 the Chief Justice and all other Judges of the Supreme Court^[5] proceeded to hear the petitions, and passed the following order on this first date of hearing: `2. The Chief Justice stated that in view of the challenge thrown to the Supreme Court (Practice & Procedure) Act, 2023 and as the matter is pending adjudication he will be consulting with his two senior colleagues, namely, Justice Sardar Tariq Masood and Justice Ijaz ul Ahsan with regard to the constitution of Benches and fixation of cases to which both of them have agreed.'

5. The language of the Bill and the Act is identical. The Act is reproduced hereunder: `THE SUPREME COURT (PRACTICE AND PROCEDURE) ACT, 2023 Act No. XVII of 2023 21st April, 2023 An Act to provide for certain practices and procedures of the Supreme Court.

WHEREAS Article 191 of the Constitution provides that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Supreme Court; AND WHEREAS Article 10A, of the Constitution mandated right to fair trial and due process, Article 4 of the Constitution guarantees treatment in accordance with law, Articles 25 of the Constitution prohibits discriminatory treatment and right of appeal is a universal fundamental principle of jurisprudence and Islam guarantees right of appeal, therefore, pursuant of Article 175(2) read with Article 191 of the Constitution this law is being enacted; AND WHEREAS it is expedient to make a law providing for certain practices and procedures of the Supreme Court.

It is hereby enacted as follows:-

1. Short title and commencement.--(1) This Act shall be called the Supreme Court (Practice and Procedure) Act, 2023.

(2) It shall come into force at once.

2. Constitution of Benches.--(1) Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a Bench constituted by the Committee comprising the Chief Justice of Pakistan and two next most senior Judges, in order of seniority.

(2) Soon after commencement of this Act, the Committee constituted under sub-section (1) shall hold its first meeting to determine its procedure, including for holding meetings and constitution of Benches etc.: Provided that, till such time the procedure is determined under this sub-section, the meeting of the Committee for the purposes of sub-section (1) shall be convened by the Chief Justice or other two members of the Committee, as the case may be.

(3) The decisions of the Committee shall be by majority.

3. Exercise of original jurisdiction by the Supreme Court.-- Any matter invoking exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the Committee constituted under section 2 for examination and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter.

4. Interpretation of the Constitution.--In the matters where interpretation of the constitutional provision is involved, Committee shall constitute a Bench comprising not less than five Judges of the Supreme Court.

5. Appeal.--(1) An appeal shall lie within thirty days from an order of a Bench exercising jurisdiction under clause (3) of Article 184 of the Constitution to a larger Bench of the Supreme Court and such appeal shall, within a period not exceeding fourteen days, be fixed for hearing.

(2) The right of appeal under sub-section (1) shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act: Provided that the appeal under this sub-section shall be filed within thirty days of the commencement of this Act.

6. Right to appoint counsel of choice.--For filing a review application under Article 188 of the Constitution, a party shall have the right to appoint counsel of its choice.

Explanation: For the purpose of this section, counsel shall mean an Advocate of the Supreme Court.

7. Application for fixation of urgent matters.--An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within fourteen days from the date of its filing.

8. Act to override other laws etc.--The provisions of this Act shall have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any Court including the Supreme Court and a High Court.

6. The learned counsel representing the petitioners, and those representing themselves, submitted that:

(i) The Act had seriously undermined the independence of the judiciary;

(ii) Article 142(a) empowered the Parliament to make laws with respect to any matter in the Federal Legislative List in the Fourth Schedule to the Constitution, which did not empower Parliament to enact the Act;

(iii) None of the entries in the Federal Legislative List enable Parliament to make any law pertaining to the practice and procedure of the Supreme Court;

(iv) The power to enact the practice and procedure of the Supreme Court lay within the exclusive domain of the Supreme Court's rule making powers stipulated in Article 191 of the Constitution;

(v) In addition to the Act enacting the practice and procedure it also provided for an appeal under Article 184(3) of the Constitution, which was neither a matter of practice nor of procedure;

(vi) Whenever the Constitution provides for an appeal or vests appellate/review jurisdiction it is mentioned in the Constitution, as in: Article 63A(5) (against a decision of Election Commission), 185 (appellate jurisdiction), 188 (review jurisdiction), 203F (appeal against the decision of Federal Shariat Court) and 212(3) (appeal against decision of Administrative Court or Tribunal);

(vii) The Act contravenes Article 4 of the Constitution which mandates that individual rights are to be dealt with in accordance with law;

(viii) The Act violates the Fundamental Rights prescribed in Articles 4, 9, 10 and 10A of the Constitution;

(ix) The Act contravenes Article 175(2) of the Constitution therefore Parliament could not enact it;

(x) The Act micro manages the affairs of the Supreme Court and thus undermines the independence of the judiciary;

(xi) The Act effectively abolishes the powers hitherto before vesting in the Chief Justice of Pakistan, which adversely effects the independence of the judiciary; and

(xii) It is long established practice/convention that the Chief Justice of Pakistan is the Master of the Roster and the Committee constituted under section 2 of the Act, which includes the next two senior Judges, with regard to fixation of cases has rendered ineffective the Master of the Roster.

The learned Mr. Adnan Khan, who represents the petitioner in CP No. 33/2023, states that the petitioner does not challenge the Act to the extent it allows a change of counsel when a review petition is filed.

7. Notices had been issued to political parties. The learned Mr. Zahid Ebrahim represented the Pakistan Muslim League-Quaid (`PML-Q'), and filed a concise statement^[6] supporting the Act and submitted that:

(i) Parliament has the right to legislate matters pertaining to the practice and procedure of the Supreme Court under Article 191 of the Constitution, reproduced hereunder: `Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.'

(ii) Consolidation of power in the hands of one fallible individual, as opposed to three, under section 2(1) of the Act, undermines the independence of the judiciary and the rule of law and the enforcement of Fundamental Rights of fair trial and due process as provided in Article 10A of the Constitution;

(iii) The Act harnesses the unstructured discretion hitherto before exercised by Chief Justices in exercising jurisdiction under Article 184(3) of the Constitution, and particularly when the pre- requisites thereof - question of public importance with reference to the enforcement of any of the Fundamental Rights - were disregarded;

(iv) Section 4 of the Act which mandates that a minimum of five Judges of the Supreme Court shall hear cases requiring interpretation of the Constitution lends greater legitimacy and credibility to the decisions of the Supreme Court;

(v) If by a decision of the Supreme Court in the exercise of jurisdiction under Article 184(3) of the Constitution a person is aggrieved, section 5 of the Act grants an appeal to an aggrieved person against whom an order has been made to a larger Bench of the Supreme Court, which adheres to Article 10A of the Constitution and to the basic concepts of justice the world over, and to the injunctions of Islam;

(vi) To seek the review of a judgment of the Supreme Court is a right granted by the Constitution in Article 188, which does not restrict its filing by the same counsel, which restriction the Supreme Court Rules, 1980 ('the Rules') had imposed and section 6 of the Act redresses this and brings the Rules to conform to the Constitution;

(vii) To have an application pleading urgency fixed within fourteen days, which is what section 7 of the Act prescribes, accords with the principles of good administration of justice; and

(viii) Parliament was constitutionally competent to enact the Act in exercise of its constitutional power under Article 142(a) of the Constitution read with entries 55 and 58 and Article 191 of the Constitution.

8. The Pakistan Muslim League-Nawaz ('PML-N') was represented by the learned Mr. Salahuddin Ahmed who adopted the submissions of learned Mr. Zahid Ebrahim and added that:

(i) The Act neither challenges nor undermines the authority or power of the Supreme Court, instead it confirms and strengthens it;

(ii) The Act checks/controls the arbitrary powers exercised by Chief Justices which now better adheres to Article 176 of the Constitution which prescribes that the Chief Justice alone does not constitute the Supreme Court, but that it consists of the Chief Justice... and so many other Judges as may be determined by Act of Parliament; and

(iii) The Constitution in Article 67 does not permit law to regulate the practice/procedure but specifically permits laws to be made with regard to practice and procedure of the Supreme Court in Article 191 of the Constitution, just as Article 202 of the Constitution permits the practice and procedure of a High Court to be regulated by law.

9. The Muttahida Qaumi Movement (`MQM') was represented by the learned Mr. Faisal Siddiqui, who while adopting the submissions of learned Messrs Ibrahim and Ahmed elaborated thereon most skillfully and comprehensively. He added that Order XI of the Rules specifically recognizes that the constitution of Benches may be regulated by law.

10. The learned Attorney-General for Pakistan ('AG') filed concise statements^[7] on behalf of the Federation of Pakistan and in addition to reiterating the submissions of learned Messrs Zahid Ebrahim, Salahuddin Ahmed and Faisal Siddiqui, stated that:

(i) The petitions filed under Article 184(3) of the Constitution, challenging the Bill/Act, are not maintainable because they are not in respect of a question of public importance with reference to the enforcement of any of the Fundamental Rights;

(ii) The Master of the Roster concept is alien to the Constitution, and if it is considered to be a convention it cannot prevail over the text of the Constitution;

(iii) Article 8(1) of the Constitution only recognizes (and endorses) abiding by any law or any custom or usage having the force of law, and conventions are not included therein;

(iv) The Supreme Court has complete power to interpret laws, and its decisions are binding on all other courts in Pakistan as per Article 189, but it cannot undermine Parliament's power to legislate, unless the law made by Parliament is unconstitutional or violates any of the Fundamental Rights which is not the case in enacting the Act;

(v) Jurisdiction is conferred on courts by the Constitution or by or under any law, as stipulated under Article 175(2) of the Constitution, therefore, if Parliament grants a right of appeal by section 5 of the Act against judgments of the Supreme Court passed under Article 184(3), it is in conformity with the Constitution; and

(vi) Granting a right of appeal to a larger Bench of the Supreme Court does not diminish or impair the power, authority or jurisdiction of the Supreme Court.

11. The Jamaat-e-Ulema Islam ('JUI-F') represented by the learned Mr. Kamran Murtaza endorsed the Act and stated that it accords fully with the Constitution and adopted the submissions made by learned Messrs Zahid Ebrahim, Salahuddin Ahmed, Faisal Siddiqui and the AG.

12. The Pakistan Bar Council had filed an application^[8] seeking constitution of a full court and placed on record a number of press releases issued by it expressing concerns regarding the conduct and demeanour of some Judges who appeared not to have come across as being neutral and impartial, and that Judges should not be perceived as favouring any political party.

The representatives of the Pakistan Bar Council stated that the Act was in accordance with the Constitution, and unless an act of Parliament is demonstrably unconstitutional it should not be interfered with.

13. The learned counsel for both sides also referred to a very large number of precedents which for the sake of brevity are not mentioned, however, quite a few find mention hereunder.

14. These petitions were filed under Article 184(3) of the Constitution, which stipulates that, `The Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article. 'The referred to said Article is Article 199 of the Constitution.

15. The first petition (CP No. 6 of 2023) was filed by two Lahore-based lawyers who were represented by learned Messrs Khawaja Ahmad Tariq Rahim and Imtiaz Rashid Siddiqui. The Office of the Supreme Court had noted five legal objections on the filing of the petition in the Supreme Court, the first two of which are reproduced hereunder: `a. That the petitioners have not pointed out as to what questions of public importance in the instant case are involved with reference to enforcement of any of the Fundamental Rights guaranteed under the Constitution, so as to directly invoke jurisdiction of the Supreme Court under Article 184(3) of the Constitution.' `b. That ingredients for invoking extra ordinary jurisdiction of this Court under Article 184(3) of the Constitution have not been satisfied.'

An eight-member Bench of this Court proceeded to hear these petitions, but did not attend to the office objections, nor whether the petitions were maintainable under Article 184(3) of the Constitution. Another three petitions (Constitutional Petitions No. 10 to 12 of 2023) were filed, seeking the same relief, and when all six petitions came up for hearing on 2 May 2023, it was ordered `That injunction continues and shall continue to be enforced against the Act till further orders'.

16. On 21 April 2023 the Bill became the Act. Section 2(1) of the Act requires that cases be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and two most senior judges, in order of seniority, however, this provision was disregarded.

17. The Act comprises of only eight sections as under: Section 1 states its name and that it shall come into force at once.

Section 2 constitutes a Committee comprising of the Chief Justice of Pakistan and two next most senior Judges ('the Committee') which shall decide by majority the constitution of Benches for hearing of cases.

Section 3 stipulates that when the original Jurisdiction of the Supreme Court, under Article 184(3) of the Constitution, is involved the Committee will first ascertain if it is a matter of public importance requiring enforcement of Fundamental Rights.

Section 4 stipulates that wherever the interpretation of a constitutional provision is involved the case shall be heard by not less than five judges of the Supreme Court.

Section 5 provides an appeal to a person aggrieved by the Supreme Court's decision under Article 184(3).

Section 6 provides the party the right to appoint counsel of its choice when seeking review under Article 188 of the Constitution, of a decision.

Section 7 requires that urgent applications shall be fixed for hearing within fourteen days from the date of its filing.

Section 8 is in the nature of a non obstante clause.

18. There appears to be nothing unconstitutional, illegal or objectionable in the Act on a plain reading of these provisions. The matter could have been decided in the first hearing. However, on the very first day of hearing stay was granted, while the proposed law was at the bill stage, and thereafter the stay was extended. The learned counsel spent many hours propositioning that the independence of the Judiciary had come under imminent collapse, and that the constitutional structure as it exists would develop fissures and furthermore the position of the Chief Justice as the Master of the Roster would become redundant. The matter was heard by us at great length.

Therefore, let us begin by examining the scheme of the Constitution with regard to the Judicature and its jurisdiction.

19. The Constitution establishes the Judicature.^[9] It stipulates that, 'No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.'^[10] The Constitution does not bestow unlimited jurisdiction on the Supreme Court, let alone on its Chief Justice. The Constitution confers the following jurisdictions on the Supreme Court: (1) original jurisdiction,^[11] (2) appellate jurisdiction,^[12] (3) advisory jurisdiction,^[13] (4) power to transfer cases jurisdiction,^[14] (5) review jurisdiction,^[15] (6) contempt jurisdiction^[16] and (7) appellate jurisdiction with regard to decisions of administrative courts and tribunals.^[17] The Judiciary has the responsibility to decide cases in accordance with the Constitution and the law,^[18] by applying due process and providing a fair trial^[19]. Every Judge before entering office is required to take an oath which also provides that: `I will discharge my duties, and perform my functions, honestly, to the best of my ability, faithfully in accordance with the Constitution of the Islamic Republic of Pakistan and the law' (emphasis added), and also swears an oath to 'preserve, protect and defend the Constitution'.

20. The Supreme Court comprises of the Chief Justice and all the Judges of the Supreme Court. The Constitution does not grant to the Chief Justice power to decide cases unilaterally and arbitrarily.

The Chief Justice cannot substitute his wisdom with that of the Constitution. Nor can the Chief Justice's opinion prevail over that of the Judges of the Supreme Court. And, the term 'Master of the Roster' is not mentioned in the Constitution, in any law or even in the Rules, let alone stating therein that the Chief Justice, is the Master of the Roster and empowered to act completely in his discretion.

21. The word master is offensive in a constitutional dispensation founded on democracy. Master also connotes servitude, the extreme form of which is slavery which is prohibited by the Constitution.^[20] Islam establishes the principle of equality, and the Constitution does not permit transgressing the Injunctions of Islam,^[21] the State religion of Pakistan.^[22] The opening words of the Constitution are the most beautiful names of the Creator, Ar-Rahman (the most Beneficent) and Ar-Rahim (the most Merciful). It proceeds by recognising that, 'sovereignty over the entire Universe belongs to Almighty Allah alone' and that the exercise of authority is a sacred trust.^[23] The only servitude the Constitution (and Islam) envisages is to the Creator.

22. Servitude also negates consultation. The Holy Qur'an mandates, 'Do that which is in agreement amongst the people'.^[24] Qur'anic exegetes^[25] are unanimous in the 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 the people is a serious thing and one should fear Allah. And the following principles may be derived from the said verse: (1) all requisite information be provided, (2) appointments should not be made on the 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.

23. History stands witness to the fact that when power is concentrated in an individual, disastrous consequences invariably follow. Irreparable damage is caused to the Judiciary and to the people of Pakistan when the legitimacy, integrity and credibility of the Judiciary is undermined. If the people lose their trust in the Judiciary, it will render decisions made by it mere words on paper, without credibility and moral authority. The surest way for this to happen is when cases are not decided in accordance with the Constitution.

24. On behalf of the petitioners it was contended that to discard the Master of the Roster concept would negate stare decisis (Latin for 'to stand by things decided'), a concept that requires judicial precedents be followed. The House of Lords of the United Kingdom summed up the principle of stare decisis thus: '... a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries'

"Under these circumstances it appears to me that your Lordships would do well to act upon that which has been universally assumed in the profession, so far as I know, to be the principle, namely, that a decision of this House upon a question of law is conclusive, and that nothing but an Act of Parliament can set right that which is alleged to be wrong in a judgment of this House.'^[26] However, even the originators of the principle of stare decisis, in the country without a written constitution, maintained that an Act of Parliament would prevail over a decision of the House of Lords. However, Pakistan has a written Constitution and the Constitution stipulates that the decisions of the Supreme Court are binding on all other courts,^[27] but not on the Supreme Court itself, however, decisions of larger Benches prevail over those of smaller ones.

25. A Practice Statement was issued by the House of Lords, on behalf of all the Judges, justifying deviation from past precedent when the interest of justice requires it: 'Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating formal decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.'^[28]

26. It was also contended on behalf of the petitioners that the Master of the Roster is an established convention and has to be given effect to. Therefore, we should first understand what constitutes legal conventions in the land of their birth, that is, in England. A. V. Dicey in the Law of the Constitution^[29]made a distinction between laws and conventions and their enforceability and unenforceability by the courts. And, O. Hood Philips in his Constitutional and Administrative Law explained that 'conventions' 'refers to rules of political practice which are regarded as binding by those whom they concern especially the sovereign and statesmen - but which would not be enforced by the courts if the matter came before them'. In the United Kingdom, conventions are not judicially enforceable. Geoffrey Marshall in his The Theory of Convention since Dicey^[30] says, that the separation of law and conventions distinction by Dicey 'is clear enough and worth maintaining'. Colin R Munro in Laws and Conventions Distinguished^[31] stated that, 'The validity of conventions cannot be the subject of proceedings in a court of law. Reparation for breach of such rules will not be effected by any legal sanction. There are no cases which contradict these propositions. In fact, the idea of a court enforcing a mere convention is so strange that the question hardly arises.'

27. The Privy Council of England held that conventions cannot be given effect to by a court of law because they are considerations of policy and propriety, they are not legal restrictions which a court of law, interpreting the relevant provisions of the Constitution, can import into the written document and make it his legal duty to observe'.^[32] In Canada, a commonwealth country, it was observed that there is 'no instance of an explicit recognition of a convention as having matured into a rule of law'.^[33] The Court further held that conventions are not enforced by the courts and if there is a conflict between conventions and law, the courts must enforce the law. The very nature of a convention, as political in inception and as depending on a persistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement'.

28. Significantly Article 8(1) of the Constitution states, any law or any custom or usage having the force of law' (emphasis added). It does not state that custom and usage has the force of law. A custom or usage having the force of law is section 5 of the Punjab Laws Act, 1972, which provides that in any question regarding succession 'the rule of administration shall be any custom applicable to the parties concerned' and its section 7 states that 'all local customs and mercantile usages shall be regarded as valid unless they are contrary to justice, equity or good conscience.'

The Customs and usages mentioned in the Punjab Laws Act, 1972 had the force of law, because the law stated so, and not because on its own it had the force of law.

29. The Supreme Court in Federation of Pakistan v United Sugar Mills Limited^[34] held that law is 'a formal pronouncement of the will of a competent lawgiver and did not include what are mere legal percepts and theories'. One may however add that many British constitutional conventions are incorporated into the Constitution and these the courts are bound to recognize and enforce because they are part of the Constitution, and not because they are conventions.

30. We are aware that conventions have in a few cases been given extraordinary importance, which phenomena is best explained by Justice Fazal Karim in his essential reading book Judicial Review of Public Actions thus:^[35] 'Al-Jehad Trust case (PLD 1996 SC 324) and Malik Asad Ali^[36] case were the product of a period of unfortunate tension between the political organs and the judicial organ of the State of Pakistan.

That period evokes painful memories, and it is better to forget it. Even the Judges of the Supreme Court could not remain unaffected so much so that at the time of Malik Asad Ali case, the Supreme Court itself was a divided house. In such a polarized setting the venerable principle of the comity of Judges is naturally the major casualty. In our humble opinion therefore the decisions in those cases should be confined to them only.'

31. We take heed from the wise words of Justice Fazal Karim. The Constitution has erected the legislature and the judicture and sets out their respective jurisdictions, boundaries and powers, which each must respect. In Jackson v Her Majesty's Attorney General^[37], the House of Lords observed that, 'the delicate balance between the various institutions whose sound and lasting quality Dicey in his "The Law of the Constitution", likened to the work of bees when construing a honeycomb is maintained to a larger degree by the mutual respect which each institution has for the other.' Mutual respect requires that the Supreme Court should not substitute its own opinion for that of Parliament, no matter how correct it considers it to be. Interventions should be restricted to only when Parliament enacts legislation which is demonstrably unconstitutional. In respect of the Act this has not been demonstrated.

32. We have very carefully considered each and every provision of the Act, and are of the view that it has facilitated access to justice, instilled transparency, made the realization of Fundamental Rights more effective, and the Supreme Court more independent. The office of the Chief Justice has also been strengthened as there is an element of continuity when consultation takes place with the two most senior Judges. The measures taken in the Act ensure judicial independence, and the Supreme Court has been made to better serve the people; we endorse the following definition of judicial independence: Judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial towards the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behavior, enact neutral' justice, and determine significant constitutional and legal values.'^[38]

33. The Constitution empowers Parliament to legislate with regard to making the practice and procedure of the Supreme Court as it specifically stipulated in Article 191. Parliament enacted the Act which does not in any manner infringe any of the Fundamental Rights, rather facilitates their enforcement. The Act also grants an appeal to one who is aggrieved by a decision of the Supreme Court which is passed in exercise of the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution. A standard good worldwide practice and the Injunctions of Islam,^[39] require that an appeal be provided and when two interpretations are possible, the one that conforms with the Injunctions of Islam shall be adopted.^[40] Article 175(2) of the Constitution envisages the conferment of jurisdiction. A larger Bench of the Supreme Court has been conferred with this additional jurisdiction of appeal which fully accords with the Constitution. The Act does not in any manner violate the Constitution, it does not undermine the Supreme Court, nor does it compromise the independence of the judiciary. In effect it does the very opposite in ensuring the enforcement of Fundamental Rights, strengthening the Judiciary and creating greater independence therein.

34. Having found the Act to be fully compliant with the Constitution there is no need to consider the other points raised by the petitioners because the same will have no bearing on the outcome, and this Court does not generally dilate upon academic propositions.

35. Therefore, for the aforesaid reasons these petitions are dismissed and the constitutionality of the Act is upheld.

Qazi Faez Isa, CJ Sardar Tariq Masood, J Ijaz ul Ahsan, J Syed Mansoor Ali Shah, J Munib Akhtar, J Yahya Afridi, J Amin-ud-Din Khan, J Sayyed Mazahar Ali Akbar Naqvi, J Jamal Khan Mandokhail, J Muhammad Ali Mazhar, J Ayesha A. Malik, J Athar Minallah, J Syed Hasan Azhar Rizvi, J Shahid Waheed, J Musarrat Hilali, J Yahya Afridi, J.- A Full Court was constituted by the worthy Chief Justice of the Supreme Court of Pakistan ("the Chief Justice") to decide the petitions filed in the original jurisdiction of this Court, challenging the vires of the Supreme Court (Practice and Procedure) Act, 2023 ("the Act"). After considering the submissions of the learned counsel for the parties and the major political parties put on notice, this Court announced its short order on 11 October, 2023. The order reads: "ORDER OF THE COURT For reasons to be recorded later these petitions are decided as under:

As stated above, except for section 5 of the Act, I was part of the majority that upheld the constitutional validity of the Act. Herein, I propose to record the reasons for upholding the constitutional validity of the Act, except section 5 thereof, which provides for a right of appeal.

Scope of a Full Court

2. To my mind, the members of a Full Court are not to be shackled by precedents. No doubt, we are to draw wisdom from the decisions already rendered, but in no way are we bound by the principle of staredecisis. And to do so, would defeat the very purpose of convening a Full Court to hear and decide a matter.

Preliminary Objection

3. To start with, I would address the preliminary objection raised by the learned Attorney General of Pakistan regarding the maintainability of the present petitions. The thrust of the objection was that the conditions precedent for invoking the original jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan ("the Constitution"), were not met, and in particular that, neither was there any violation of the fundamental rights nor was there any issue of public importance raised in the petitions challenging the vires of the Act.

4. To appreciate the preliminary objection raised, it would be useful to carefully read Article 184(3) of the Constitution, which reads: "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

(emphasis provided)

5. As the above Article clearly provides, the two essential conditions precedent required for invoking the original jurisdiction of this Court under Article 184(3) of the Constitution are that: Firstly, the matter raised in the petition should relate to a matter of public importance; and secondly, that the said matter relates to the enforcement of any of the fundamental rights provided under the Constitution.

6. I find that, in essence, the petitioners through these petitions seek to preserve and protect the independence of the judiciary, which undoubtedly, is beyond the realm of their private or individual concerns, and most certainly covers a more general or wider sphere, spanning the entire society and affecting the public at large. Thus, the present petitions do relate to an issue of 'public importance', and the objection to the maintainability to the extent of the first limb is repelled.

7. The second limb of the objection to the maintainability of the petitions was that the Act had not violated any of the fundamental rights provided under the Constitution. I am afraid, this objection of the learned Attorney General is rather miscued. To start with, one must appreciate, the use of the words 'with reference to', widens the scope of justiciability, and then to follow it with the word 'enforcement', the legislative intent is clear to further expand the extent of jurisdiction. To my mind, the word 'enforcement' is not synonymous to the word 'infringement', in fact, both words are distinct, each having its own meaning and connotation; the word 'enforcement' is more inclusive, and includes both, the acts or omissions that would actually infringe, or that would bolster fundamental rights.

8. Thus, the challenge made to the maintainability of the present petitions on the ground that there was no infringement of a fundamental right is misplaced. The scope of taking cognizance of matter by the Supreme Court in its original jurisdiction under Article 184(3) is much wider and can also be invoked, even if there is no infringement of any fundamental right, but what is essential is that the matter raised in the challenge before the Court relates to ensuring that the fundamental rights of the citizens and/or persons, provided under the Constitution, are effectively exercised.

9. Given this aspect of the jurisdiction that can be invoked under Article 184(3) of the Constitution, the present petitions, to my understanding, fulfill both the conditions precedent for invoking the original jurisdiction of the Supreme Court. Accordingly, the preliminary objection raised by the learned Attorney General of Pakistan is repelled, and the petitions are in my opinion maintainable under Article 184(3) of the Constitution.

Issues for determination

10. For the convenience of discussion, I have divided my opinion into three parts: firstly, the constitutional validity of the Act, in general; secondly, my comments on section 2 of the Act; and finally, the legislative competence of the Parliament to provide a right of appeal under section 5 of the Act.

Issue No. I - Constitutional validity of the Act

11. The challenge to the constitutional validity of the Act was essentially premised on two contentions: firstly, that the subject matter dealt with in the Act does not fall within the ordinary legislative competence of the Parliament, and secondly, that the provisions of the Act violate the fundamental right of access to justice through an independent judiciary. I would take up and decide these contentions in seriatim.

Legislative competence of Parliament

12. The Act generally relates to the practice and procedure of this Court, as its name suggests. To give an overview of the Act, it is noted that: The Act comprises eight sections. Section 1 prescribes the Act and declares it to have a prospective effect. Section 2 relates to the constitution of Benches and that every cause, appeal or matter before the Supreme Court is to be heard and disposed of by a Bench to be decided by a Committee comprising of the Chief Justice and the two next most senior Judges. Subsections 2 & 3 of Section 2 provide for the framing procedure of the said Committee and its decisions. Section 3 provides for the manner and mode of how the Supreme Court is to exercise its original jurisdiction provided under clause 3 of Article 184 of the Constitution.

It mandates the Committee to view the petition on the touchstone of the conditions precedent required under clause (3) of Article 184 of the Constitution and for the same to be placed before a Bench comprising of not less than three Judges of the Supreme Court. Section 4 mandates that in cases where the interpretation of the Constitution is involved, the Committee is to constitute a Bench of not less than five Judges of the Supreme Court. Section 5 creates an appeal against an order passed by a Bench exercising jurisdiction under clause (3) of Article 184 of the Constitution. It further mandates that the appeal is to be heard by a Larger Bench of the Supreme Court. Further, subsection (2) of Section 5 vests a right of appeal to any aggrieved person against whom an order has been passed under clause (3) of Article 184 of the Constitution prior to the commencement of the Act, providing retrospective effect to such exercise of right. Section 6 provides the right to appoint a counsel of choice in filing a review application under Article 188 of the Constitution.

Section 7 stipulates fourteen days for fixation of any application for urgency or interim relief, filed in a cause, appeal or matter. Finally, Section 8 provides for the provisions of the Act to have an overriding effect on any other law, rules or regulations for the time being in force or judgment of any court including the Supreme Court and the High Court.

13. To establish the legislative competence of Parliament on this matter, the learned Attorney General and other learned counsel, supporting the constitutional validity of the Act, placed reliance on Article 191 and Article 142(a) read with Entries 55 and 58 of the Federal Legislative List provided in the 4th Schedule to the Constitution.

14. Our constitutional history bears witness to special attention being rendered by providing express provisions vesting authority to frame rules relating to the practice and procedure of the Supreme Court. Reviewing the legislative evolution of the said authority to frame rules relating to the practice and procedure of the Supreme Court, one finds the following: Government of India Act, 19351956 Constitution 1962 Constitution 1973 Constitution Section 214(1) of the Government of India Act, 1935 provided that: "The Federal Court may from time to time, with the approval of the Governor-General in his discretion, make rules of court for regulating generallyClause 3(1) of the 3rd Schedule to the Constitution provided that: "The Supreme Court may, with the previous approval of the President, make rules for regulating the practice and practice of the court..."Article 65 of the Constitution provided that: "Subject to this Constitution and the law, the Supreme Court may, with the approval of the President, make Rules regulating the practice andArticle 191 of the Constitution provides that: "Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court." the practice and procedure of the court..."procedure of the Court."

A careful review of the above provisions shows that the evolution of the constitutional sources for framing rules regulating the practice and procedure of the Supreme Court, as provided in the successive constitutions of our country, reveals two marked trends: first, the inclusion of check of the Legislature on the rule-making authority of the Supreme Court; and second, the removal of the Executive to have any check on the formulation of rules of practice and procedure of the Supreme Court.

15. Having considered the legislative trend in the evolution of the rule making authority of the Supreme Court to frame rules relating to its practice and procedure, it would now be expedient to carefully read Article 191 of the Constitution to understand the true purport thereof. For ease of reference, the said provision reads: Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. (Underlining added)

A watchful reading of the above provision indicates three legislative sources for framing and regulating the practice and procedure of the Supreme Court: firstly, the Constitution, secondly, the law, and finally, the rules framed by the Supreme Court. No one has, before us, contested the above stated first and the third legislative source - the Constitution and the rules made by the Supreme Court - for framing and regulating the practice and procedure of the Court. All before us agree that, by a constitutional amendment, the legislature may incorporate in the Constitution, any provision on the matter of the practice and procedure of the Supreme Court, and similarly, that the Supreme Court may make rules on the matter of its practice and procedure. The contest between the parties was essentially focused on the above stated second source - the law.

16. No doubt, opinion of the parties may differ on the scope of the term 'law' as used in Article 191 of the Constitution. Some may argue that, it includes the principles of law enunciated by the Court in terms of Article 189 of the Constitution or any custom or usage having the force of law. Whether or not it is so, is not a matter in dispute before this Court in the present case. However, the insertion of the word 'law' employed in Article 191 of the Constitution, could by no stretch of legal interpretation, exclude a validly enacted piece of legislation.

17. Saying that a law enacted by a competent legislature cannot regulate the practice and procedure of the Supreme Court would amount to shutting our eyes on the plain language of Article 191 of the Constitution, and thereby offends the settled cardinal principles of interpretation of constitutional provisions. However, it is a matter for judicial examination and determination, as to whether the term 'law' used in Article 191 by itself confers the legislative power on Parliament or the legislative competence of Parliament is to be culled from other provisions of the Constitution.

18. In this regard, the learned Attorney General contended that, Article 191 of the Constitution by itself is an enabling provision that confers the legislative competence on Parliament to make 'law' on the subject of 'practice and procedure' of this Court. His reliance was on "[m]atters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament)", as provided in the first part of Entry 58 of the 4th Schedule to the Constitution.

19. One cannot legally consider the word 'law' in isolation to the expression 'subject to law' employed in Article 191 of the Constitution. One must acknowledge that, the use of the expression 'subject to law' is not unique in Article 191, as it has been used in several other provisions of the Constitution. In my opinion, the said expression ordinarily makes the right or power, in respect of which it is used, subordinate and subservient to the law enacted by a competent legislature. This expression, to my mind, does not by itself confer any legislative power on a particular legislature. It only envisages that the right or power may be regulated, controlled, or curtailed by law enacted by a competent legislature. This, in my opinion, was the intent of the framers to employ the expression 'subject to law' in Article 191 of the Constitution.

20. Given the above intent, when we read Article 191 (supra), it becomes clear that by using the said expression therein, the legislature wanted to convey by implication that, there was or may be law on the matter of practice and procedure of the Supreme Court other than the one framed by the Supreme Court, and when there is such a law or is to be competently enacted, the power of the Supreme Court to make rules on this matter or the rules already framed shall stand eclipsed. In other words, the provisions of a law regarding matter of practice and procedure of the Supreme Court enacted by the competent legislature shall prevail over the provisions of a rule also made thereon by the Supreme Court.

21. In fact, the Full Court that framed the Supreme Court Rules, 1980 ("the Rules"), carried through the above explained intent of the makers of the Constitution, in subjecting the rule-making authority of the Supreme Court to competently enacted law. This is but evident from the provisions of Order XI of the Rules, wherein, the authority of fixation of the cases before the Benches of the Supreme Court was bound to an appropriately enacted 'law'. The said rule reads: "[s]ave as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice".

(emphasis provided)

22. The legal significance of the check of 'law' on the rule-making authority of the Supreme Court is magnified manifold, when we note that the framers of the Constitution did not prescribe any such check of 'law' on the rule-making authority of the Parliament^[41] to regulate its proceedings or for that matter, the Executive^[42] to govern its affairs of governance. Thus, the intent of the framers of the Constitution is but very obvious.

23. Reverting back to the issue of tracing the legislative source to enact the law envisaged under Article 191 of the Constitution, we have to first address the two inter-connected issues: first, whether Federal or Provincial or both, legislatures can legislate on the matter of practice and procedure of the Supreme Court; and secondly, to identify the enabling provision of the Constitution.

24. As per Article 142 of the Constitution, Parliament has exclusive power to make laws with respect to any matter in the Federal Legislative List of the 4th Schedule to the Constitution, and all other matters (except criminal law, criminal procedure, and evidence) fall within the legislative competence of Provincial Assemblies. On the matters of criminal law, criminal procedure, and evidence, Parliament and Provincial Assemblies have concurrent legislative power. The matter of practice and procedure of the Supreme Court is not covered by the matters of criminal law, criminal procedure, and evidence over which Parliament and Provincial Assembly have concurrent legislative power. Thus, with the issue of practice and procedure of the Supreme Court being outside the pale of the concurrent legislative power of the Parliament and Provincial Assemblies, the moot question is, therefore, further restricted to: whether it is Parliament or Provincial Assemblies that have the legislative competence on the matter of practice and procedure of the Supreme Court.

25. As per Article 141 of the Constitution, a Provincial Assembly can make laws for the Province or any part thereof; it cannot make laws that can have extra-territorial operation beyond the territorial limits of the Province. As Supreme Court exercises its jurisdiction and judicial powers for the whole of Pakistan, the Provincial Assemblies, thus, lack the legislative power to enact a law relating to the Supreme Court, including a law that regulates its practice and procedure. This would leave us now to focus on the issue: whether Parliament has the legislative competence to legislate thereon or otherwise.

26. When we read the Federal Legislative List of the 4th Schedule to the Constitution, we do not find the matter of practice and procedure of the Supreme Court, expressly mentioned therein. The reliance on Entry 55 of the Federal Legislative List by some of the learned counsel supporting the validity of the Act, in my opinion, is not well placed. Though the scope of this Entry shall be discussed in detail later, suffice here to state that, this Entry relates to 'jurisdiction' and 'powers', and not the 'practice and procedure' of the Supreme Court.

27. In order to establish legislative competence of the Parliament, one must carefully read Entry 58 of the Federal Legislative List of the 4th Schedule to the Constitution. This entry along with Entry 59 are, in fact, independent sources of legislative competence for Parliament with respect to matters which under the Constitution are within the legislative competence of Parliament or relate to the Federation. For ease of reference, Entries 58 and 59, are reproduced herein below for better understanding. The provisions read as follows: Entry 58 "Matters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament) or relate to the Federation."

Entry 59 "Matters incidental or ancillary to any matter enumerated in this Part."

28. The constitutional architecture necessitates that those matters stated in the legislative list be interpreted not as explicit grants of power, but as frameworks outlining the scope of legislative competence. In this light, these entries demand an interpretation that is not only liberal and broad but also deeply rooted in the constitutional ethos and that bolster respect for the doctrine of separation of powers. In interpreting these entries, particularly in the context of a federal structure, it is imperative to give them the widest possible ambit. However, this does not imply an unfettered expansion of legislative competence into judicial domain. The phrase '[m]atters which relate to the Federation' in Entry 58, while broad, must be understood within the bounds of constitutional propriety and the underlying principle that legislative overreach into 'jurisdiction' and 'powers' of the Supreme Court is constitutionally impermissible. This interpretation aligns with the foundational principle of constitutionalism, which mandates a clear demarcation and balance between legislative and judicial powers. Thus, while Entry 58 offer a basis for legislative action in matters of 'practice and procedure' of the Supreme Court, such action must be exercised with constitutional caution, ensuring that it does not encroach upon the 'jurisdiction' and 'powers' of the judiciary, as explicitly constrained by Entry 55. This delicate balance is essential to uphold the integrity and independence of the judiciary, a cornerstone of democratic governance and the rule of law. In this backdrop, when we read Entry 58, it becomes apparent that, as Supreme Court exercises its jurisdiction and judicial powers for the whole of Pakistan; it is, in this sense, a constitutional establishment, having direct nexus with the Federation. To declare its functions otherwise than '[m]atters which relate to the Federation' provided in Entry 58, would be factually and legally incorrect. Therefore, the matter of practice and procedure of the Supreme Court is a matter that relates to the Federation, and thus falls within the scope of Entry 58 of the Federal Legislative List in the 4th Schedule to the Constitution. Parliament, therefore, has the legislative competence to enact the Act on the matter of practice and procedure of the Supreme Court.

Conclusion on Legislative Competence of Parliament Given the above, though I differ with the reasoning rendered by the learned Attorney General in rendering legal cover to the Act, I concur with his conclusion that, the 'practice and procedure' of the Supreme Court mentioned in Article 191 of the Constitution falls within the scope of Entry 58 of the Federal Legislative List, and thus, the Parliament has the legislative competence to legislate on 'practice and procedure' of the Supreme Court.

Violation of the fundamental rights - provisions of the Act

29. Once the legislative competence of Parliament to legislate on the matter of 'practice and procedure' of the Supreme Court has been settled, the provisions of the Act are now to be examined on the constitutional touchstone of Article 8 of the Constitution. This constitutional test is, whether a law enacted by a competent legislature can take away or abridge any of the fundamental rights guaranteed by the Constitution.

30. The main thrust of the challenge made by the petitioners to the validity of the Act was that it violates the independence of the judiciary, and thereby offends the fundamental right of access to justice through an independent judiciary, enshrined in the right to life and liberty, as well as, in the right to a fair trial and due process guaranteed by Articles 9 and 10A of the Constitution, respectively.

31. Admittedly, the Act has essentially dealt with the power of constituting Benches and suo motu invocation of the original jurisdiction of this Court under Article 184 of the Constitution. Earlier, the constitution of Benches of the Supreme Court was decided by the Chief Justice alone, whereas the enabling provisions of the Act have conferred the said authority on a Committee, comprising of the Chief Justice and two next most senior Judges of this Court. What is evident is that these powers have remained in and with the Court, that is, its Judges. No power has been conferred on any outsider to the Court. Despite their lengthy arguments, the learned counsel for the petitioners and other persons opposing the validity of the Act remained unable to explain, how the Act affects the independence of the judiciary in substituting the Chief Justice with the Committee comprising not only the Chief Justice but also the two next most senior Judges to exercise the administrative powers of constituting Benches and invoking suo motu under the original jurisdiction of the Court.

32. Undoubtedly, the Chief Justice of the Supreme Court has been expressly vested with special powers in the Constitution, in particular, matters relating to elevations to the bench, administering oath of office, rendering recommendation for appointments to various constitutional positions, and being part of commissions for removal of judges of superior judiciary and other constitutional office holders under the Constitution.^[43] But when it came to framing the rules for regulating the 'practice and procedure' of the Supreme Court, the framers of the Constitution vested Supreme Court, and not the Chief Justice, with the authority to regulate the same. And, mind you, the Supreme Court under Article 176 of the Constitution, consists of the Chief Justice and the other judges of the Supreme Court. Thus, the clear intent of the framers of the Constitution was, but obvious.

33. Viewed from another legal perspective, it would be interesting to note that, in essence, the Act makes the process of constituting Benches more democratic, fostering a participatory approach in decision-making.

No one can dispute that a decision based on mutual consultation of three Judges, instead of the solitary opinion of one Judge, would enhance transparency and responsibility of the process. We must not forget that central to all judicial systems, regardless of their geographic, political, or societal differences, is the responsibility that they must have the public trust and confidence in them. To my mind, public trust in the judiciary does not merely hinge on the legal attributes of the judgments rendered, but is based essentially on the trust and confidence of the public in its impartiality and independence. Given this ultimate objective, which was underscored by the marked protests voiced by the civil-society, political and lawyers community on the process of the constitution of Benches and the excessive exercise of the original jurisdiction of the Supreme Court, the introduction of a process of mutual consultation of three senior Judges of the Supreme Court, and that too, without any interference of any 'alien' authority, person or body, would promote transparency, and thereby, bolster the trust and confidence of the public in the institution and instead of diminishing, strengthen the independence of the judiciary.

Conclusion - whether provisions of the Act violate fundamental rights In view of the above, I am of the firm opinion that the provisions of the Act do not offend the fundamental rights under the Constitution. Therefore, the challenge of the petitioners to the constitutional validity of the Act fails on both counts: firstly, lack of legislative competence, and secondly, violation of fundamental rights.

Issue No. II - Comments on Section 2 of the Act

34. What irks me is the expansive scope of authority vested in the Committee under section 2 of the Act. As per the Statement of Objects and Reasons of the Bill introduced in the Parliament, the primary aim was to regulate the practice and procedure of this Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution but the compass of section 2 of the Act goes far beyond it, and covers "[e]very cause, appeal or matter" before the Court. This, I earnestly regard to be rather excessive.

35. I have no hesitation in saying that the Statement of Objects and Reasons correctly identified the need for regulating the practice and procedure of the Court in relation to the exercise of its original jurisdiction under Article 184(3) of the Constitution. Not only the Pakistan Bar Council and the Supreme Court Bar Association but also the Justices of this Court have highlighted such need.

Thus, none can dispute or deny the need for reforms in the practice and procedure of this Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution.

36. In fact, I may add that not only the original jurisdiction of the Court under Article 184(3) of the Constitution, but in my opinion, the advisory jurisdiction of this Court under Article 186 of the Constitution, warrant to be regulated. To my mind, the framers of the Constitution envisaged the exercise of original jurisdiction under Article 184(3) by the Court in cases relating to such segments of the society that do not have the political, financial, or legal means to agitate their cause with reference to the enforcement of their fundamental rights before any political, administrative, or judicial forum. Similarly, the advisory jurisdiction, under Article 186 of the Constitution, was intended to obtain an 'opinion' of the Court on a question of law of public importance, but over the years, the 'opinion' has been transformed into a 'decision' having the binding effect. Thus, the exercise of these two jurisdictions required introspection by the Court, and in particular, the mode and manner of composition of Benches was of utmost importance. This, I say without imputing any mala fide or bias on the decisions and opinions that have been rendered by different Benches of this Court, while exercising these jurisdictions.

37. I earnestly think that none should doubt the integrity and good intention of the Chief Justices in constituting Benches but in the backdrop of the charged political milieu in the country, the excessive exercise of the original and advisory jurisdiction in matters of political nature led to aspersions, which could have been avoided had there been transparent criteria for constitution of the Benches and fixation of the cases under Articles 184(3) and 186 of the Constitution. We must always remember that since the real strength of any judicial system lies in public confidence, the public perception regarding the composition of Benches and allocation of cases is of prime importance.

38. What, however, is noticeable that the issue related to the exercise of original jurisdiction under Article 184(3) of the Constitution, but section 2 of the Act has expanded the scope of regulating the practice and procedure of the Court to "[e]very cause, appeal or matter" before the Court.

39. No doubt, change is good; in certain matters, incremental change is even better. This is to ensure that the system aimed to be reformed is not yoked and choked under the weight and flow of the proposed change itself. Therefore, I urge the Federal Government to move Parliament to reconsider section 2 of the Act. I must clarify that in asking to reconsider section 2 of the Act, I am in no way questioning the intent, wisdom, or authority of Parliament.

Issue No. III. - Constitutional validity of section 5 of the Act (right of appeal)

40. Section 5 of the Act has created a right of appeal against an order passed by the Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution. And this right of appeal has been made available, with retrospective effect, to an aggrieved person against whom the order has been made even before the commencement of the Act. For the convenience of reference, section 5 of the Act reads:

5. Appeal.- (l) An appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days.

41. The right of appeal is not a matter of mere procedure but is a substantive right. This is a well- settled principle in our jurisprudence, and no one has before us disputed its correctness. I may add that from a litigant's viewpoint, the right of appeal is no doubt a right but from a court's perspective, it is a matter of jurisdiction, which can only be conferred on a Court by the Constitution or by or under any law as per Article 175(2) of the Constitution. Therefore, to establish the competence of the Parliament to enact a law that confers jurisdiction on this Court, one has to show any provision in the Constitution or any entry in the Federal Legislative List contained in the 4th Schedule to the Constitution that empowers it in this regard.

42. To establish the legislative competence of Parliament in enacting section 5 of the Act, the learned Attorney-General has relied upon Entry 55 of the 4th Schedule to the Constitution. For ease of reference, Entry 55, is cited here: Entry No. 55: Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.

A bare reading of Entry 55 shows that as per the first part of this Entry, Parliament, the Federal Legislature, is competent to make laws regarding the jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in the list. However, the second part of the Entry makes Parliament, competent to make law for the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon the supplemental powers with the proviso that this is to be done only to such extent, as is expressly authorized by or under the Constitution. The phrase 'to such extent as is expressly authorized by or under the Constitution' has a qualifying and controlling effect on the provision of which it is a part. The learned Attorney General, however, submitted that this controlling phrase is not part of the provision that relates to the enlargement of the jurisdiction of the Supreme Court, but relates to the other Courts. According to him, the provision relating to the other Courts is to be read as under: - Jurisdiction and powers of all courts ... with respect to any of the matters in this List and, to such extent as is expressly authorized by or under the Constitution, ...

His argument, in essence, was that the requirement of express authorization by or under the Constitution stated in Entry 55 relates to the jurisdiction and powers of other Courts, not to the enlargement of the jurisdiction of the Supreme Court.

43. The learned Attorney General has, to my mind, missed to appreciate that the entries in relation to the jurisdiction and powers of Courts, other than the Supreme Court, have had a consistent phraseology throughout the constitutional history of Pakistan. The controlling phrase, 'to such extent as is expressly authorized by or under the Constitution, has never been used with reference to the jurisdiction and powers of other Courts in the relevant Entries of the legislative lists provided in all the previous Constitutions of Pakistan, as well as in the present Constitution. Such Entries may be cited here, as a ready reference: The Government of India Act, 1935^[44] Legislative List II - Provincial Legislative List- Entry No. 2. Jurisdiction and powers of all courts except the Federal Court, with respect to any of the matters in this list; procedure in Rent and Revenue Courts.

Legislative List III - Concurrent Legislative List, Part-1 Entry No. 15. Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list.

The Constitution of Pakistan, 1956 Federal List, Part II.

Entry No. 29. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; offence against laws with respect to any of the matters in this list.

Concurrent List, Part II.

Entry No. 19. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; offence against laws with respect to any of the matters in this list.

Provincial List.

Entry No. 92. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.

The Constitution of Pakistan, 1962 Third Schedule (Central List).

Entry No. 46. Jurisdiction and powers of courts with respect to any of the matters enumerated in this Schedule.

The Interim Constitution of Pakistan, 1972 List II - Provincial Legislative List, Part I Entry No. 2. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; procedure in Rent and Revenue Courts.

List III - Concurrent Legislative List, Part I Entry No. 16. Offence against laws with respect to any of the matters in this List; jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.

The Constitution of Pakistan, 1973 Concurrent Legislative List (Since omitted)

Entry No. 46. Offence against laws with respect to any of the matters in this List; jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.

The controlling phrase, 'to such extent as is expressly authorized by or under the Constitution', or a phrase similar to it, has been used in the following Entries of the three Constitutions: The Government of India Act, 1935 ('Act of 1935')

Legislative List I - Federal Legislative List- Entry No. 53. Jurisdiction and powers of all courts, except the Federal Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by Part IX of this Act, the enlargement of the appellate jurisdiction of the Federal Court, and the conferring thereon of supplemental powers.

The Interim Constitution of Pakistan, 1972 List I - Federal Legislative List, Part I Entry No. 55. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Federal Court, and the conferring thereon of supplemental powers.

The Constitution of Pakistan, 1973 List I - Federal Legislative List, Part I Entry No. 55. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Federal Court, and the conferring thereon of supplemental powers.

In all the above three Entries, the controlling phrase, 'to such extent as is expressly authorized by or under the Constitution', or a similar phrase with a minor change in the Act of 1935, has been used when the Entry provided for the enlargement of the jurisdiction of the Supreme Court, or the Federal Court, the predecessor Court to the Supreme Court. This consistent phrasing of the relevant legislative Entries in the previous Constitutions, as well as in the present Constitution, by itself lends support to principle that under Entry 55 (supra), the controlling phrase only relates to the enlargement of the jurisdiction of the Supreme Court, and is not relevant to the jurisdiction and powers of other Courts.

44. Foremost is the point that the reading of Entry 55 suggested by the learned Attorney General would defeat the express exclusion provided in the first part of the Entry, as to the jurisdiction and powers of the Supreme Court, and that exclusion would become redundant. The exclusion in the first part of the Entry can have a meaning and effect only when we read the latter part of the Entry with the controlling clause.

45. To my mind, by creating the right of appeal against orders passed by the Supreme Court in its existing original jurisdiction under Article 184(3) of the Constitution, Parliament has not 'enlarged' the jurisdiction but has in fact created a separate and new appellate jurisdiction, which was not provided for in the Constitution. By no stretch of the imagination can the word 'enlargement', include the 'creation' of a new jurisdiction.

46. There is another aspect of the matter, that the original jurisdiction under Article 184(3) has been conferred on the Supreme Court by the Constitution, it cannot therefore be interfered with by the legislature through ordinary legislation, such as section 5 of the Act, especially when Article 184(3) of the Constitution does not subject its exercise of original jurisdiction being 'subject to law'.

47. The learned Attorney General and all the other learned counsel, supporting the constitutional validity of section 5 of the Act, were unable to point out any express authorization by or under the Constitution for Parliament to interfere with the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution. Thus, in my considered opinion, Parliament lacks legislative competence to enact section 5 of the Act.

48. I may mention here that providing a right of appeal against an order passed by this Court in its original jurisdiction is, no doubt, a positive thought to better ensure the requirements of fair trial and due process; but in pursuit of a positive outcome, the law not less than the fundamental and supreme law of the land - the Constitution - cannot be disregarded. If Parliament intends to take the positive step of providing a right of appeal against orders passed by this Court in the exercise of its original jurisdiction under Article 184(3) of the Constitution, it must adopt the "right course" - amend the Constitution.

49. With utmost respect for Parliament, I declare that section 5 of the Act has been enacted by Parliament beyond its ordinary legislative power conferred on it under the Constitution; section 5 of the Act is, therefore, ultra vires the Constitution, and thus of no legal effect.

JUDGMENT

Syed Hasan Azhar Rizvi, J. I have had the privilege of perusing the majority judgment proffered by Mr. Justice Qazi Faez Isa, Hon'ble Chief Justice of Pakistan. I generally concur with the same to the extent of affirming the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023 ("the impugned Act"); however, my disagreement, with the utmost respect, pertains solely to the retrospective right of appeal as stipulated in section 5(2) of the impugned Act. This dissent is grounded in a conscientious examination of the potential consequences that such a retrospective operation may yield, both legally and practically. Being so, I am persuaded to delineate and elucidate the rationale supporting my divergence from the majority opinion on this particular aspect. For convenience's sake, the short order dated 11.10.2023 is reproduced below:- "ORDER OF THE COURT For reasons to be recorded later these petitions are decided as under:

2. Before the impugned Act, there was no right of appeal against the order passed by this Court in the exercise of the original jurisdiction under clause (3) of Article 184 of the Constitution. But, the aggrieved person could have sought his remedy by invoking the review jurisdiction of this Court under Article 188 of the Constitution. The study of the Constitutional history of Pakistan reveals that the power of Supreme Court to review any of its judgments or orders as given under Article 188 of the Constitution is not new as the same power was granted to the Supreme Court under Article 161 of the Constitution 1956 and Article 62 of the Constitution 1962. Initially, the Supreme Court's power of review was regulated by the Federal Court Rules, 1950. However, after the promulgation of the Constitution, 1956 the Supreme Court, in the exercise of its rule-making power, made the Supreme Court Rules, 1956 and under its sub-rule 2 of rule 1, the then existing Rules 1950 were revoked. The Order XXVI (R 1 to 7) of the Rules 1956 regulated the Supreme Court's power of review. The Rues 1956 remained in force till the making of the Supreme Court Rules, 1980 ("Rules 1980") by the Supreme Court, in the exercise of the power conferred upon it under Article 191 of the Constitution, 1973. Order XXVI (Rule 1-9) of the Rules 1980 regulates the Supreme Court's power to review any of its judgments or orders. Being so, the aggrieved persons, from the very beginning, used to seek their remedy by resorting to the review jurisdiction of this Court, the only remedy available against the order passed by this Court in its original jurisdiction under clause (3) of Article 184 of the Constitution.

3. It would not be out of place to mention here that the power of review under Article 188 of the Constitution is not wide enough rather definite and limited in nature and confined to the basic aspect of the case referred to at the review stage which was considered in judgment but if the grounds taken in support of the review petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of the case on merits. Reference may be made to the cases of Ghulam Murtaza Versus Abdul Salam Shah (2010 SCMR 1883); Syed Wajihul Hassan Zaidi versus Government of the Punjab and others (PLD 2004 Supreme Court 801); Pakistan International Airlines Karachi versus Inayat Rasool (2004 SCMR 1737); Nook Hassan Awan versus Muhammad Ashraf (2001 SCMR 367); Kalsoom Malik and others versus Assistant Commissioner and others (1996 SCMR 710) and Abdul Majeed and another versus Chief Settlement Commissioner and others (1980 SCMR 504).

4. On the other hand, an appeal allows for a comprehensive re-examination of a case, unlike a review that focuses on specific aspects of the original decision. More appropriately, the right of appeal and review are not analogous as an appeal is, the review is not the continuation of the same proceedings. Thus, the legislature, in light of the above holistic distinctions, has rightfully provided the right of appeal from an order of a bench of this Court, that has exercised jurisdiction under clause 3 of Article 184 of the Constitution to a larger bench. Moreover, the right of appeal has been extended to the aggrieved persons against whom an order under the said Article of the Constitution has been made even before the commencement of the impugned Act. The provisions of section 5 are reproduced hereunder for ease of reference: "5. Appeal.-

(1) An appeal shall lie within thirty days from an order of a bench of the Supreme Court who exercised jurisdiction under clause (3) of Article 184 of the Constitution to a larger bench of the Supreme Court and such appeal shall, for hearing, be fixed within a period not exceeding fourteen days.

5. The provision of the right of appeal to an aggrieved person against whom an order has been made under Clause (3) of Article 184 of the Constitution is one of the objects of the enactment of the impugned Act as set out in the preamble thereof, which provides that "[A]rticle l0A, of the Constitution, mandated right to fair trial and due process, Article 4 of the Constitution guarantees treatment in accordance with law, Article 25 of the Constitution prohibits discriminatory treatment and right of appeal is a universal fundamental principle of jurisprudence and Islam guarantees right of appeal, therefore, pursuant of Article 175 (2) read with Article 191 of the Constitution this law is being enacted." By providing the right of appeal, the legislature has achieved its objective. The conferment of the right of appeal is also in conformity with the injunctions of Islam as laid down in the Quran and the Sunnah as held by this Court in the cases of Federation of Pakistan v. Public at Large (PLD 1988 Supreme Court 202) and Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 Supreme Court 6). In these cases, the Shariat Appellate Bench of this Court declared that under the Islamic dispensation of justice, at least one right of appeal must be provided to an aggrieved person and that the law barring such right to an aggrieved person is repugnant to the injunctions of Islam.

6. The issue regarding the constitutionality of the impugned Act as well as the competence of the legislature to enact the impugned Act and to provide a statutory right of appeal thereunder against the exercise of original constitutional jurisdiction by this Court under Article 184(3) of the Constitution has exhaustively and comprehensively been deliberated in the majority judgment with sound reasoning, and I concur with the arguments built therein. And, I further add that this legislative framework would uphold the principles of fairness, transparency, and justice within our legal system. Now, the independent judges, greater in numbers and uninvolved in the original case, have the opportunity to rehear and decide the matter. This not only reaffirms the core values of impartiality but also strengthens the integrity of the legal system by allowing for a fresh perspective when justice may not have been adequately served in the original proceedings.

7. There is no denial to the fact that every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes the power to give it retrospective effect.

However, normally, the legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights of the parties. On a plain reading of the language of the afore-quoted provision, particularly, sub-section (2) of section 5 of the impugned Act, it becomes abundantly clear that the legislature's intent is to provide the remedy of appeal against orders passed by this Court, even predating the enactment or commencement of the impugned Act. It is a settled principle of law that the right of appeal is a substantive right; hence, the retrospective expansion thereof raises significant apprehensions, as it threatens to disrupt the finality and certainty that has historically been attributed to judicial pronouncements. Such disruptions may have deleterious ramifications, not only in terms of the orderly administration of justice but also with respect to the stability and predictability of legal decisions. For these reasons, my disagreement with the majority and reservation to the extent of the provision of the right of appeal retrospectively present a palpable concern, as it would offend the fundamental rights of the parties because it has the potential to open a veritable floodgate of claims and appeals pertaining to past transactions and concluded legal matters.

8. At the same time, I cannot loose sight of the fact that the legislature has the power to impair and take away vested rights but within the limits set by Articles 4, 8, 9, 10 and 10-A in conjunction with Articles 24 and 25 of the Constitution. The limitation flows from the doctrine that the action of the State must be fair and reasonable. Thus, the question, as to the validity of the retrospective law, is a matter to be judged on a consideration of the facts, the period of time, over which the retrospective law operates, the impact of the law on the vested rights, the public interest, the nature of the right, which is the subject matter of the law and the terms of the law. Even otherwise, the validity of a legislative enactment, whether with retrospective effect or otherwise, shall always be subject to judicial review on the well-recognized principles of ultra vires, non conformity with the Constitution or violation of the Fundamental Rights, or on any other available ground as observed by this Court in the case of Sindh High Court Bar Association through its Secretary and another versus Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad, and others (PLD 2009 Supreme Court 879).

9. The notion of granting a right of appeal against earlier decided cases is not to be taken lightly, as it carries profound implications that extend far beyond the immediate legal proceedings. We must be acutely aware that such a provision, while intended to ensure justice and fairness, can potentially cast a shadow of prejudice over past and closed transactions, as well as the rights and interests that have been secured under the judgments of this Court. The legal system, as it stands, is built on a foundational principle of 'finality'. When the Court renders a decision, it offers parties involved a sense of closure and certainty, allowing them to plan their future actions and make informed decisions based on the judgment's legal precedent. This foundation of predictability is vital not only for the parties but also for the broader stability of our legal framework. It is, therefore, imperative that we proceed cautiously when considering appeals against earlier decisions. We must recognize the delicate balance that exists between the pursuit of justice and the preservation of past transactions and previously accrued rights. Granting the right of appeals retrospectively must be done judiciously and only when compelling circumstances require it, as it threatens to disrupt the settled expectations of those who have acted in good faith based on the Court's prior rulings.

10. The present constitution came into force on 14.08.1973 (see Article 266). Over the span of nearly five decades, so many cases have been adjudicated by this Court in the exercise of its power under clause 3 of Article 184 of the Constitution. It is a common practice that the aggrieved person would not be satisfied unless he exhausts all the remedies available to him under the existing law.

Even otherwise, the judgment or order passed under clause 3 of Article 184 of the Constitution, whether a review petition has been filed against it or if a period of thirty days has elapsed after the pronouncement thereof without a review filed by either party, could not be reopened and would be deemed to be a past and closed transaction. For this reason, introducing a retrospective right of appeal now raises a profound concern. This could further compromise the principle of res judicata and jeopardize the stability and predictability of the legal system. It would open a floodgate of litigation and potentially overburden this Court with the daunting task of reevaluating numerous pre-settled matters or rights which had accrued on account of determination validly made under the then-existing law.

11. A somewhat similar matter came for consideration before this Court in the case of the Chief Land Commissioner, Sind, and others versus Ghulam Hyder Shah and others (1988 SCMR 715), wherein, the validity of the Land Reforms Regulation (Sind Amendment) Ordinance, 1972, which was expressly made retrospective and had the effect of nullifying the alienations of land previously held valid under the provisions of the un-amended Regulation, was challenged. A three-member bench of this Court unanimously made the following important observations: "11. Now on a plain reading of the language of the Amending Ordinance there is no ambiguity that the same was given effect retrospectively and by the mandate of the law the amendments were to be deemed to have taken effect on 11th March, 1972. However, doubt with regard to the retrospectively in this case has arisen, on account of the fact and in respect of the orders earlier passed by the Land Commission in exercise of powers vesting in it under the existing law whereby the alienations declared by the two landholders were affirmed as valid transactions. As pointed out by the High Court the legislature has merely declared the amendments effected in the main Regulation to have taken place retrospectively and left the matter at that. No express provision was made in the amending statute to the effect that the new dispensation, totally prohibiting the recognition of any alienations in favour of non-heirs, will also affect and undo the orders passed under the existing law by the Land Commission prior to the date of the passing of the amending Ordinance. In order to resolve this doubt the matter naturally falls within the domain of interpretation by the Court to determine whether the law as amended will also be applicable to past and closed transactions. To put it differently the question is whether in this sense the amending Ordinance contains an express provision or this result is contemplated by the language of the amending Ordinance by necessary implication. In this behalf the High Court proceeded on a correct principle of interpretation that "no rule of construction is more firmly established than this, that retrospective operation is not to be given to a statute so as to impair an existing right or obligation". The main and primary rule is that every statute is deemed to be prospective, unless by express provision or necessary intendment it is to have retrospective effect. Also the rule that no statute shall be construed so as to have retrospective operation affecting vested rights to a greater extent than its language renders necessary is firmly established."

Emphasis Supplied.

Further observed: "12...Therefore, if the power vesting in the Commission, untrammeled by the prohibition, subsequently incorporated in the law, was once asserted and exercised, the result of such exercise of power will be a transaction past and closed qua the amending Ordinance. It is in this context that the retrospectivity of the amending statute in this case has to be determined.

Looking at the matter in this way we are in agreement with the conclusion arrived at by the Division Bench that there is no express or implied intendment in the provisions that such past and closed transactions would be affected by the amendment. Under the law as it stood on the date when the earlier orders were passed by the Commission the same were perfectly legal and capable of creating rights in favour of the donees of the gifts scrutinized under the provisions of the said law. Therefore, although the amending Ordinance is retrospective in the sense that it applies to alienations which had taken place before 11th March, 1972, the restrictions on the power of the Commission stipulated by the amending law cannot be retrospectively applied to transaction duly scrutinized and affirmed before the date of the amending Ordinance. This is consistent with the rule of presumption that the legislature does not intend what is unjust or to reopen transactions which have already resulted in creating title to property to be re-opened or exposed to jeopardy."

Emphasis Supplied.

The Court finally held: "Therefore, the earlier orders by the Commission in favour of the non-heir transferees, having been lawfully passed could not be subjected to review by applying the dispensation created by the amending Ordinance to those orders, which amounts to unauthorisedly giving retrospective operation, to the amending law not permitted by the statute itself."

Emphasis Supplied.

12. Recently, in Badshah Gul Wazir versus Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43), a similar situation again came for consideration before this Court. In this case, the appellant, a retired grade 21 officer, was appointed as the Provincial Ombudsman, Khyber Pakhtunkhwa, under section 3 of the Khyber Pakhtunkhwa Ombudsman Act, 2010, for a period of four years, with effect from the date of his taking the oath of the office of Provincial Ombudsman. Section 4(1) of the Act 2010 provides the tenure of the Provincial Ombudsman in the terms, "The Provincial Ombudsman shall hold office for a period of four years and shall not be eligible for any extension in his tenure or for re-appointment as Provincial Ombudsman under any circumstances." Later, section 4(1) of the Act 2010 was amended, which now provides, "The Provincial Ombudsman shall hold office for a period of four years or until the age of sixty-two years, whichever is earlier, and shall not be eligible for any extension in his tenure or re-appointment as Provincial Ombudsman under any circumstance." Since the appellant had reached the age of 62 years, the Government of KPK de-notified the appellant's appointment as Provincial Ombudsman in the light of the above amendment. Being dissatisfied, the appellant impugned the notifications of the KPK government before the concerned High Court but remained unsuccessful; subsequently, he approached this Court. The case of the appellant was that he was appointed for a period of four years, and before the expiration of that period, the Government purported to "de-notify" him. Furthermore, the amendment made in Section 4 did not automatically cause the appellant to cease holding the said office. There was nothing in the Amendment Act to suggest that the amendment made in section 4 was retrospective in operation and/or would also apply to the appellant. This Court allowed the appeal while holding that the appellant would continue to hold the office of the Provincial Ombudsman for a period of four years, which shall commence from the date he took the oath of office and made the following important observation: "11. That the Act was enacted, "to provide for the establishment of the office of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, redressing and rectifying any injustice done to a person through maladministration suppress corrupt practices and to ensure good governance" (the first preamble of the Act). The Provincial Ombudsman has been empowered to investigate maladministration (section 9), therefore, to ensure that the watchdog status of the Ombudsman is not compromised and he does not succumb to pressure the legislature in its wisdom provided statutory protection to the person holding the office of Provincial Ombudsman and envisaged his/her removal only if he/she was guilty of misconduct or was physically or mentally incapacitated to perform his/her duties as provided in sub section (2) of section 6 and its proviso. The appellant was appointed as the Provincial Ombudsman for a period of four years and no step for removal of the appellant was taken pursuant to subsection (2) of section 6, therefore, he must be allowed to continue to hold the office till the expiry of such term. The amendment made to section 4 does not contain any element whereby the appointment of the appellant as a Provincial Ombudsman was revoked, repealed, withdrawn or cancelled; the silence of the legislature in this regard is significant.

Therefore, in the absence of legislation, the tenure of the appellant cannot be curtailed in the exercise of administrative powers, but, unfortunately, the same was purported to be done by the first impugned Notification. The Act grants security of tenure to the office of the Ombudsman and it cannot be undone by the Government as such power the legislature in its wisdom has not conferred upon the Government. Consequently, the first and second impugned Notifications are declared to be in contravention of the Act, illegal, without jurisdiction and of no legal effect. The appellant will continue to hold the office of the Provincial Ombudsman for a period of four years which shall commence from the date he took the oath of office of the Provincial Ombudsman Khyber Pakhtunkhwa pursuant to notification dated 29th December, 2010. Resultantly, the purported appointment of respondent No. 4 as Provincial Ombudsman, at a time when the appellant was holding such office, is also declared to be illegal, without jurisdiction and of no legal effect."

Emphasis Supplied.

13. Similarly, the legislature in the impugned Act has merely declared that the right of appeal shall be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act and has concluded the matter there. No express provision was made in the impugned Act to the effect that the new dispensation providing a right of appeal will also affect and reopen cases adjudicated by this Court under the existing law prior to the date of the passing of the impugned Act. To resolve this uncertainty, the matter inherently falls within the purview of judicial interpretation, necessitating a determination by this Court as to whether the impugned Act is also applicable to the cases that have long been concluded and regarded as past and definitively closed transactions. As certain valuable rights, e.g., right to property had accrued in favor of a party under the said past and closed transactions and are protected and guaranteed under Article 24 of the Constitution. The primary rule of interpretation is that every statute is deemed prospective unless by express provision or necessary intendment, it is to have a retrospective effect. At the same time, it is also a settled principle of interpretation that no statute shall be construed to have retrospective operation affecting vested rights to a greater extent than its language renders necessary as has observed by this Court in Ghulam Hyder Shah's supra.

14. By applying the afore-noted settled principles of law, it has been found that the provision of section 5(2) of the impugned Act unequivocally grants a right of retrospective appeal, a remedy that, by its very nature, has the potential to revisit and reopen all past and closed transactions.

This aspect of the matter carries significant consequences, particularly the looming specter of injustice and prejudice that could be inflicted upon the parties in whose favour certain personal rights and liabilities have already rightfully been accrued and secured under the judgments or orders of this Court. The provision of the right of appeal retrospectively by itself is an infringement of fundamental rights which provide that every citizen shall be entitled to equal protection of law and will not be deprived of life or liberty save in accordance with law as provided under Article 9 read with Article 25 of the Constitution. The potential for adverse consequences to the parties affected by this retrospective provision must be carefully weighed. It is worth mentioning here that it is incumbent upon the legislature to balance the scales of justice in its pursuit of providing the right of appeal while simultaneously safeguarding the fundamental right i.e. right to property, office, etc., and the principles of legal finality. I have no doubt in my mind that balancing these competing rights/interests is an inherent duty of this Court as well, as it strives to maintain the delicate equilibrium between justice and the safeguarding of long-established rights. Being so, this Court on many occasions has authoritatively held that a transaction that has been completed and is thus "past and closed" beyond the possibility of being affected by any subsequent law.

There is a long line of authorities in support of this proposition of law. It is not necessary to refer to all these decisions, for I think it would be sufficient to quote some passages from some leading judgments of this Court: I) In P. G. Bhandari versus the Rehabilitation Authority, Lahore and 2 Others (PLD 1961 Supreme Court 89), it was held that: The argument is good so far as it goes, but it fails to meet the major argument of Mr. Mahmud Ali, namely, that with reference to the terms of West Punjab Act VII of 1948, construed with full regard to all the purposes and intentions underlying that statute, the restoration of the 10th May 1948, to Mr. Bhandari represented, a transaction which had been completed and was thus "past and closed" beyond the possibility of being affected by any subsequent law.

Emphasis Supplied.

II) In Nagina Silk Mill, Lyallpur versus the Income-Tax Officer, A-Ward Lyallpur, etc. (PLD 1963 Supreme Court 322), it was held that: The Courts must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails. Reference may be made in this connection to page 206 of Maxwell on the Interpretation of Statutes, Eleventh Edition. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute. The appellant herein had already acquired the vested right of escaping assessment, by lapse of time, when the 1960, Ordinance was enforced. In all probability, the Legislature never intended that the period of limitation prescribed in the Act should become variable with the changes in the "financial year" or "year" inserted in the Act for certain other purposes, namely, to accord with the new accounting year adopted by Government.

Emphasis Supplied.

III) In Ahmad Ali Khan versus Muhammad Raza Khan and Others (1977 SCMR 12), this Court held as follow: it seems to us that the High Court was right in the view it took, as has been pointed by this Court in the case of P. G. Bhandari v. The Rehabilitation Authority, Lahore (PLD 1961 SC89). A subsequent change in the law cannot affect past and closed transactions. Even if the rules prescribed in 46-A of the Rehabilitation and Settlement Scheme applied to the case of a deceased refugee owner (Sarfraz Khan could not be treated as a deceased right-holder), the petitioner could not have been allowed to re-agitate this matter after having earlier abandoned his appeal against mutation No. 25. After that abandonment in 1957, he could not maintain another appeal against mutation No. 25 in 1962 because of the change in the law in 1960. The Rehabilitation Authorities were, therefore, clearly wrong in deciding his second appeal against mutation No. 25 on the basis of the change in the law.

Emphasis Supplied.

IV) In Controller General of Accounts, Government of Pakistan, Islamabad and others versus Abdul Waheed and others (2023 SCMR 111), it was held that: "7. According to Bennion on Statutory Interpretation (Seventh Edition), page 181 with regard to the retrospectivity effect of law, it was said that "principle is sometimes expressed in the maxim lex prospicit non respicit (law looks forward not back). As Willes J said in Phillips v Eyre retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."

Whereas in Crawford's Statutory Construction, Chapter XXV, germane to Prospective and Retrospective Operation, at pages 562 to 566 and 622, the gist of the discussion is that retroactive legislation is looked upon with disfavor, as a general rule, and properly so because of its tendency to be unjust and oppressive. There is a presumption that the legislature intended its enactments to have this effect to be effective only in futuro. This is true because of the basic presumption that the legislature does not intend to enact legislation which operates oppressively and unreasonably. If perchance any reasonable doubt exists, it should be resolved in favour of prospective operation. In other words, before a law will be construed as retrospective, its language must imperatively and clearly require such construction. Amendatory statutes are subject to the general principles discussed elsewhere herein relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In the case of People v. Dilliard (298 N.Y.S. 296, 302, 252 Ap. Div. 125)

Court held that "It is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions that the rule in question applies. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation."

Emphasis Supplied.

15. At the cost of repetition, it is stated that the legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws.

However, every law enacted may not necessarily be tenable on the touchstone of the Constitution.

It is the sole jurisdiction of this Court, under the law and the constitution to look into the fairness and constitutionality of an enactment and even declare it non-est, if it is found to be in conflict with the provisions of the Constitution. Therefore, legislative competence alone is insufficient to render a law valid; it must also withstand the test of constitutionality to be enforceable. Failure to meet this standard renders the law invalid and unenforceable. Normally the courts make utmost efforts to save a piece of legislation from becoming invalid. However, in certain cases, the courts also apply, inter alia, the doctrine of severance to remove a piece of legislation that distorts the scheme of a parent law or deviates from the provisions of the Constitution. Reference here may be made to the cases of Shahid Pervaiz versus Ejaz Ahmad and others (2017 SCMR 206) and Younas Abbas and others versus Additional Sessions Judge, Chakwal and others (PLD 2016 Supreme Court 581).

16. Since the laws are enacted under a written Constitution and have to conform to the does and don'ts of the Constitution, neither prospective nor retrospective laws can be made to contravene the said prescribed limitations, particularly, the fundamental rights, independence of judiciary or its separation from the executive. An examination and empirical verification of the impugned law must demonstrate that it do not infringe upon any of the fundamental rights guaranteed by the Constitution. On the contrary, it not only facilitates their enforcement but also safeguards against their infringement by providing expeditious and inexpensive justice to the people at their doorstep.

It does not remotely impinge upon the independence of the judiciary, nor does it militate against the concept of its separation from the executive. To my understanding, the law must concerned with today's rights and not yesterday's. A legislature cannot legislate today concerning a situation that occurred 30 years ago and ignore the march of events and the constitutional rights accrued in the course of that period. That would be most arbitrary, unreasonable, and a negation of history.

Further, it is against the fundamental right of fair trial as enshrined in Article 10-A of the Constitution. Today's equals cannot be made unequal by saying that they were unequal 30 years ago and we will restore that position by making a law today and making it retrospective.

Constitutional rights, constitutional obligations, and constitutional consequences cannot be tampered with that way.

17. In view of the foregoing, it is declared that the provisions of subsection 2 of section 5 of the impugned Act providing the right of appeal to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of impugned Act are ultra vires under Article 8 of the Constitution as they offend Articles 9, 10, 10-A, 24 & 25 thereof and are arbitrary and unreasonable. Therefore, they shall be deemed non-est from the day of their promulgation.

18. To this extent, the petitions are allowed, accordingly.

Umar Ata Bandial

ORDER

There are before the Court three petitions under Article 184(3) of the Constitution. They challenge the constitutionality of federal legislation, being the Supreme Court (Practice and Procedure) Bill, 2023 ("Bill"). The Bill is on its way to becoming an Act of Parliament in terms of clause (3) of Article 75 of the Constitution. The legislation is assailed on various grounds. Mr. Imtiaz Rashid Siddiqui, learned counsel appearing in CP 6/2023, led the case for the petitioners.

2. Learned counsel submitted that the independence of the judiciary was a principle of fundamental constitutional importance, deeply grounded in the structures of the Constitution. It was an unassailable fundamental right. Referring in particular to the Supreme Court, learned counsel emphasized the centrality of the position of the Chief Justice of Pakistan to the Court.

Referring to the Bill itself learned counsel read out the various clauses thereof. It was submitted that in terms of the legislative process, with particular reference to Article 75(3), the Bill had travelled beyond the stage of being at the legislative stage. It had, rather, taken the position of a proposed Act that was bound to come into being with the efflux of time. Therefore, the Bill itself could be considered and the constitutionality or otherwise of its provisions examined by the Court.

The present petitions were maintainable and could not be faulted as premature. It was submitted that the passage of this legislation was defective at both the executive stage, when the Bill was conceived and approved by the Cabinet, and thereafter at the legislative stage in terms of its passage through the two Houses of Parliament and then, after its return by the President, its reconsideration in joint sitting. The reasons given by the President for returning the Bill were not properly considered. It was submitted that the legislation was a fraud on the Constitution.

3. Learned counsel submitted, referring to clauses 2 to 4 of the Bill, that a basic objection to the constitutionality thereof was that it sought to displace the Chief Justice and place the powers that lay with him alone with another body, the committee sought to be set up in terms thereof. It was submitted that the rule making power of the Court under Article 191 had been exercised and could not now be displaced by legislation of the sort contemplated. In this context learned counsel also referred to the power of each organ of the State, i.e., the legislative, executive and judicial branches, to exclusively regulate its own internal matters and procedures. It was submitted that the Bill was an intrusion into a sphere made exclusive to the Court and hence was ultra vires the Constitution. That field already stood occupied by the Supreme Court Rules, 1980 and therefore could not now be entered into upon by the legislature. As regards the appellate jurisdiction sought to be conferred on the Court, learned counsel submitted that it was beyond the competence of Parliament to do so, either in terms of Article 191 or entry No. 55 of the Federal Legislative List.

Learned counsel also prayed for interim relief by way of either the suspension of the Bill, or a direction to the President not to assent to it and/or an order to the Law Ministry not to notify the Act.

4. In order to properly appreciate the issues before the Court, the necessary background may be set out. On or about 29.03.2023, the Federal Cabinet gave its approval for legislation in the shape of the Bill aforementioned. The Bill was swiftly introduced in the National Assembly, and passed the same day. On transmission to the Senate it was passed without amendment the next day, i.e., 30.03.2023. The Bill was then presented to the President for his assent.

5. Article 75 of the Constitution provides in clause (1) that in the case of a Bill other than a Money Bill the President shall, within 10 days of its presentation either assent thereto or return it to Parliament "with a message requesting that the Bill, or any specified provision thereof, be reconsidered and that any amendment specified in the message be considered". The President, on or about 08.04.2023, returned the Bill to Parliament for it to be reconsidered. The reasons for the request were shared with the nation.

6. Clause (2) of Article 75 provides that if a Bill is returned to Parliament, it shall be reconsidered in joint sitting and if there passed (with or without amendment) by the requisite majority, "it shall be deemed for the purposes of the Constitution to have been passed by both Houses and shall be presented to the President, and the President shall give his assent within ten days, failing which such assent shall be deemed to have been given". It appears that Parliament in joint sitting reconsidered the Bill on 10.04.2023 and the same day passed it, it seems with some amendments.

The Bill so passed has been or is being presented to the President for his assent. Clause (3) of Article 75 provides as follows: "When the President has assented or is deemed to have assented to a Bill, it shall become law and be called an Act of Majlis-e-Shoora (Parliament)".

7. The first point to note is that the Bill has, in terms of the legislative processes set out above, reached the stage when it can be said with complete certainty that it reflects in entirety the ensuing Act of Parliament, the short title of which will be the Supreme Court (Practice and Procedure) Act, 2023 ("Act"). The reason is grounded in clauses (2) and (3) of Article 75. The march towards becoming a statute, and the passage from Bill to Act, is (at most) merely a matter of time. Neither the President nor (so it would seem) Parliament itself can change its content in the slightest nor divert this course.

8. It follows that though the Bill is not yet law it is nonetheless, with exactitude, that what will have the force of law, when the Act comes into being. Therefore, it can be considered and examined even at this stage. It is possible even now, as the Bill moves seamlessly through time towards becoming the Act, to consider whether what Parliament seeks to do passes muster constitutionally. We are of the view that such a consideration can be carried out prima facie and tentatively.

9. The Bill prima facie seems to be open to question on the constitutional plane on several grounds which, inter alia, raise issues of a serious nature in relation to the independence of the judiciary.

Such independence is deeply rooted in the fabric of the Constitution and forms an integral part of the structure of fundamental rights. Indeed, it is itself one such right. Any legislative effort that interferes with, or impinges on, the same should be subjected to close scrutiny. The Bill on its face expressly states that it has been enacted in terms of Article 175(2) and Article 191. Article 191 provides as follows: "Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court". At first impression (subject to what is stated below), it seems that whatever can be done by legislative endeavor under Article 191 is something that the Court can itself do in exercise of the rule-making power conferred by the same Article.

This is one of the contexts in which we are called upon to examine various provisions of the Bill.

10. The Bill, in clauses 2 to 4 (set to become correspondingly numbered sections), seeks to regulate the manner in which causes, matters or appeals before the Court are to be heard and, in particular, the Benches that are to hear and decide the same. On first impression the Bill appears to be premised on the approach that Article 191 purportedly sets up a hierarchy in relation to the practice and procedure of the Court. On this view the Constitution is obviously at the top, followed by "law" and then the rules made by the Court itself. This hierarchical structure prima facie subordinates the rules made by the Court to "law" and therefore, the Supreme Court Rules, 1980 ("Rules") to the incoming Act. The regulation of the matters laid out in clauses 2 to 4 purports to trump anything contained in the Rules. The Bill seeks to reinforce this in clause 8 (soon to become s. 8) by giving overriding effect to its provisions over not only any "rules" but also any judgment of any court, including this Court. Prima facie, this approach is a serious encroachment upon, interference with and intrusion into the independence of the judiciary.

11. Prima facie there is another and more fundamental aspect that ought, even at this preliminary stage, be kept in mind for understanding Article 191. The principle involved may be explained by adapting for present purposes a dictum from one of the most famous cases of American constitutional law (McCulloch v Maryland 17 US 316 (1819)): the power to regulate involves the power to destroy. The thing susceptible to destruction here is the independence of the judiciary.

Can the legislature, in the shape of a power claimed in terms of Article 191, have any such competence? The very existence of any such power needs to be determined, and not simply its application to this or that situation. It is not a matter of the power, in a given case, being exercised benignly or for purposes claimed as salutary (as appears to be professed for clauses 2 to 4). That is not the essence of the matter. For the next interference (i.e., regulation) may be less benign, and the next even more removed from benignity, while the next may slip positively into hostility. "A question of constitutional power can hardly be made to depend on a question of more or less."

And this is all the more so when it is a matter of fundamental rights, as it is with the independence of the judiciary. Such an approach would be antithetical to the very concept of the fundamental right, potentially striking at its very root. Interference with fundamental rights is kept beyond legislative and executive incursion unless expressly permissible (in the shape of articulated reasonable restrictions). Any intrusion in the practice and procedure of the Court, even on the most tentative of assessm ents, would appear to be inimical to the independence of the judiciary, no matter how innocuous, benign or even desirable the regulation may facially appear to be.

Prima facie therefore, when the Bill and the Act that is soon to come into being, is examined on the anvil of the most fundamental principles that underpin the Constitution, it can be regarded as seriously wanting in constitutional competence.

12. The Bill also (in clause 5, soon to become s. 5) purports to confer a new appellate jurisdiction on the Court in exercise of legislative power under Article 191. However, it is highly doubtful whether Parliament can do this, since a right of appeal is not merely a matter of practice or procedure but is a substantive right. It would therefore seem, at first sight, that the appellate jurisdiction now sought to be conferred is beyond any competence conferred by Article 191, whether on the Court itself or any "law" purported to be made by Parliament. If the conferment of appellate jurisdiction is considered in terms of a legislative competence available otherwise to Parliament one must turn to entry No. 55 of the Federal Legislative List ("List"). On a tentative examination of this constitutional grant it would seem that it, firstly, expressly excludes this Court from the power of Parliament to legislate as regards the "jurisdiction and powers" of courts in relation to the List, and secondly, allows for the enlargement of the jurisdiction of the Court only if it is "expressly authorized by or under the Constitution". There appears to be no authorization by or under the Constitution, let alone an express one, as allows Parliament to confer an appellate jurisdiction on the Court of the sort now sought to be created.

13. We are here concerned with the independence of the judiciary, and in particular this Court, in institutional terms and according to the mandate of the Constitution. Issues of public importance with regard to the enforcement of fundamental rights are involved which require consideration and decision by the Court.

14. This brings us to the question whether it would be appropriate to make any interim order in relation to the present matter. In Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265 the Full Court (17 member Bench) observed (at para 164, pg. 451) that "ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc...." (emphasis supplied). In our view, the facts and circumstances presented here are extraordinary both in import and effect. Prima facie the contentions raised disclose that there is a substantial, immediate and direct interference with the independence of the judiciary in the form of multiple intrusions, in the guise of regulating the practice and procedure of this Court and conferring upon it a jurisdiction that appears not to be permissible under any constitutional provision. Such intermeddling in the functioning of the Court, even on the most tentative assessm ent, will commence as soon as the Bill becomes the Act.

15. Notices be issued to the respondents in all three petitions. Notice also to the Attorney General for Pakistan under O. 27A CPC. Notices also to the Supreme Court Bar Association through its President and the Pakistan Bar Council through its Vice Chairman. Notices also be issued to the following political parties who may, if they so desire, appear through duly instructed counsel: Pakistan Muslim League (N) (PML (N)), Pakistan Peoples Party Parliamentarians (PPPP), Pakistan Tehreek e Insaf (PTI), Jamiat Ulema e Islam (JUI), Jamaat e Islami (JI), Awami National Party (ANP), Muttahida Qaumi Movement (MQM), Balochistan Awami Party (BAP) and Pakistan Muslim League

(Q) (PML (Q)).

16. To come up on 02.05.2023 at 11:30 a.m.

ORDER

One of the learned Members of the Bench (Mr. Justice Shahid Waheed) is unwell and has not held Court today. Accordingly, the remaining seven learned Members of the Bench met the learned counsel for the parties in the Ante Room of the Court for a Chamber hearing. The Bench inquired from the learned Attorney General for Pakistan about the progress made on rationalizing the provisions of the Supreme Court (Practice and Procedure) Act, 2023 ("Act") and on curing the overlap between its provisions and those of the Supreme Court (Review of Judgments and Orders)

Act, 2023 ("Review Act").

2. The learned Attorney General informed the Bench that the preparatory and drafting work in the foregoing matters had begun but legislative work could not be undertaken on account of the Budget Session of Parliament that is to commence on 09.06.2023. Thereafter, Parliament will take a short recess for Eid-ul-Azha. Accordingly, Parliament shall have time to start work on the Act and the Review Act in the month of July 2023. He, therefore, sought further time for the requisite legislative work to be completed. The request is allowed.

3. Adjourned. Re-list in July 2023.

ORDER

Mr. Mansoor Usman Awan, learned Attorney General for Pakistan has on behalf of the Federation completed his submissions on CMA No. 3166 of 2023 requesting for hearing of the present petitions by the Full Court. He also assures that the transcript of the debates of Parliament as noted in our order dated 02.05.2023 shall be filed in Court by tomorrow.

2. Mr. Salahuddin Ahmed, ASC for PML (N) has partly argued the case in aid of his CMA No. 3199 of 2023 seeking the same relief. Come up for further submissions by him and other counsel on 01.06.2023.

Syed Mansoor Ali Shah, J.- I have read the judgment authored by Hon'ble the Chief Justice and agree with the same. There are, however, some points argued by the learned counsel for the parties that I want to address. Hence, this note.

Introduction

2. In the realm of public institutions, particularly within the hallowed halls of the Supreme Court, the principle of collegial working stands as a cornerstone for ensuring justice, fairness, and the larger good of the people who seek its intervention. The concentration of ultimate administrative powers in the hands of a single individual, such as the Chief Justice, runs counter to the ideals of democratic governance and judicial fairness. It is imperative that such powers, including crucial decisions on case allocations, be exercised collectively, harnessing the diverse perspectives and wisdom of all justices. This approach not only democratizes the decision-making process but also reinforces the integrity and impartiality of the court. Embracing collegiality in administrative decisions ensures that the court's functioning transcends the outdated notion of a 'one-man show,' reflecting a more inclusive, transparent, and equitable judiciary that truly serves the public interest.

It would be hard to overestimate how important civility and collegiality are to the proper functioning of our legal system, and more specifically of our courts. Nothing can be resolved in society without the ability to be civil and collegial. The stakes are high, and our ability to listen carefully, to express our ideas respectfully, and to collaborate for the greater good are more important than ever.^[45]

3. The pivotal question involved in the present case as to the legislative competence of Parliament to enact the Supreme Court (Practice and Procedure) Act 2023 ("Act") revolves around the interpretation of the phrase "subject to law" as used in Article 191 of the Constitution of the Islamic Republic of Pakistan ("Constitution") and the scope of entries 55 and 58 of the Federal Legislative List as provided in the Fourth Schedule to the Constitution.

Interpretation of the phrase "subject to law" as used in Article 191

4. Let me first take up and discuss the meaning of the phrase "subject to law" as used in Article 191 and then the scope of entries 55 and 58. Article 191 is cited here for ease of reference:

191. Rules of Procedure.

Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.

(Emhasis added)

A bare reading of Article 191 shows that it confers the power on the Supreme Court to make rules of its practice and procedure and makes that power "subject to the Constitution" as well as "subject to law". No one can say that the phrase "subject to law" just happened to be there in Article 191 accidentally without any meaning; though opinions may differ, as they are, on what it actually means. On its meaning, the learned counsel who argued before us took divergent positions and advanced extensive arguments to convince the Court, of their respective viewpoints. To those who argued for the validity of the Act, it means the law enacted by Parliament on the matter of practice and procedure of the Supreme Court, as the Act is; while those who argued against the validity of the Act understand it as being some "substantive law" which operates as a limitation on the power of the Supreme Court to make rules, in that if the Supreme Court makes a rule of its practice and procedure which conflicts with a statute enacting substantive law, in such an event the rule would fall because it conflicts with a substantive law.

5. Some of the learned counsel also argued, though half heartedly, that the "law" referred to in Article 191 includes the common law, i.e., the case law. I would say, the term "law" has, no doubt, been used in its generic and wider sense in some of the Articles of the Constitution,^[46] where it includes the common law; but when used along with the term "Constitution",^[47] as in Article 191, it means as per my understanding the "statutory law" only. So, we can say that in Article 191 the phrase "subject to law" means subject to statutory law, i.e., the law made by the legislature. This point, however, does not need any detailed discussion, for all agree that the term "law" wherever used in the Constitution does include the statutory law. So, one thing is clear and certain: the phrase "subject to law" in Article 191 of the Constitution at least means that the court in making rules of its practice and procedure acts subject to statutory law.

6. Once it is conceded that the word "law" as used in Article 191 of the Constitution means, or at least includes, "statutory law", the bars are down; because if it means statutory law in any sense it means statutory law in all senses, substantive and procedural. The Constitution, in this regard, makes no limitation either expressly or by necessary implication by adding some adjectival distinction. If our effort is to find the actual meaning which the words, as written in the Constitution, were intended to convey, and not any preconceived meaning, any implicit limitation with the word "law" in the phrase "subject to law" cannot be justified. I, therefore, do not subscribe to the view that the phrase "subject to law" as used in Article 191 means subject to "substantive law" only. The word "law" includes law in all senses - procedural and substantive; enacted directly on the matter of practice and procedure of the Supreme Court or containing only incidental or ancillary provisions.

48.

7. Nonetheless, as per the provisions of Article 191 of the Constitution, the initial and primary power or function, whatever may it be called, to make rules of its practice and procedure is vested in the Supreme Court. But it is one thing to say that the Supreme Court has the primary authority to make rules of its practice and procedure, and to assert that this authority is exclusive to the Supreme Court and the Legislature has no authority to do so is quite another. Unless we ignore the phrase "Subject to the Constitution and law" in Article 191, or say it to be redundant, the assertion of exclusive authority of the Supreme Court in this regard is not sustainable. The power to deal with the subject of rules regulating its practice and procedure, no doubt, primarily vests in the Supreme Court but this is not exclusive to it. This rule-making power of the Supreme Court is subservient to the superior constituent power and ordinary legislative power of the Legislature. The rules made by the Supreme Court are to hold the field unless changed by the Legislature in the exercise of its constituent power under Article 238 or its legislative power under Article 142 of the Constitution. This is my understanding of the phrase "Subject to the Constitution and law" as used in Article 191 of the Constitution.

8. In this regard, I am supported by the same understanding of the learned Judges of this Court who had made the Supreme Court Rules 1980 ("Rules") in the exercise of rule-making power conferred by Article 191 of the Constitution. In several provisions of the Rules, they specifically mentioned the Rules to be subservient to law made by the Legislature. Some of the such provisions of the Rules are cited here for reference: Rule 1 of Order VI: Save as otherwise provided by law or these Rules, all applications shall be made before the Court on motion after notice to the parties affected thereby.

Rule 1 of Order XI: Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice.

Rule 6 of Order VII: Except as otherwise provided in these Rules or by any law for the time being in force, the Court fees set out in the Third Schedule to these Rules shall be payable on all documents mentioned therein.

Rule 4 (1) of order XXXV: Save as otherwise provided by law or by these Rules, the Chief Justice shall from time to time nominate Members from the Shariat Appellate Bench for hearing and disposal of cases...

(Emphasis added)

In the above rules, the phrases "save as otherwise provided by law" and "except as otherwise provided by any law for the time being in force" undoubtedly mean statutory law, i.e., the law made by the Legislature. The Rules made by the Supreme Court itself, on the administrative side, recognized that the Supreme Court's rule-making power is subject to legislative enactment. Thus, from the very beginning after the promulgation of the Constitution, the Judges of the Supreme Court understood that their rule-making power is susceptible to being superseded by legislative enactment, i.e., law. With respect, I am not able to understand how can the phrase "subject to law" be interpreted as meaning anything other than what the plain meaning of these words state.

Scope of entry 58 of the Federal Legislative List

9. Now, I take up for discussion entry 58 of the Federal Legislative List which, in my opinion, further establishes the legislative competence of Parliament to make law on the subject of practice and procedure of the Supreme Court. However, before going on to that, I want to briefly state my understanding, in general, of the scope of the powers of the legislative organ of the State.

10. The preamble of the Constitution in unequivocal terms proclaims that the sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust, and that the State shall exercise its powers and authority through the chosen representatives of the people. The people of Pakistan, as per this proclamation, are the trustees of the sovereign powers and authority of the State and they are to exercise those powers and authority through their chosen representatives. The Legislature is that organ of the State which consists of the chosen representatives of the people of Pakistan and is thus competent to exercise the sovereign powers and authority of the State on behalf of the people of Pakistan. It is through the legislature that the people enact laws of their choice to regulate all matters in the State; therefore, in enacting laws the legislature speaks for the people.

The legislative power which emanates from the people is plenary and embraces all law-making on every subject not prohibited by the Constitution either expressly^[49] or by necessary implication.

50. In a Federation like ours, the legislative powers are divided into two legislatures, i.e., the federal legislature (National Assembly and Senate) and the legislatures of the federating units (provincial assemblies). Because of this distribution of legislative powers, the questions may arise, as they often do, as to which legislature's domain a particular matter falls in; but it cannot be said without showing any express or implied prohibition in the Constitution that neither the federal nor the concerned provincial legislature have the legislative power on a particular subject. In a constitutional democracy, the scope of the powers of the legislative organ of the State, consisting of the chosen representatives of the people, unless prohibited or circumscribed by the Constitution itself, is very wide and they (Parliament or the concerned provincial assembly are competent to enact laws on all subjects.

11. In the present case, it is axiomatic that the provincial assemblies lack legislative competence to enact a law concerning the Supreme Court; for they cannot enact a law for the whole of Pakistan^[51] while the Supreme Court exercises jurisdiction over entire country. Parliament alone may legislate through which the people of Pakistan can enact laws on subjects that relate to the whole of Pakistan, i.e., the Federation, and the entry that covers generally all those matters which relate to the Federation is entry 58 of the Federal Legislative List. The provisions whereof are reproduced here for ease of reference:

58. Matters which under the Constitution are within the legislative competence of [Majlis-e-Shoora (Parliament)] or relate to the Federation.

(Emphasis added)

This is a residuary and general entry on the legislative power of Parliament, and its scope extends to and covers all those subjects which are not specifically mentioned in any other entry in the List but relate to the Federation and are thus beyond the domain of provincial assemblies' legislative power.^[52]

12. No provision in the Constitution has been pointed out to us that prohibits either expressly or by necessary implication the exercise of legislative power of Parliament on the subject of practice and procedure of the Supreme Court, but rather the specific mention of the phrase "subject to law" in Article 191 of the Constitution suggests otherwise and repels the argument of any implied prohibition that could have possibly been raised if this phrase had not been there. When instead of any such prohibition there is a clear permissibility expressed by using the phrase "subject to law" in Article 191, the subject of the practice and procedure of the Supreme Court squarely falls within the scope of entry 58 of the Federal Legislative List and with respect to it, Parliament is fully competent to make law in the exercise of its legislative power under Article 142(a) of the Constitution.

Therefore, I find that Parliament has competently enacted the Act on the subject of practice and procedure of the Supreme Court.^[53] Intra-court appeal - a matter of practice and procedure

13. One matter in the Act, however, requires further discussion. This is Section 5 of the Act that has provided for an intra-court appeal from an order of a bench of the Supreme Court, exercising original jurisdiction under Article 184(3) of the Constitution, to a larger bench. All learned counsel conceded before us that the provisions of the Act generally relate to the practice and procedure of the Supreme Court; opinions are, however, divided on the nature of Section 5 of the Act. Most of the learned counsel took it as a substantive provision that does not, according to them, fall within the scope of the practice and procedure of the Supreme Court. With respect, I hold a contrary view.

14. I must concede that the right of appeal is generally not a matter of mere procedure.

Nonetheless, in the cases^[54] this principle was enunciated, the courts were dealing with a right of appeal against a judgment or order of a lower court to a higher court, not with an intra-court appeal. During the hearing of arguments, I invited the attention of the learned counsel to the two judgments of the Lahore High Court that had dealt with the question as to the nature of an intra- court appeal and held that an intra-court appeal is not an appeal in the strict sense but an internal arrangement of the court for reviewing its own decision. The purpose was that they might further assist on this point and bring in notice of the Court any contrary view, if any, so that after examining the reasoning of divergent views, the Court could reach a better judgment. No case pronouncing the contrary view was, however, cited before the Court nor did any learned counsel advance arguments to establish that the reasoning of the Lahore High Court in holding the said view is in any manner flawed. The relevant extracts from the judgments of the Lahore High Court are reproduced here for reference: Muzaffar Din v. Allah Wasai PLD 1953 Lah 284 (DB)

A Letters Patent Appeal is not really an appeal in the strict sense. It may be more aptly described as an internal arrangement of the Court for reviewing its own decision given in the first instance by one member of the Court. The first as well as the second decision remains a decision of the Court.

Abdul Haq v. Saif-Ur-Rehman PLD 1968 Lah 478 (DB)

Even otherwise, in our opinion there is no question of any vested right of appeal in the appellant which was retrospectively taken away. In essence the Letters Patent Appeal under clause 10 is more in the nature of an intra Court arrangement designed to exercise control over its own affairs in the High Court. The appeal to the Division Bench against a judgment by the Single Bench is internal with the High Court and strictly speaking it is not in the nature of an appeal, to the superior Court against the decision of an inferior Court.

Therefore, it would not be correct to construe the provisions contained in clause 10 of the Letters Patent of the High Court of West Pakistan from the point of view of a right of appeal vested in the litigants.

Needless to clarify, it is an intra-court appeal that has been mentioned as Letters Patent Appeal in the above-cited observations, for it was called so at that time. The Division Benches of the Lahore High Court that held the above view were headed by the distinguished Judges of the time; three of whom later adorned the Bench of this Court as well. The Bench that decided Muzaffar Din was headed by S.A. Rehman and Muhammad Jan, JJ., while the Bench in Abdul Haq was comprised of Waheeduddin Ahmad, C.J. and Muhammad Akram, J. Having pondered upon the point profoundly, I find myself in agreement with their view.

15. No one can dispute that both the first decision by a bench of the court and the second decision in intra-court appeal by a larger bench of the court are the decisions of the same court rendered in the exercise of the same jurisdiction, i.e., in case of High Courts^[55] under the jurisdiction conferred by Article 199 of the Constitution and in case of this Court under the jurisdiction conferred by Article 184(3) of the Constitution. The provisions of law, like Section 5 of the Act or Section 3 of the Law Reforms Ordinance 1972, which provide for an intra-court appeal, do not confer any new jurisdiction. An intra-court appeal is an intra-court arrangement that regulates the practice and procedure of the court in the exercise of a particular jurisdiction. Such an arrangement can be made by a court itself in the exercise of its rule-making power or by the competent legislature in the exercise of its legislative power.

16. This position may be illustrated by an example: if a High Court, in the exercise of its rule-making power, provides that a petition filed under Article 199 of the Constitution shall be heard by a Bench of three Judges, no one can dispute that such power of the High Court relates to its practice and procedure; likewise if a High Court by its rules provides that such a petition shall be first heard by a Single Bench and then by a Division Bench in intra-court appeal, there can be no justifiable reason to deny that such exercise of its rule-making power also relates to the practice and procedure of the High Court. By the latter procedure, the High Court saves the time and labour of two of its Judges, to be utilised in dealing with other cases; for the Single Bench hears, discusses and decides the matter agitated in the petition and the work of the Division Bench lessens in intra-court appeal to only see whether there is any error in the judgment of the Single Bench and to correct the same, if any.^[56]

17. Similar is the position with the rule-making power of the Supreme Court: it may have in the exercise of its rule-making power provided that a petition filed under Article 184(3) of the Constitution would be heard by a Full-Court Bench, as some from among the legal fraternity had so demanded, or by a Bench of seven or more Judges, or that such a petition would be first heard by a Bench of three Judges and then by a larger Bench of four or more Judges. Both such rules would have fallen within the domain of regulating the practice and procedure of the Court in exercising one and the same jurisdiction. Instead of its hearing, in the first instance, by a Full-Court Bench or by a Bench of seven or more Judges, the hearing of a petition filed under Article 184(3) of the Constitution first by a Bench of three Judges and then by a Bench of four or more Judges in intra-court appeal clearly relates to regulating the practice and procedure of the Court in exercising its jurisdiction under Article 184(3) of the Constitution. The latter procedure would rather better serve the public interest as by such procedure the time and labour of many Judges of the Court is saved, to be utilised in dealing with other cases. Therefore, in my considered view, Section 5 of the Act also falls within the scope of the subject of regulating the practice and procedure of the Supreme Court, and Parliament has competently enacted it in the exercise of its legislative power under Article 142(a) of the Constitution read with entry 58 of the Federal Legislative List.

Interpretation of entry 55 of the Federal Legislative List

18. Even otherwise, if Section 5 of the Act is taken as the one that has conferred a substantive right of appeal on persons aggrieved of an order passed under Article 184(3) and thus enlarged the appellate jurisdiction of this Court, the same will then fall within the scope of entry 55 of the Federal Legislative List. The provisions of the said entry are reproduced here, for ready reference:

55. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers.

A bare reading of this entry shows that the matter of "enlargement of the jurisdiction of the Supreme Court" falls within the legislative competence of Parliament. By conferring intra-court appellate jurisdiction, Section 5 of the Act has exactly done this: it has enlarged the appellate jurisdiction of the Supreme Court. The point on which the learned counsel took divergent positions is that whether the phrase "to such extent as is expressly authorized by or under the Constitution" used in the entry is to be read with the part preceding thereto, i.e., with respect to the jurisdiction of other courts, or it is to be read with the part that follows it, i.e., with respect to the enlargement of the jurisdiction of the Supreme Court. I find that it is to be read with the preceding part. In this regard, I am fortified by the opinion of Ajmal Mian, CJ., expressed in Sh. Liaqat Hussain^[57]. His lordship observed: The above entry ^[55] indicates that the Parliament can legislate in respect of jurisdiction and power of all Courts except the Supreme Court with respect to any of the matters in the aforesaid list but to such extent as is expressly authorised by or under the Constitution. It also indicates that the jurisdiction of the Supreme Court can be enlarged but it cannot be curtailed.

In the same case, Irshad Hasan Khan, J., also in his concurring note read entry 55 in the like manner, thus: The above Entry ^[55] indicates that the Parliament can legislate in respect of jurisdiction and power of all Courts except the Supreme Court with respect to any of the matters in the aforesaid List but to such extent as expressly authorised by or under the Constitution. Clearly, the jurisdiction of the Supreme Court can be enlarged but cannot be curtailed in any circumstances whatsoever.

It may, however, be mentioned here that Nasir Aslam Zahid, J., read the said qualifying phrase, in N.I.C.C. Corporation,^[58] with the latter part of the entry as to the enlargement of the jurisdiction of the Supreme Court. But this view seems to be solitary and does not find support, as in the case of Baz Muhammad Kakar,^[59] Iftikhar Muhammad Chaudhry, CJ., again read entry 55 in the same sense as was read by Ajmal Mian, CJ., thus: At this juncture, it may also be noticed that Entry 55 of the Federal Legislative List (Fourth Schedule to the Constitution) authorizes the Parliament to make law on jurisdiction and powers of all courts with respect to any of the matters in the said List to such extent as is expressly authorized by or under the Constitution.

Therefore, it can safely be concluded that the phrase "to such extent as is expressly authorized by or under the Constitution" used in entry 55 is to be read with the part preceding thereto, i.e., with respect to the jurisdiction of other courts, and not with the part that follows it, i.e., with respect to the enlargement of the jurisdiction of the Supreme Court. There is no constraint in the said entry as to the enlargement of the jurisdiction of the Supreme Court and the conferring thereon of supplemental powers. The only limitation is that Parliament cannot curtail the jurisdiction of the Supreme Court.

Retrospective effect of right of intra-court appeal

19. Although subsection (2) of Section 5 of the Act has not obtained on its validity the support of the majority of this Bench, I want to say a few words on it before closing my discussion on Section 5.

20. Subsection (2) of Section 5 of the Act provides that the right of intra-court appeal shall also be available to an aggrieved person against whom an order has been made under Article 184(3) of the Constitution prior to the commencement of the Act. We all know that a legislature that is competent to make a law also has the power to legislate it retrospectively and can by legislative fiat even take away vested rights or affect past and closed transactions.^[60] When the legislature gives retrospective operation to the law enacted, the party affected thereby cannot plead infringement of his rights as a ground for declaring the law invalid.^[61] Our Constitution only bars retrospective legislation on criminal liabilities, not on civil rights and obligations.^[62] However, whether or not subsection (2) of Section 5 of the Act has, in fact and in effect, affected vested rights or past and closed transactions is a different question, which I find now unnecessary to decide upon.

Infringement of fundamental rights - a self-contradictory stance

21. The Hon'ble Chief Justice has held in his judgment that the Act does not in any manner compromise the independence of the judiciary but rather it does the very opposite in ensuring the enforcement of fundamental rights and strengthening the independence of the Judiciary. I fully agree with this finding of his lordship and am of the considered view that devolving two^[63] of the administrative powers of the office of the Chief Justice to the Committee of three Judges, which also includes the Chief Justice, does not in any manner infringe the independence of the judiciary nor does the provision of a right of intra-court appeal affect the right of access to justice. Further, I want to underline another aspect of the challenge made to the validity of the Act on this ground.

22. Almost all the learned counsel who argued against the constitutional validity of the Act admitted that the provisions of the Act would bring more transparency in the working of this Court and improve the fair and efficient administration of justice by it. Their contention basically was that such provisions should have been made by this Court in the exercise of its rule-making power under Article 191 of the Constitution, not by Parliament through the enactment of the Act. In essence, they objected that a wrong body has made these provisions, not that the provisions are wrong. If it is so as they say, their stance that the provisions of the Act have infringed the fundamental rights becomes self-contradictory and does not survive; for such provisions would not have infringed any of the fundamental rights if they had been included in the Rules of this Court, then cannot they do so while they are included in the Act. It amounts to blowing hot and cold in the same breath if one says that such provisions added in the Rules of the Court would have been perfectly valid on the touchstone of fundamental rights but are invalid when they have been enacted in the Act.

Separation of powers vis-a-vis checks and balances

23. In support of the said stance, some of the learned counsel arguing against the validity of the Act also referred to the doctrine of separation of powers between three organs of the State (legislature, executive and judiciary) and their independence in their respective domains. In so referring, the learned counsel failed to appreciate that the doctrine of separation of powers does not stand alone but is interlinked with the doctrine of checks and balances.

24. The separation of powers, no doubt, serves as a foundational principle in constitutional governance, delineating distinct functions among the three organs of the State: the legislature entrusted with making laws, the executive with implementing laws, and the judiciary with interpreting and applying laws. All three organs of the State play their respective roles to achieve the common goal, i.e., the rule of law. Each organ operates independently within its designated sphere, without undue influence or interference from the others. This separation aims to prevent the concentration of power in any one organ of the State and safeguards against tyranny by ensuring that no organ becomes too powerful. For, '[t]he accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'^[64]

25. Concomitant with the doctrine of separation of powers is, however, the doctrine of checks and balances. It acknowledges that while each organ operates independently, there should be some mechanism to restrain each organ within the limits of its power and to counteract whenever such limits are exceeded. It is through checks and balances that each organ is empowered to monitor and, if necessary, undo the actions of the others, ensuring that no organ exceeds its constitutional authority. The very strength of the separation of powers is thus dependent on the checks and balances, making no organ absolutely unchecked. Therefore, in essence, the separation of powers and the checks and balances are intertwined concepts that reinforce the stability and integrity of a constitutional democracy; they provide a framework where each organ is both empowered and limited, fostering both cooperation and accountability.

26. It is also important to emphasize that although the three organs of the State are separate, equal and coordinate, they are after all integral parts of one State. Operating as parts of a single entity, these organs cannot function in isolation or within watertight compartments. For the State to effectively serve its people, each organ should find cooperation from the other two. Confrontations arising from clashes in constitutional authority are rarely in the public interest and should be avoided whenever possible. Instead, the guiding principles of good governance, i.e., mutual understanding, respect and self-restraint, should be pursued. These principles serve as the lubricants that facilitate the smooth functioning of the constitutional machinery of governance and foster an environment where the collective welfare of the public takes precedence.^[65] In this regard, 'a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.'^[66] Legislative intervention - a check on the rule-making power of the Court

27. As stated above, under Article 191 of the Constitution, the initial and primary power to make rules for regulating its practice and procedure is vested in the Supreme Court. The power vested in the Legislature to enact a law on this subject is, to my understanding, like a check on the rule-making power of the Supreme Court. I find that the constitution-makers intended to give the Court, in the first instance, the authority to make the rules regulating its practice and procedure and leave to the Legislature the authority to intervene only when it is necessary to do so in the public interest, with the belief that such necessity will seldom arise and that the Legislature will exercise its authority with the restraint that is befitting to the relations between the two organs of the State. The final authority on the subject is, thus, allocated to the Legislature, which is directly responsible to the people. So far as arising of the necessity of enacting the provisions that are included in the Act, in the public interest, is concerned, such necessity was voiced by almost all segments of the legal fraternity and is well documented.^[67] Question of maintainability of petition and scope of Section 3 of the Act

28. Next, I want to deal with the contention of some of the learned counsel as to the invalidity of Section 3 of the Act and their reliance in this regard on my two orders^[68] passed on chamber appeals filed against the administrative orders of the Registrar of this Court under the Rules. I would reproduce the provisions of Section 3 of the Act here for the convenience of reference: Any matter invoking exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the Committee [comprising the Chief Justice and two most senior Judges] constituted under section 2 for examination and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter.

(Emphasis added)

It was argued that in the said orders, I held that the issue as to the maintainability of an appeal or petition cannot be decided by the Registrar in the exercise of its administrative powers under the Rules nor can it be decided by a Judge hearing an administrative appeal against an administrative order of the Registrar. If it is so as held by me, it was argued, then how can an administrative Committee decide the question of maintainability of a petition under Article 184(3) of the Constitution under Section 3 of the Act? At first blush, I must concede, the argument appears attractive but it does not survive closer scrutiny.

29. Section 3 of the Act has used the words "any matter", not "a petition", in relation to invoking original jurisdiction under Article 184(3) of the Constitution nor has it used the words "suo motu" or "on its own". Therefore, there is an ambiguity as to the true meaning and scope of those words that calls for a judicial interpretation until the legislature explains it by adding some explanation to Section 3 of the Act or making the language thereof more clear by amendment. The matter of ambiguity is whether the words "any matter" used in Section 3 of the Act include both the petitions filed under Article 184(3) of the Constitution and the suo motu invoking of original jurisdiction under Article 184(3) of the Constitution, or they only mean the latter.

30. It is by now well-accepted that in case of doubt or difficulty in ascribing proper meaning to a provision or a word in a provision of law, the Statement of Objects and Reasons in the Bill introduced for the enactment of that law may also be looked into, to ascertain the intention of the Legislature.^[69] Given this principle, when we see the Statement of Objects and Reasons in the Bill that was introduced in the National Assembly for the enactment of the Act, we find therein this statement: Whereas, the exercise of original jurisdiction by the Supreme Court under clause (3) of Article 184 of the Constitution has been a subject of discussion by various forums with respect to invoking of suo motu powers, constitution of benches and the absence of right of appeal.

(Emphasis added)

The above statement greatly helps remove the ambiguity and identifies the intention of the Legislature in enacting Section 3 of the Act. It shows in unequivocal terms that it was "invoking of suo motu powers" in relation to the exercise of original jurisdiction of the Supreme Court under Article 184(3) of the Constitution that the Legislature intended to deal with. This intention of the Legislature is further evident from the matter described next in the above statement, i.e., the constitution of benches. Both the powers of suo motu invoking original jurisdiction^[70] and constituting benches^[71] were earlier being exercised by one person, the Chief Justice; it is these administrative powers that have now been conferred on the Committee comprising three persons, i.e., the Chief Justice and the two most senior Judges - nothing more nothing less. Neither the Chief Justice was earlier competent, or used, to decide the maintainability of the petitions filed under Article 184(3) of the Constitution, nor can the Committee do so under Section 3 of the Act. My orders referred to by the learned counsel, therefore, do not conflict in any manner with such scope of Section 3 of the Act.

31. There is, however, one more thing that I want to underline in this regard. The ratio of the judgment passed by a five-member Bench of this Court in SMC No.4/2021^[72] as partially modified by Section 3 of the Act is that now the Committee comprising the Chief Justice and two most senior Judges is the sole authority by and through which the jurisdiction of this Court under Article 184(3) of the Constitution can be invoked suo motu; no Judge or Bench of this Court can do so. This is the law of the land to date; it must be applied and complied with in letter and spirit. The Benches of this Court hearing the petitions filed under Article 184(3) of the Constitution should, therefore, as a first step in the proceedings ask the petitioner to show how he has an interest in the matter agitated in the petition. If he fails to do so, the petition should be referred to the Committee to decide upon the question of whether or not it finds appropriate to invoke the jurisdiction of the Court suo motu in the matter agitated in the petition. The Benches of this Court hearing such petitions must be watchful that a petitioner who has at all no interest in the matter may not be allowed to indirectly frustrate the object of Section 3 of the Act merely by filing a petition under Article 184(3) of the Constitution. It is a well-settled principle of law that what cannot be done directly (per directum) is not permissible to be done indirectly (per obliquum).^[73] Status of benches constituted and decisions made by them during the suspension of the Act

32. Lastly, I want to address another submission of some of the learned counsel who argued against the validity of the Act, i.e., if the validity of the Act is upheld by the Court, the constitution of Benches by the then Hon'ble Chief Justice and the decision made by those Benches during the period of suspension of the operation of the Act may be protected under the doctrine of past and closed transactions.

33. To avoid this question, I had earlier expressed my view that until the question of the constitutionality of the Act was decided, the cases invoking the original jurisdiction of this Court under Article 184(3) of the Constitution or that which involved the interpretation of the constitutional provisions should be adjourned or heard by a Full-Court Bench.^[74] Nonetheless, I have now thought over the question as it has actually arisen and the ramifications of its answer in either way, in light of the cases where this Court espoused the doctrine of past and closed transactions. The principle that I gathered from reading such cases^[75] is that the acts done in accordance with the law prevailing at the time of their doing are generally protected under this doctrine. The operation of the Act having been suspended by an eight-member Bench of this Court, the then Hon'ble Chief Justice constituted the Benches in accordance with the law that was prevailing at that time, i.e., Order XI of the Rules. One may argue that the Court should not have suspended the operation of the Act, but cannot deny the fact that it was indeed suspended. So when applying the said principle to the question under consideration, we find that the act of constituting Benches by the then Hon'ble Chief Justice should be protected unless some exceptional circumstances may justify departure from the principle. No one from among the learned counsel who argued this case before us presented or pointed out any of such exceptional circumstances.

34. When the inconvenience or injustice likely to occur due to applying or non-applying the doctrine of past and closed transactions is measured on the principle of proportionality, the scales tilt in favour of following the above principle rather than the exception thereof; for a great amount of public time had been spent in hearing and deciding the cases by the Benches of this Court constituted by the then Hon'ble Chief Justice. I would therefore apply the doctrine of past and closed transactions to the acts of constitution of benches and decisions of the cases by those benches during the period of suspension of the operation of the Act.

35. However, in order to give effect to the provisions of Sections 4 and 5 of the Act to a possible extent, the review petitions filed against orders passed in jurisdiction under Article 184(3) should be treated as appeals, on applications made in this regard, with permission to file additional grounds of challenge and dealt with accordingly under Section 5 of the Act while the review petitions filed in other cases that fall within the category mentioned in Section 4 of the Act may be fixed for hearing before the Benches comprising not less than five Judges of the Court. This course, in my view, would best serve the public interest.

36. Since I have addressed herein some points that are not included in the leading judgment authored by the Hon'ble Chief Justice, let this be circulated among my learned colleagues who joined in para 1 of the short order of the Court in sustaining the constitutional validity of the Act.

Muhammad Ali Mazhar, J.-- By means of our short order dated 11.10.2023, and for reasons to be recorded later, by a majority of 10 to 5 the Supreme Court (Practice and Procedure) Act, 2023 ("the Act") was sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), and to this extent the petitions were dismissed. In unison, by a majority of 8 to 7, granting a right of appeal with retrospective effect was declared to be ultra vires the Constitution, while the conferral of a prospective right of appeal was held to be intra vires the Constitution by a majority of 9 to 6.

2. Though I have advocated and reinforced the majority view with regard to the legitimacy and constitutionality of the Act, but in tandem I have declared the retrospective/retroactive right of appeal conferred under sub-section (2) of Section 5 of the Act ultra vires the Constitution to the extent of the retrospective application thereof. In order to explicate the aforementioned position, I am adding separate reasons in aid of the short order and the same are segregated into two limbs, i.e. (i) concurring analysis for judicial comity pertaining to the declaration of a segment of the Act as intra vires, and (ii) dissenting analysis with regard to declaring the right of filing appeal with retrospective effect ultra vires. For convenience, my reasons are categorized into the following headings: Sr.

No.Subject Reference

1. Legislative Competence (para 3 to para 10)

2. Doctrine of Intra Vires and Ultra Vires (para 11 to para 13)

3. Retroactive or Ex Post Facto Right of Appeal (para 14 to para 17)

4. Distinction between Articles 184 and 199 of the Constitution(para 18)

5. Doctrine of Reading Down (para 19 to para 21)

6. Change of Counsel in Review Petition (para 22)

7. Master of the Roster (para 23 to para 24)

8. Effect of Act on Decided Cases (para 25)

9. Hearing by Full Court (para 26)

1. Legislative Competence

3. According to the mandate and command of Article 141 of the Constitution, the Majlis-e- Shoora (Parliament) may, subject to the Constitution, make laws for the whole or any part of Pakistan and a Provincial Assembly may make laws for the Province or any part thereof; whereas under Article 142 of the Constitution, the Majlis-e-Shoora (Parliament) has exclusive powers to make laws with respect to any matter in the Federal Legislative List. Article 175 of the Constitution accentuates the establishment and jurisdiction of courts, including the Supreme Court of Pakistan, the High Court for each Province, the High Court of Islamabad, and such other courts as may be established by law, with the rider and qualification that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Last but not least, Article 191 of the Constitution elucidates that, again subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. While construing and analyzing Article 142 of the Constitution in this interrelated context, Entries No.55 and 58 of the Federal Legislative List provided in the Fourth Schedule to the Constitution ("Federal Legislative List") cannot be disregarded or marginalized as they have direct nexus with the controversy emanating and stemming from the aforesaid petitions.

"55. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers."

"58. Matters which under the Constitution are within the legislative competence of [Majlis-e- Shoora (Parliament)] or relate to the Federation".

4. While interpreting the Constitution, it is to be read as a whole without obliterating or annihilating the other provisions to ensure the rule of harmony. To understand its primordial and elemental commandments, and the language used in various Articles, it is necessary to consider the historical background and the textual and structural substratum for its literal interpretation with liberal enforcement. It is a well settled exposition of law that a written constitution is, in essence, a form of statute which needs to be interpreted liberally and read holistically as an organic document which contemplates the trichotomy of powers between the three organs of the State, namely, the Legislature, the Executive, and the Judiciary. The doctrine of pith and substance places considerable emphasis on figuring out the distinct attributes of constitutional provisions, and the doctrine of purposive interpretation lays down a duty upon the courts to interpret the statute or the Constitution keeping in mind the purposefulness for which the provision in question was legislated while adopting a result-oriented approach, rather than construing it in a restrictive or stringent sense. According to Salmond on Jurisprudence (12t ed.) by P. J. Fitzgerald, M.A., at page 132, interpretation or construction is the process by which the courts seek to ascertain the meaning or intention of the legislature through the medium of the authoritative forms in which it is expressed.

5. The litmus test for gauging legislative competence is unambiguously stated under Article 141 of the Constitution, i.e. that the Parliament, subject to the Constitution, is authorized to promulgate the laws for the whole or any part of Pakistan, and also possesses powers under Article 142 of the Constitution to make laws with respect to any matter enumerated in the Federal Legislative List.

The Constitution plainly lays down under Article 175 that no Court shall have any jurisdiction unless conferred on it by the Constitution or by or under any law. So far as Article 191 is concerned, it is quite visible that, subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. A glimpse at the statement of objects and reasons for the Act in question depicts that the exercise of original jurisdiction by the Supreme Court under clause (3) of Article 184 of the Constitution, invocation of suo motu jurisdiction, constitution of benches, and the absence of a right of appeal remained under discussion at different strata and echelons and certain reservations were expressed in this regard. Therefore, in order to streamline and restructure some procedural intricacies, and to ensure the right to a fair trial and due process of law as enshrined under Article 10A of the Constitution, as well as provide the remedy of an Intra Court Appeal, the Parliament promulgated the Act pursuant to Article 175(2) read with Article 191 of the Constitution. For all intents and purposes, I have no hesitation orh reluctance in holding that the Parliament can make laws in relation to the Federal Legislative List.

As earlier observed, Entry No.55 of the Federal Legislative List is germane to the Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in the List and, to such extent as is expressly authorised by or under the Constitution, the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers. In contrast, Article 175 explicates that no Court shall have any jurisdiction unless conferred on it by the Constitution or by or under any law. The simple dictionary meaning of the word enlargement used in Entry No.55 is to make larger or wider, increase the size or extend in scope, intensify, make more comprehensive, expand, amplify or broaden [Ref: Shorter Oxford Dictionary (6 ed.), Vol. I, page 836]. Whereas, in juxtaposition, according to Words and Phrases (Permanent ed.), Vol. 23A, (pages 181 & 211), (1) "Jurisdiction" refers to court's power to adjudicate any issue or cause submitted to it; "practice" or "procedure" refers to manner in which power to adjudicate is exercised [Sheldon v.

Powell, 125 So. 258, 263, 10 Fla. 782]; (2) "Jurisdiction" is power to hear and determine a cause while "procedure" is the mode of proceeding by which a legal right is enforced [Snow v. Cincinnati St. Ry.

Co., 75 N.E.2d 220, 222, 80 Ohio App. 369]; (3) "Jurisdiction of court" means power or authority, conferred upon a court by constitution and laws, to hear and determine causes between parties and to carry its judgments into effect, and this character of Jurisdiction cannot be conferred upon a court by consent of the parties [McBride v. McBride, Tex.Civ. App., 256 S.W.2d 250, 254]; and (4)

"Jurisdiction of a court" is that power which is conferred upon it by law and by which it is authorized to hear, determine, and render final judgment in an action and to enforce its judgment by legal process [Jacubenta v. Dunbar, 198 N.E.2d 674, 675, 120 Ohio App. 249].

6. It is a well-known principle that the entries in the legislative lists represent fields of legislation which must receive the broadest and most expansive interpretation, and are construed to encompass all ancillary or subsidiary matters which can reasonably be said to be comprehended in them. In case of discord or overlap with other entries, the rule of harmonious construction is applied to reconcile the conflict for giving effect to each of the entries. The items mentioned in the list cannot be read in a narrow or restricted sense but rather should be given a wide and liberal interpretation without constricting it with technical considerations, and each general word should be held to extend to all ancillary or subsidiary matters which can reasonably be said to be comprehended in it. In the case of M/s Elahi Cotton Mills Ltd. and others v. Federation of Pakistan thr. Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) it was held that the entries in the Legislative List of the Constitution are not powers of legislation but only fields of legislative heads. The allocation of the subjects to the lists is not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue. An entry in the Legislative List must be given a very wide and liberal interpretation. Similarly, in the case of Government of Sindh thr. Secretary, Health Department and others v. Dr. Nadeem Rizvi and others (2020 SCMR 1), this Court held that the legislative lists must be liberally construed and given the widest possible meaning and amplitude. In this regard, reference may be made to the judgment reported as M/s Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802) in which this Court, while declaring the Industrial Relations Act, 2012 to be intra vires the Constitution, extensively considered case law from the Indian and Pakistani jurisdictions regarding interpretation of legislative lists in a constitution and laid down the following principles of interpretation:- i. The entries in the Legislative Lists of the Constitution are not powers of legislation but only fields of legislative heads; ii. In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words; iii. While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense;th iv. Each general word in an entry should be considered to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it; v. If there appears to be apparent overlapping in respect of the subject-matter of a legislation, an effort has to be made to reconcile the Entries to give proper and pertinent meaning to them; vi. A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same field a nullity; vii. Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; and viii. After considering the legislation as a whole in pith and substance, it has to be seen as to with respect to which topic or category of legislation in the various fields, it deals substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way.

7. There was much debate regarding the right of an Intra Court Appeal, and it was repeatedly argued that the same cannot be conferred through an act of Parliament, but requires a constitutional amendment. As a comparative study, I pored over the Constitution of India to survey their legislative process and through this exercise I found that the subject-matter of laws made by Parliament and by the Legislatures of States is provided under Article 246 whereby the Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (Union List), while for the matters enumerated in List II (State List), the Legislature of any State has exclusive power to make laws for such State or any part thereof; and for the maters enumerated in List III (Concurrent List), both the Parliament and the Legislature of any State have powers to make laws. Entry No.77 of List I (Union List) of the Seventh Schedule to the Constitution of India pertains to the "Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt of such Court); and the fees taken therein; persons entitled to practise before the Supreme Court". Under the aforesaid law-making powers, the Parliament of India promulgated the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 on 9th August, 1970. In the matter presently before us, the Parliament has, by virtue of the Act, made some procedural and substantive provisions which the Parliament was competent to legislate within the purview and premise of Articles 141, 142 and 175 of the Constitution, read with Entries No.55 and 58 of the Federal Legislative List. Entry No.55 of Federal Legislative List was discussed and deliberated in the following dicta laid down by this Court as under:-

1. Baz Muhammad Kakar and others v. Federation of Pakistan thr. Ministry of Law and Justice and others (PLD 2012 SC 923)

"34. At this juncture, it may also be noticed that Entry 55 of the Federal Legislative List (Fourth Schedule to the Constitution) authorizes the Parliament to make law on jurisdiction and powers of all courts with respect to any of the matters in the said List to such extent as is expressly authorized by or under the Constitution. Thus, the said Entry on the one hand limits the legislative power of the Parliament to the making of any law on the jurisdiction and powers of the Supreme Court, and on the other hand empowers the Parliament to make law for enlargement of the jurisdiction of the Supreme Court and the conferring of supplemental powers.

(...)

36. Under Article 70 of the Constitution, the Parliament is authorized to make laws with respect to any matter in the Federal Legislative List by adopting procedure laid down in the Constitution. Entry No.55 of the Fourth Schedule, in terms of Article 70(4), prescribes that laws can be promulgated pertaining to jurisdiction and powers of all courts, except the Supreme Court, with respect to any of, the matters in this List and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction (emphasis provided) of the Supreme Court, and the conferring thereon of supplemental powers. Under this Entry, the Constitution maker consciously separated the Supreme Court from all other courts. A plain reading of the words of this Entry, particularly, the portion, where emphasis has been provided, not only creates distinction between the Supreme Court and other courts, but also speaks in respect of enlargement of the jurisdiction of the Supreme Court and conferring of supplemental powers. The literal rule of interpretation of the Constitution and statutes, also known as the golden rule of interpretation, is that the words and phrases used therein should be read keeping in view their plain meaning. Reference in this behalf may be made to the case of Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz (PLD 2011 SC 260), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254), Kamaluddin Qureshi v. Ali International Co.

(PLD 2009 SC 367), Pakistan through Secretary Finance v. M/s Lucky Cement (2007 SCMR 1367), Federation of Pakistan through Secretary Ministry of Finance v. Haji Muhammad Sadiq (PLD 2007 SC 67), Mushtaq Ahmed v. Secretary, Ministry of Defence (PLD 2007 SC 405), Syed Masroor Shah v. State (PLD 2005 SC 173), Federation of Pakistan v. Annnar Textile Mills (Pvt.) Ltd. (2002 SCMR 510), World Trade Corporation v. Excise and Sales Tax .4 Appellate Tribunal (1999 SCMR 632) and State Cement Corporation of Pakistan Ltd. v. Collector of Customs, Karachi (1998 SCMR 2207).

37. We believe that there could not be any other view except that the Constitution. favours enlargement of the jurisdiction of the Supreme Court and conferment of supplemental powers. The enlargement of jurisdiction is to be understood under the Constitution that the jurisdiction of the Supreme Court may be extended territorially like adhering to Articles 246 and 247 as well as to confer further judicial powers and also conferring supplemental powers to expand the scope of the powers, which it is already exercising.(...)"

2. Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263)

Per Irshad Hasan Khan, J., in his concurring note: "43. As to the plea that paragraph (6) to Article 63A of the Constitution excludes the judicial review of the Courts and militates against Item No. 55 of the Federal Legislative List, which envisages that the jurisdiction of the Supreme Court could not be curtailed, it may be observed that Item No. 55 in the Federal Legislative List applies to ordinary legislative powers and not to Constitutional amendment. Clause (2) of Article 175 of the Constitution itself provides that no Court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

Nevertheless, independence of Judiciary which is guaranteed by the Objectives Resolution which is now the substantive part of the Constitution cannot be abridged or abrogated."

3. The Province of Punjab and another v. National Industrial Cooperative Credit Corporation and another (2000 SCMR 567)

"16. Coming now to the present Constitution of 1973, it may be observed that, according to Mr. Abid Hassan Minto, learned counsel for the Government of Punjab, in view of Article 175(2) of the Constitution, under which jurisdiction can be conferred on any Court including the Supreme Court by or under any law, in relation to matters in respect of which Provincial Legislatures have power to make laws (including Cooperative Societies), additional/supplemental jurisdiction or powers can be conferred on the Supreme Court by the Provincial Legislatures as the "law" mentioned in Article 175(2) includes a Provincial law and additional/supplemental jurisdiction or powers in the form of an appeal to the Supreme Court under section 22 of the impugned legislation was being conferred on the Supreme Court in respect of a matter on which Provincial Legislatures have exclusive jurisdiction under the Constitution to enact laws. Learned counsel also relied on the observation made by the Sindh High Court in the case of Inamur Rehman v. Federation of Pakistan (PLD 1977 Karachi 524). Passage relied upon appears at page 532 of the report and it reads as follows:-- Item 55 of the Federal Legislative List in the Interim Constitution brings within the scope of the Federal Legislature the jurisdiction and powers of the Courts, except the Supreme Court, in respect of matter within its legislative field, and even in respect of the Supreme Court, it conferred powers upon the Central Legislature to enlarge its jurisdiction and confer supplemental powers therein. So far, the Permanent Constitution is concerned, Article 175(2) thereof expressly provides that 'no Court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.' It is, thus, permissible for the appropriate Legislature, acting within the scope of its Constitutional powers, to take away or enlarge the jurisdiction of any Court or enact that a particular matter shall not be determined by normal Courts, except that the Legislature cannot, abridge the Constitutional jurisdiction and powers of the superior Courts save by way of amendment of the Constitution.

In our view there is no ambiguity in interpreting Entry No. 55 of Part I of the Federal Legislative List (Fourth Schedule) of the 1973 Constitution. Such Entry read with Articles 175(2) and 142(a) of the Constitution confers exclusive powers on the Parliament to make laws for enlargement of jurisdiction of the Supreme Court or conferring on its supplemental powers.

If Entry No. 55 was not there in the Federal Legislative List, it could be argued that under Article 175(2) of the Constitution, in respect of matters relating to Cooperative Societies exclusively falling under the competence of the Provincial Legislature, a law can validly be made by a Provincial Legislature enlarging jurisdiction of the Supreme Court and conferring on its supplemental powers but Article 175(2) is not to be interpreted in isolation. It has to be read and interpreted along with Article 142(a) and the Entries in the Legislative Lists. Under Entry No. 55 of the Federal List, Federal Legislature is competent to make laws regarding jurisdiction and powers of all Courts (except the Supreme Court) with respect to any of the matters in such list. The other part of this entry makes the Federal Legislature competent to make laws enlargement of the Supreme Court and the conferring thereon the supplemental powers with the proviso that this is to such extent as is expressly authorised by or under the Constitution. Powers and jurisdiction conferred on the Supreme Court by the Constitution can neither be interfered with or varied nor taken away by Legislature. However, jurisdiction of the Supreme Court can be enlarged and supplementary powers can be conferred on the Supreme Court by "law" in view of the Article 175(2) of the Constitution, and Entry No. 55 read with Article 142(a) of the Constitution leave no doubt that such enlargement of the jurisdiction and conferment of supplementary powers can only be done through law made by Federal Legislature."

8. It is pertinent to mention that the provision of a right of appeal to the Supreme Court through an ordinary act of Parliament is not a unique or novel idea and has, in the past, been supported by various pieces of legislation, as listed below, and such rights of appeal, or leave to appeal, are in addition to the jurisdiction conferred by Article 185 of the Constitution: Sr. No. Law Section Conferring Appeal

1. Competition Act, 2010 44. Appeal to Supreme Court.-- Any person aggrieved by an order of the Competition Appellate Tribunal may prefer an appeal to Supreme Court within sixty days.

Newspaper Employees (Conditions of Service) Act, 197313A. Appeal from sentence of Tribunal. -- Any person convicted and sentenced by the Tribunal under section 55 of the Ordinance to imprisonment for any period not less than six months may, with the leave of the Supreme Court, prefer an appeal to that Court.

3. Contempt of Court Ordinance, 2003 (See: Article 204 (3) of the Constitution)19. Appeal.---(1) Notwithstanding anything contained in any other law or other rules for the time being in force, orders passed by a superior Court in cases of contempt shall be appealable in the following manner:- --

(ii) in a case in which the original order has been passed by a Division or larger Bench of a High Court an appeal shall lie to the Supreme Court; and

(iii) in the case of an original order passed by a Single Judge or a bench of two Judges of the Supreme Court an intra-Court appeal shall lie to a Bench of three Judges and in case the original order was passed by a Bench of three or more Judges an intra-Court appeal shall lie to a Bench of five or more Judges.

Legal Practitioners and Bar Councils Act, 197348. Appeal to the Supreme Court.__ Any person aggrieved by an order made by the disciplinary committee of the Pakistan Bar Council under subsection (3) of section 46 or subsection (2) of section 47 or a final order of a Tribunal of the Pakistan Bar Council, may, within sixty days from the date on which the order is communicated to him, prefer an appeal to the Supreme Court which may pass such order thereon as it may deem fit.

5. Elections Act, 2017 9. Power of the Commission to declare a poll void.-- (5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court.

155. Appeal against decision of Election Tribunal.-- (1) Any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to an Assembly or Senate may, within thirty days of the date of the decision, appeal to the Supreme Court. 202. Enlistment of political parties. -- (6) A political party which has been refused enlistment or whose enlistment has been cancelled under this section may, within thirty days of the refusal or cancellation of enlistment, file an appeal before the Supreme Court.

(7) Where the Government declares that a political party has been formed or is operating in a manner prejudicial to the sovereignty, or integrity of Pakistan, it shall within fifteen days of such declaration refer the matter to the Supreme Court.

9. The minutiae of Article 191 of the Constitution enunciate that subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court. The interpretation of the phrase "subject to" was a source of heated debate during the course of the proceedings in this case and the learned counsel articulated a plethora of diverse interpretations thereof. The indispensable and imperative duty of the Court in interpreting a law is to discover the intention of the legislature in enacting the law and then endeavor to interpret the statute in order to promote or advance the object and purpose of the enactment. In the case of Dada Soap Factory Limited v. Commissioner of Income Tax, Central Zone B, Karachi (1987 PTD 420), the Court held that the words subject to' are not descriptive words but impose conditions and obligations, whereas in the case of Islamic Republic of Pakistan thr. Secretary, M/o Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan, MNA (PLD 1976 SC 57), this Court held that the expression subject to' has also been defined as "conditional upon or dependent upon" or exposed to (some contingent action), being under the contingency. In the case of Gram Panchayat, Gorakhpur vs. Khushali Dindayal Sahu (AIR 1973 MP 19), the learned court held that the words "subject to rules made in this behalf" or similar words are commonly employed in enactments where the legislature contemplates framing of rules in exercise of delegated powers, and this expression has to be interpreted according to the context in which it is employed. In each case the scheme and the provisions of the Act have to be examined. Where power is conferred and machinery for its exercise already exists, it can be said that the expression "subject to rules made in this behalf" has merely an overriding effect so that if any such rules are made, the exercise of the power shall be subject to such rules, but where a special power is conferred and there is nothing to regulate its exercise, then that expression connotes that the power can be exercised only when the rules are framed and in accordance with them. To put it differently, in the former case the rules will be considered to supplement the section, whereas in the latter case they will complement the section. In the former case, the law is complete even without the rules such that the rules, if any framed, would have overriding effect and, in that case, the power will be exercised only in accordance with them, but in the latter case the law is incomplete and was deliberately left so by the legislature to be completed by delegated legislation pursuant to the relevant rule-making powers. The phrase "subject to" signifies both these meanings i.e. (1) liable or exposed to: likely to have; and (2) dependent or conditional on.

10. Procedural law sets out to activate the process and course of action through which the lawsuit moves on and the way in which court proceedings are undertaken and it also regulates and oversees the procedures employed. Substantive law, on the other hand, denotes the statutory obligations which relate to the subject matter, proclaims the relevant rights and obligations, and regulates the demeanor of an individual or government. Jeremy Bentham, an English philosopher, jurist, and social reformer first coined the terms substantive laws and adjective laws (i.e. procedural laws) in his book The Works of Jeremy Bentham while describing the procedure and course taken for the execution of laws in 1843. However, he stated that in jurisprudence both procedural and substantive laws should co-exist, and neither can exist without the help of the other. Similarly, Thomas Holland, the British jurist, in his book The Elements of Jurisprudence defined substantive law as the laws which specify the way the laws will aid to protect rights, whereas adjective laws or procedural laws are the laws which provide the methods of aiding and protecting the rights. According to Salmond, as stated in Introduction to Jurisprudence (3 ed.

Reprint, 2011) by Dr. Avtar Singh & Dr. Harpreet Kaur, the law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions, jus quod ad actiones pertinet, which includes all legal proceedings, civil or criminal. Salmond has drawn the following distinctions between substantive law and procedural law: (i) Substantive law determines the conduct and relations of the parties inter se in respect of the matter litigated, whereas the procedural law regulates the conduct and relations of Courts and litigants in respect of the litigation; (ii) Substantive law deals with the ends which the administration of justice contemplates while the procedural law deals with the means and instruments by which the ends of administration of justice are to be attained; (iii) The question as to what facts constitute a wrong is determined by the substantive law, while what facts constitute proof of a wrong is a question of procedure; (iv) Substantive law defines the rights whereas the law of procedure defines the modes and conditions of the application of one to the other; and (v) Substantive law relates to the matter outside the Courts, whereas the procedural law regulates affairs inside the Courts [Ref: Judgment authored by me, Meeru Khan v. Mst. Naheed Aziz Siddiqui and others (PLD 2023 SC 912)].

2. Doctrine of Intra Vires and Ultra Vires

11. The learned counsel for the petitioners collectively argued that the whole of the Act is ultra vires the Constitution. The terms `intra vires' and `ultra vires', both Latin phrases, are diametrical opposites. Ultra vires is an expression which means "beyond the powers". If an act entails legal authority and it is done with such authority, it is symbolized as "intra vires", that is, within the precincts of powers, but if it is carried out shorn of authority, it is "ultra vires". It is well settled that the constitutionality of any law can be scrutinized and surveyed and the law can be struck down if it is found to be offending the Constitution due to an absence of law-making and jurisdictive competence, or found in violation of the fundamental rights enshrined therein. At the same time, it is an established precept of the interpretation of laws, one backed by judicial sagacity and prudence in the form of numerous precedents of the superior Courts, that the law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation unless it is ex facie violative of a constitutional provision. An action of an authority is "intra vires" when it falls within the limits of the power conferred on it but "ultra vires" if it goes outside this limit. The function of judiciary is not to legislate or question the wisdom of the legislature in making a particular law, nor can it refuse to enforce a law. However, where practicable, the doctrine of severability may be used to preserve those parts of the statute that are constitutional, as discussed hereinbelow. The following principles can be deduced from therd aforementioned dicta for striking down or declaring a legislative enactment void or unconstitutional:

1. Baz Muhammad Kakar and others v. Federation of Pakistan and others (PLD 2012 SC 923), it was held that the doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire Act void. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. The words of a statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest the contrary. The superior courts time and again pronounced that any law which is inconsistent and in contravention of fundamental rights or which took away or abridged such rights, is void, to the extent of such contravention. Paramountcy of fundamental right is recognized by the Constitution limiting the powers of State organs to the extent that what had been conferred by the Constitution as fundamental rights could not be taken away or abridged by the State. What had been guaranteed by the Constitution as a fundamental right could not be annihilated or taken away in the garb of reasonable restrictions. The infringement of fundamental rights can be in many ways.

2. Federation of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 Supreme Court 1026), it was held that a colourable legislation is that which is enacted by a legislature which lacks the legislative power or is subject to Constitutional prohibition.

3. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 Supreme Court 416), it was held that vires of an Act can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown. Where the Act is not ex facie discriminatory but is capable of being administered discriminately then the party challenging it has to show that it has actually been administered in a partial, unjust and oppressive manner.

4. Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265), it was held that a duty is cast upon the Supreme Court that it should normally lean in favour of constitutionality of a statute and efforts should be made to save the same instead of destroying it.

Principle is that law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments, unless ex facie, it is violative of a constitutional provision. Where a statute is ex facie discriminatory but is also capable of being administered in a discriminatory manner and it appears that it is actually being administered to the detriments of a particular class in particular, unjust and oppressive manner then it has been void ab-initio since its inception.

5. Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others, (2018 SCMR 802), the Court held that when a law was enacted by the parliament, the presumption was that parliament had competently enacted it and if the vires of the same are challenged, the burden is always laid upon the person making such challenge to show that the same was violative of any of the fundamental rights or the provisions of the Constitution. Court should lean in favour of upholding the constitutionality of a legislation and it was thus incumbent upon the Court to be extremely reluctant to strike down laws as unconstitutional.

6. Lahore Development Authority thr. DG and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739), this Court summarized the rules applicable while determining the constitutionality of a statute as follows:

(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two;

(ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity;

(iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

(iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds;

(v) Court should not decide a larger Constitutional question than was necessary for the determination of the case;

(vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution;

(vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality;

(viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and

(ix) Mala fides should not be attributed to the Legislature.

[Ref: Province of East Pakistan v. Siraj ul Haq Patwari (PLD 1966 SC 854); Mehreen Zaibun Nisa v.

Land Commissioner (PLD 1975 SC 397); Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901); Multiline Associates v. Ardeshir Cowasjee (1995 SCMR 362); Ellahi Cotton Mills Limited v.

Federation of Pakistan (PLD 1997 SC 582); Dr. Tariq Nawaz v. Government of Pakistan (2000 SCMR 1956); Mian Asif Aslam v. Mian Muhammad Asif (PLD 2001 SC 499); Pakistan Muslim League (Q) v. Chief Executive of Pakistan (PLD 2002 SC 994); Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719); Messrs Master Foam (Pvt.) Ltd. v. Government of Pakistan (2005 PTD 1537); Watan Party v. Federation of Pakistan (PLD 2006 SC 697); Federation of Pakistan v. Haji Muhammad Sadiq (PLD 2007 SC 133); and Iqbal Zafar Jhagra v. Federation of Pakistan (2013 SCMR 1337)]

12. The contextual substratum of the Act is characterized by both procedural and substantive provisions. For example, Section 2 provides that every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a Bench constituted by the Committee comprising the Chief Justice of Pakistan and the two next most senior Judges, in order of seniority, and the decisions of the Committee shall be by majority. Whereas Section 3 postulates that any matter invoking exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the Committee constituted under Section 2 for examination, and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court which may also include the members of the Committee, for adjudication of the matter. While Section 4 provides that where interpretation of the constitutional provision is involved; the Committee shall constitute a Bench comprising not less than five Judges of the Supreme Court. In addition, thereto, Section 6 creates a right to appoint a counsel of choice for filing a review application under Article 188 of the Constitution, and Section 7 enumerates that urgent applications or applications filed for seeking interim relief shall be fixed for hearing within fourteen days from the date of its filing.

Besides dealing with the aforesaid procedural matters, a substantive right of filing an Intra Court Appeal has also been created under Section 5 of the Act.

13. The learned counsel for the petitioners remained unsuccessful in persuading me as to how the Act infringes or contravenes the fundamental rights of any person, or how the same is against the public interest. In order to complement and substantiate the plea of ultra vires, it was argued that the Act is against the independence of judiciary; poses an obstacle in the access to justice; constitutes dictation to the Supreme Court; clips off the powers and authority of the Chief Justice of Pakistan and is an intrusion into the internal affairs/management of the Apex Court. In my view such apprehensions are misconceived. The petitioners' counsel had further argued that once the Parliament is allowed to regulate the Supreme Court's internal working, powers and functions, then there is a strong possibility and likelihood that amendments of the same variety will be made to further intrude and encroach upon the independence and jurisdiction of this Court. In my approximation and farsightedness, if any such amendment is made, or attempted to be made, in order to compromise or impair the independence of the judiciary, or to disrupt or disturb the fair and free stream of administration of justice, or cause any hindrance in the access to justice, the Supreme Court, being the custodian of the law and the Constitution, is here to deal with the same and there is no cause for concern in this regard. At this moment, the entirety of judicial and administrative powers remains vested in the Supreme Court, and the advent of the Act neither involves any outside entity or any external element capable of disturbing or interfering with the internal working of this Court, nor does it affect any of the procedural matters or committee decisions of the Supreme Court. The superior Courts have time and again pronounced that any law which is inconsistent with and in contravention of fundamental rights, or which takes away or abridges such rights, is void to the extent of such inconsistency or contravention. In my perception (except to the extent of the right of Intra Court Appeal with retrospective effect, which aspect I will deal in the succeeding portion of my reasoning), the Act is neither hit by the doctrine of colourable legislation, nor is it ex facie discriminatory or violative of any constitutional provision, and it is well- settled that mala fides cannot be attributed to the legislature. In my view, the procedural stipulations and the conferral of a right of appeal with prospective effect do not violate any fundamental right, nor do they offend any provision of the Constitution. The Parliament has not curtailed the jurisdiction of this Court by dint of colourable legislation, rather the jurisdiction of this Court has been enlarged in the larger public interest by means of the Act. As stated previously, it is the duty of the Court to normally lean in favour of the constitutionality of a statute rather than destroying it. In the case of LDA v. Ms. Imrana Tiwana (supra) this Court further held that the power to strike down or declare a legislative enactment void has to be exercised with a great deal of care and caution. The courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive, but because it is bound by its oath to uphold, preserve, and protect the Constitution. It must enforce the Constitution as the supreme law, but this duty must be performed with due care and caution and only when there is no other alternative.

3. Retroactive or Ex Post Facto Right of Appeal

14. Now I would like to address Section 5 of the Act which provides a right of filing an Intra Court Appeal with retrospective effect. As aforementioned, the doctrine of severability permits the Court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, save for where the valid portion is so closely mixed up with the invalid portion that it cannot be separated without leaving an incomplete or motley remainder, in which case the Court can declare the entire act void. For the ease of reference, Section 5 of the Act is reproduced as under:

5. Appeal--. (1) An appeal shall lie within thirty days from an order of a Bench exercising jurisdiction under clause (3) of Article 184 of the Constitution to a larger Bench of the Supreme Court and such appeal shall, within a period not exceeding fourteen days, be fixed for hearing.

15. Indeed the finality of judgments ensures the culmination or conclusion of the judicial process, and the importance of this is aptly articulated in the Latin maxim, interest republicae ut sit finis litium, meaning thereby that it is in the interest of the state that there should be an end to litigation.

Providing for an appeal with retroactive effect would open a flood gate of cases which will have serious repercussions on already decided cases and would amount to a reversion to the status quo ante (the previously existing state of affairs), with no end in sight. Though some persons may feel aggrieved by the orders or judgments of this Court rendered prior to the promulgation of the Act, it is equally true that many persons were found to have benefited from the same, and such rights between the litigants or parties, now having been decided one way or the other, cannot be re-agitated at this juncture and the parties cannot now be repositioned in the state of affairs that existed previously or before the effective date of the Act. In Justice G.P. Singh s Principles of Statutory Interpretation (7t ed.), at page 372 to 373, a statement of the House of Lords in the case of L'office Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd is quoted in which it was observed that the question of fairness will have to be answered by taking into account various factors, viz., value of the rights which the statute affects; extent to which that value is diminished or extinguished by the suggested retrospective effect of the statute; unfairness of adversely affecting the rights; clarity of the language used by the Parliament and the circumstances in which the legislation was created. All these factors must be weighed together to provide a direct answer to the question of whether the consequences of reading the statute with the suggested degree of retrospectivity is so unfair that the words used by the Parliament cannot have been intended to mean what they might appear to say. The present Act does not provide any cut off or predetermined date under Section 5 to trigger the right of appeal, except for a vague and indeterminate statement that the right of appeal shall also be available to an aggrieved person against whom an order has been made under clause (3) of Article 184 of the Constitution, prior to the commencement of this Act. During the proceedings, I repeatedly queried the learned counsel supporting the Act, as well as the learned Attorney General for Pakistan ("AGP"), regarding the legitimacy and wisdom of providing the right of Intra Court Appeal with retrospective effect, and that too in such an imprecise and perplexing manner, however they could not satisfy me on this crucial point and failed to persuade me with any convincing argument. To this extent, Section 5 is totally uncertain, inarticulate and unintelligible, and fails to specify whether this right accrues from the coming into force of the 1973 Constitution, or from the date when the first case was decided by this Court under Article 184(3) of the Constitution, or any other specific date. Such a blanket or unbridled right of appeal will not only create chaos, but also necessitate the reopening of past and closed matters. It is a well settled exposition of law that on attainment of finality or conclusiveness, a party aggrieved by any such decision should mull over the remedies available to them to assail the decision within the framework of law and jurisdiction at that relevant time. The doctrine of res judicata is an integral limb of the principle of finality as a matter of public policy, and the main strength of this doctrine is that it endorses a fair-minded and open-minded administration of justice and prevents the abuse of process of the Court on issues which have attained finality and are consequently past and closed matters.

16. The moment a decision is final, either for the reason that no appeal was preferred, or an appeal was filed and subsequently dismissed by the Court, or no right of appeal is provided under the relevant legislation, then neither party will be permitted subsequently to challenge such decision inh order to relaunch the matter and argue it de novo. No doubt prior to this Act, no right of appeal was provided, but all those persons aggrieved in the past must have availed the right to file a review petition, and if these review petitions have been decided then it is not possible or feasible to provide a right of appeal to them and re-agitate the matter again. The word "retrospective", or an antedated, ex post facto or retroactive law, denotes that the law has been made effective since before the date of its passing. Bennion on Statutory Interpretation (7 ed.), at page 181 states with regard to the retrospective effect of law that the "principle is sometimes expressed in the maxim lex prospicit non respicit (law looks forward not back). As Willes J said in Phillips v.

Eyre retrospective legislation is "contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law." Whereas in Crauford's Statutory Construction, Chapter XXV (at pages 562-566 & 622), which is germane to Prospective and Retrospective Operation, it is stated, in short, that retroactive legislation is looked upon with disfavour, as a general rule, and properly so because of its tendency to be unjust and oppressive. There is a presumption that the legislature intended its enactments to be effective only in futuro. This is true because of the basic presumption that the legislature does not intend to enact legislation which operates oppressively and unreasonably. If perchance any reasonable doubt exists, it should be resolved in favour of prospective operation. In other words, before a law will be construed as retrospective, its language must imperatively and clearly require such construction. In the case of People v Dillard (298 N.Y.S. 296, 302, 252 Ap. Div.125) the Court held that "[i]t is chiefly where the enactment would prejudicially affect vested rights, or the legal character of past transactions that the rule in question applies. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation." The provision for extending the right of appeal retroactively does not even come within the ambit or dominion of curative statutes which are used by lawmakers to recuperate the prior enactment by rectifying any defect or omission. According to the Corpus Juris Secundum, Vol. 16 (Constitutional Law), at pages 1251-1252, a statute which merely creates or enlarges a remedy for an existing right, although retrospective, does not impair vested rights. No vested rights are impaired by a statute which creates a remedy for an existing right for which there has been no remedy. So acts providing a new remedy, or enlarging a remedy already existing, or repealing an exemption from liability in a particular form of remedy, although made to operate retrospectively, do not, per se, impair vested rights; but the legislature may not, under the guise of a remedial act, provide a particular remedy that will impair property rights vested before the passage of the Act [Ref: judgment authored by me, Controller General of Accounts, Government of Pakistan, Islamabad and others v. Abdul Waheed and others (2023 SCMR 111)].

17. In order to determine whether any beneficial, remedial or curative legislation has retrospective effect, the litmus test is to explore whether it is intended to clear up an ambiguity or oversight in the prevailing or standing law, and whether, in its pith and substance, it corrects or modifies an existing law or an error that interferes with the interpretation or application of the statute. Without a doubt, beneficial, remedial or curative legislation is meant to be clarificatory in nature, but if it has no such character or essence it cannot be deemed to be retroactive merely for the reason that it amounts to beneficial legislation. The retroactive application of curative legislation can be gauged and measured from the plain language and intention of legislature. It is by and large passed to supply a conspicuous omission or to elucidate misgivings as to the meaning of the previous law. The legal maxim nova constitutio futuris formam imponere debet, non praeteritis means a new law has to be prospective and not retrospective in its operation. The new law may affect the future but not theth past. Indeed, new laws are interpreted as functional and effective in the matters that arise after the enactment. Every statute which takes hold of or prejudices vested rights assimilated under existing laws, or contrives a new obligation or enforces a new duty, or characterises a new disability in respect of transactions already past and closed is presumed to have no retrospective effect. In other words, a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions, or facts or events that have already occurred and, instead of promoting or advancing the cause of justice, is creating consequential impediments or causing any disadvantage to any of the concerned parties. Moreover, the provisions of a statute cannot be interpreted in a way that would lead to the devastation of rights and liabilities that have accrued by means of past and closed transactions, therefore the right of Intra Court Appeal with retrospective effect as provided under Sub-Section (2) of Section 5 of the Act is against public policy, as well as the doctrine of finality and immutability of judgments; hence to such extent it is declared ultra vires.

4. Distinction between Articles 184 and 199 of the Constitution

18. In the original jurisdiction of the Supreme Court as provided under Article 184, and more particularly under sub-article (3), it is conveyed that, without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article. While under Article 199 of the Constitution, the High Courts may pass an order on the application of any aggrieved person and issue such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution, with the rider that, subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged. There is a vivid distinction between the two aforementioned Articles; it is quite obvious from the plain wording of the Articles, and the interpretation thereof, that the Supreme Court, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II of the Constitution is involved, has the power to make an order, while the High Court may pass an order on the application of any aggrieved person and issue such directions as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II, but the keywords "a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II" are noticeably missing from the jurisdiction of the High Court provided under Article 199 of the Constitution. So, in all fairness, direct petitions under Article 184(3) can only be filed if they involve a question of public importance with reference to the enforcement of any of the Fundamental Rights. It has been seen time and again that people, without approaching or invoking the jurisdiction of High Courts under Article 199 of the Constitution, prefer to approach this Court directly under Article 184(3) of the Constitution in the sense of concurrent jurisdiction without doing their due diligence regarding whether any question of public importance is involved with reference to the enforcement of any of the Fundamental Rights or not, and also without being mindful that the aforesaid jurisdiction of this Court is without prejudice to the provisions of Article 199 where such relief might have been granted by the High Courts, and in which scenario the remedy of filing an appeal before this Court under Article 185 of the Constitution would also remain intact and available for redress. It is a ground reality and indisputable fact that, in the past, the exercise of original jurisdiction under Article 184(3) of the Constitution was at times misemployed or extended beyond the sphere and domain of original jurisdiction. At this juncture, I dwell on the judgment of this Court rendered in the case of Independent Newspapers Corporation (Pvt.) Ltd. and another v. Chairman, Fourth Wage Board and Implementation Tribunal for Newspaper Employees, Government of Pakistan, Islamabad and 2 others (1993 SCMR 1533) in which it was held that the excessive use of lawful power is in itself unlawful. In the past, no right of appeal was provided to an aggrieved person except a feeble remedy of filing a review petition, but through the Act, a right of filing an Intra Court Appeal has been provided which provision, in my view, is in the larger public interest and is also expedient keeping in mind the rigors of Article 10A of the Constitution which is a paramount feature of the due process of law.

5. Doctrine of Reading Down

19. In my view, another important aspect which needs to be addressed and read down is the provision contained under Section 3 of the Act which elucidates that any matter invoking the exercise of original jurisdiction under Article 184(3) of the Constitution shall be first placed before the Committee constituted under Section 2 for examination, and if the Committee is of the view that a question of public importance with reference to enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is involved, it shall constitute a Bench comprising not less than three Judges of the Supreme Court which may also include the members of the Committee, for adjudication of the matter. This is perturbing for the reason that if the Committee administratively decides not to fix a particular matter before the Court because, in their point of view, no question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution is made out, then in that eventuality the matter ends without any further judicial scrutiny or order.

20. The primary aim of the Courts must be to pay attention to the objectives of the statute, and then proceed with an interpretation that lends support thereto; in essence adopting the purposive rule of interpretation. The rule of purposive interpretation of statutes originated in the 16t Century with the decision of the celebrated Heydon's Case ((1584) 76 ER 637) which laid down the keystone of the purposive rule of interpretation, that is, if the literal interpretation of any provision of law is not acceptable or leads to absurdity, then such provision may be interpreted in line with the object and purpose which the legislature had in mind while enacting the law. According to Maxwell on the Interpretation of Statutes (12t ed.), at page 228, where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftman's unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. While Bennion on Statutory Interpretation (4t ed.), at page 810, describes that a purposive construction of an enactment is one which gives effect to the legislative purpose by: (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.

21. It goes without saying that the law should not be in a limbo or an indeterminate state. The hallmark of a good law is that it ensures the provision of a proper remedy and does not leave litigants stranded with no recourse. Obviously, no appeal lies in Chamber before a single judge in terms of Supreme Court Rules, 1980 ("1980 Rules", or the "Rules") on the refusal of Committee to entertain a matter. Therefore, in my view, where the Committee refuses to entertain or fix a case, then in such a situation the matter should be fixed before the Court for judicial scrutiny regardingh h h whether any case is made out to exercise the original jurisdiction of this Court under Article 184(3) of the Constitution; and since the matter is taken up by the Committee on the administrative side, therefore, in case of refusal, the matter may be fixed before any available three-member bench, not including the members of the Committee, on the judicial side. The aim and object of the legislature, as gleaned from the provisions of the Act, is to, inter alia, ensure and provide for the fixation of cases and constitution of benches through a collegium in order to prevent the individualistic exercise of powers; but at the same time, if the collegium refuses to entertain any matter under Article 184(3) of the Constitution, there is no further remedy provided to challenge the same. As an ongoing and continuous sequence of events and processes that occur in succession from past through the present, and to the future, judges come and go after playing their innings, but this Court has perpetual seal and succession, therefore the law regulating the practice and procedure of this Court should be compatible with and suitable for all times, unless the Parliament subsequently repeals or modifies the same, or it is struck down by the Court. So, in my view, the present 1980 Rules may be amended to harmonize the provisions of the new Act with the pre- existing Rules of this Court. The golden rule of statutory interpretation provides that the words used should be interpreted harmoniously and congenially in line with the intention of the legislature and all the provisions should be read in unison, for the reason that the foremost stratagem of this doctrine is to preserve the effect of the statute within the precincts of law and within the dominion of Constitution, provided that the statute is mute and/or inarticulate and is capable of more than one interpretation.

6. Change of Counsel in Review Petition

22. Under Section 6 of the Act, a right has been accorded to appoint a counsel of choice for filing a review petition, which was not earlier permissible. Indeed, this Court has the power to review its judgment under Article 188 of the Constitution, subject to the provisions of any act of Parliament and any rules made by this Court. In the same parlance, Order XXVI of the 1980 Rules is germane to "Review Jurisdiction" whereby, subject to the law and the practice of the Court, this Court may review its judgment or order on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 ("CPC") and, in a criminal proceeding, on the ground of an error apparent on the face of the record. The prerequisite to filing a review application is that the Advocate signing the application shall specify, in brief, the points upon which the prayer for review is based and shall add a certificate in the form of a reasoned opinion that review would be justifiable in that particular case. Whereas, under Order XLVII, Rule 1, CPC, an aggrieved person may file an application for review of the judgment and order on the ground of discovery of new and important information or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Where the judgment under review is found to have directed the doing of something which is in conflict with the Constitution or law, then it will be the duty of the Court to amend such error. If the conclusion is wrong because something manifest has been ignored by the Court or the Court has not considered an important aspect of the matter, a review petition would lie, but a judgment cannot be reviewed merely because a different view could have been taken, rather a review petition would lie only when there is an alleged error in the judgment which is evident and can be established without elaborate arguments and where a glaring omission or patent mistake has crept in earlier by judicial fallibility. The Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them, nor does the doctrine of stare decisis come in the way, so long as the review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good, however grounds not urged or raised at the time of hearing the case cannot be allowed to be raised in review jurisdiction. No doubt, the Act extends a right to appoint a counsel of choice, but we cannot lose sight of the fact that review may be entreated only in instances or occurrences of errors in the judgment or order, floating on the surface of the record, with a substantial impact on the final outcome of the lis. This does not connote or entail a right of rehearing of the decided case where there is a mindful and thoughtful decision on the point(s) of law, as well as of fact. Every judgment articulated by the Courts of law is presumed to be a solemn and conclusive determination on all points arising out of the lis. Mere irregularities having no significant effect or impact on the outcome would not be sufficient to warrant the review of a judgment or order, however, if the anomaly or ambiguity is of such a nature so as to transform the course of action from being one in the aid of justice to a process of injustice, then obviously a review petition may be instituted for redressal to demonstrate the error, if found floating conspicuously on the surface of the record, but a desire of rehearing of the matter cannot constitute a sufficient ground for the grant of review which, by its very nature, cannot be equated with the right or remedy of appeal or rehearing merely on the ground that one party or the other conceived himself to be dissatisfied with the decision of the Court, nor can a judgment or order be reviewed merely because a different view could have been taken. So in all fairness, the right of changing or appointing new counsel of choice to file and pursue the review application/petition shall not be construed as allowing a rehearing of the matter, and the counsel so appointed should not attempt to reargue the whole case, or expect to start from scratch as an opportunity of rehearing to cure or supplant the lacunas, mistakes and/or oversights of the earlier counsel, and a mere repetition of old and overruled arguments through a different counsel would be insufficient and impermissible in this regard.

[Ref: M/s Habib and Company and others v. Muslim Commercial Bank and others (PLD 2020 SC 227); Engineers Study Forum (Regd.) and another v. Federation of Pakistan and others (2016 SCMR 1961); Government of Punjab and others v. Aamir Zahoor-ul-Haq and others (PLD 2016 SC 421); Haji Muhammad Boota and others v. Member (Revenue) BOR and others (2010 SCMR 1049); Sh. Mehdi Hassan v. Province of Punjab thr. Member, BOR and others (2007 SCMR 755); Abdul Rauf and others v. Qutab Khan and others (2006 SCMR 1574); Lt-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan (PLD 1962 SC 335); Land Acquisition Officer and Assistant Commissioner, Hyderabad v. Gul Muhammad thr. legal heirs (PLD 2005 SC 311); Board of Intermediate and Secondary Education, Lahore through Chairman v.

Bashir Ahmad Khan (PLD 1997 SC 280); Major (Retd.) Barkat Ali and others v. Qaim Din and others (2006 SCMR 562); Abdul Hakeem and others v. Khalid Wazir (2004 SCMR 1770); Suba thr. legal heirs v. Fatima Bibi thr. legal heirs and others (1996 SCMR 158); S. Sharif Ahmad Hashmi v.

Chairman, Screening Committee, Lahore and another (1978 SCMR 367); M/s Sajjad Nabi Dar & Co. v. The Commissioner of Income-Tax, Rawalpindi Zone, Rawalpindi (PLD 1977 SC 437); M/s M.

Y. Malik & Co. and 2 others v. M/s Spendlours International (1995 SCMR 922); M. Moosa v.

Muhammad and others (1975 SCMR 115); Engineers Study Forum (Regd.) and another v.

Federation of Pakistan and others (2016 SCMR 1961); Mirza Bashir Ahmad v. Abdul Karim (1976 SCMR 417); Wahajuddin and another v. Razia Begum etc. (1979 SCMR 241); Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363); Irshad Masih and others v.

Emmanuel Masih and others (2014 SCMR 1481); Justice Qazi Faez Isa and others v. President of Pakistan and others (PLD 2022 SC 119); Mukesh v. State (NCT of Delhi) ((2018) 8 SCC 149); Sow Chandra Kante and another v. Sheikh Habib ((1975) 1 SCC 674); Kamlesh Verma v. Mayawati and others ((2013) 8 SCC 320); Kerala SEB v. Hitech Electrothermics & Hydropower Ltd. ((2005) 6 SCC 651 at p. 656, para 10), M/s Thungabhadra Industries Ltd. v. Government of Andhra Pradesh thr. Deputy Commissioner, Commercial Taxes, Anantapur (AIR 1964 SC 1372); Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi ((1980) 2 SCR 650); Sajjan Singh v. State of Rajasthan ([1965] 1 S.C.R. 933, 948); G. L. Gupta v. D. N. Mehta ([1971] 3 S.C.R. 748-760); O. N.

Mahindroo v. Distt. Judge Delhi & Anr ([1971] 2 S.C.R. 11, 27); Chandra Kanta v. Sheikh Habib ([1975] 3 S.C.R. 933); and Delhi Administration v. Gurdip Singh Uban and others (AIR 2000 SC 3737).

7. Master of the Roster

23. It was emphatically argued by the learned counsel for the petitioners that the Chief Justice is the master of the roster, hence there is no need for any Committee to constitute benches of the Supreme Court. Undoubtedly the Chief Justice is the first amongst equals, or primus inter pares, but by virtue of his office, he has to discharge certain administrative duties and powers. In the statement of objects and reasons it is provided, inter alia, that the constitution of benches has been a subject of discussion at various forums. In the past as well some skepticism and reservations were expressed by certain quarters regarding the individualistic administrative powers of the Chief Justice as master of the roster. Consequently, the Act was promulgated to create a collegium system so that every cause, appeal or matter before the Supreme Court be heard and disposed of by a Bench constituted by the Committee comprising the Chief Justice of Pakistan and the two next most senior Judges in order of seniority. Prior to the Act, when there was no collegium system in place, it was obviously the Chief Justice who was the master of the roster and who was tasked with constituting benches and now, after the coming into force of the Act, this role has been assigned to the Committee which is now, for all intents and purposes, the master of the roster. Had the Chief Justice not been considered the master of the roster prior to this Act, there would have been no need to vest these powers in the Committee; it is obviously for this reason that, from now onward, the individual powers vesting in the Chief Justice have been neutralized and conferred to the Committee for settling the roster and managing the constitution of benches. Even in the High Courts, though the Chief Justice may be consulting some senior members of the administration committee, there is no collegium system under any law or rules and, resultantly, the roster of sittings is issued under the directive of the Chief Justice, being the master of the roster, and it is the Chief Justice who constitutes the routine benches and, if and when required, special benches as well. To conclude, the term master of the roster is not some newfangled or unique turn of phrase, rather it was an administrative assignment existing since time immemorial which has now been supplanted by the Act in favour of a collegium system. The role of the 'Chief Justice' as the master of the rosterhas also been a subject of discussion in the Supreme Court of India. In the case of Shanti Bhushan v. Supreme Court of India and others ((2018) 8 SCC 396), the Supreme Court of India held as under:- "12. There is no dispute, as mentioned above, that 'Chief Justice' is the Master of Roster and has the authority to allocate the cases to different Benches/Judges of the Supreme Court. The Petitioner has been candid in conceding to this legal position. He himself has gone to the extent of stating in the petition that this principle that 'Chief Justice' is the Master of Roster is essential to maintain judicial discipline and decorum and also for the proper and efficient functioning of the Court.

Notwithstanding this concession, it would be imperative to explain this legal position with little elaborations, also by referring to some of the judgments of this Court which spell out the scope and ambit of such a power.

13. The Petitioner has himself, in the petition, referred to a three-Judge Bench in State of Rajasthan v. Prakash Chand and Ors. [(1998) 1 SCC 1] held that the Chief Justice of the High Court is the Master of Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. The Court stated thus:

59. From the preceding discussion the following broad conclusions emerge. This, of course, is not to be treated as a summary of our judgment and the conclusions should be read with the text of the judgment:

(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.

(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.

(6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.

14. The same principle in Prakash Chand's case was applied as regards the power of the 'Chief Justice' and in the matter of Campaign for Judicial Accountability and Reforms v. Union of India and Anr. (2018) 1 SCC 196) five Judge Bench held:

6. There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand [State of Rajasthan v. Prakash Chand, [(1998) 1 SCC 1], it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the Roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand [State of Rajasthan v. Prakash Chand, [(1998) 1 SCC 1], the Chief Justice is the Master of the Roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.

Further, the Constitution Bench held:

7. The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the Master of the Roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.

15. There is a reiteration of this very legal position by another three Judge Bench judgment of this Court in Asok Pande v. Supreme Court of India through its Registrar and Ors.

12. Quite apart from the fact that the relief sought is contrary to legal and constitutional principle, there is a fundamental fallacy in the approach of the Petitioner, which must be set at rest. The Petitioner seeks the establishment of a binding precept under which a three judge Bench in the Court of the Chief Justice must consist of the Chief Justice and his two senior-most colleagues alone while the Constitution Bench should consist of five senior-most judges (or, as he suggests, three 'senior-most' and two 'junior-most' judges). There is no constitutional foundation on the basis of which such a suggestion can be accepted. For one thing, as we have noticed earlier, this would intrude into the exclusive duty and authority of the Chief Justice to constitute benches and to allocate cases to them. Moreover, the Petitioner seems to harbour a misconception that certain categories of cases or certain courts must consist only of the senior-most in terms of appointment.

Every Judge appointed to this Court Under Article 124 of the Constitution is invested with the equal duty of adjudicating cases which come to the Court and are assigned by the Chief Justice.

Seniority in terms of appointment has no bearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaks for the court (except in the case of a concurring or dissenting opinion). The Constitution makes a stipulation in Article 124(3) for the appointment of Judges of the Supreme Court from the High Courts, from the Bar and from amongst distinguished jurists. Appointment to the Supreme Court is conditioned upon the fulfilment of the qualifications prescribed for the holding of that office Under Article 124(3). Once appointed, every Judge of the Court is entitled to and in fact, duty bound, to hear such cases as are assigned by the Chief Justice. Judges drawn from the High Courts are appointed to this Court after long years of service. Members of the Bar who are elevated to this Court similarly are possessed of wide and diverse experience gathered during the course of the years of practise at the Bar. To suggest that any Judge would be more capable of deciding particular cases or that certain categories of cases should be assigned only to the senior-most among the Judges of the Supreme Court has no foundation in principle or precedent. To hold otherwise would be to cast a reflection on the competence and ability of other judges to deal with all cases assigned by the Chief Justice notwithstanding the fact that they have fulfilled the qualifications mandated by the Constitution for appointment to the office". (emphasis supplied)

24. I have no reservation in holding that, indeed, prior to the promulgation of the Act, the Chief Justice alone was the master of the roster, and without the issuance of the roster of sittings or the constitution of benches by him, no Judge or bench of Judges could embark on or assume any jurisdiction except for the cases assigned by the Chief Justice, however in order to mitigate and clip off the sole discretion of the Chief Justice, the Act was enacted and now, for all intents and purposes, the functions of the master of the roster which vested solely in the Chief Justice have now been assigned and shifted to the collegium comprising the Chief Justice and the two next most senior judges of this Court as the masters of the roster for issuing the roster of sittings and constituting benches after due deliberation.

8. Effect of Act on Decided Cases

25. The Act was made effective from 21.04.2023, while the aforesaid petitions were decided vide our short order dated 11.10.2023. In the intervening period, ad-interim orders were in field, therefore, in my view, all cases decided between 21.04.2023 and 11.10.2023 are protected in view of the dicta laid in the case of Malik Asad Ali and others v. Federation of Pakistan thr. Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161) and Sindh High Court Bar Association and others v. Federation of Pakistan thr. Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), and their conclusiveness shall not be vitiated or called into question on the ground that such benches were not constituted by the Committee under Section 2 of the Act.

9. Hearing by Full Court

26. During the midst of the arguments, it was further articulated by the learned counsel for the petitioners that if the case is heard by the Full Court, and the law is declared intra vires, then the petitioners would not be able to file an Intra Court Appeal for challenging the judgment. In my view, even at the time when the initial eight-member bench was constituted to hear the aforesaid petitions, the requisite number of at least nine judges was not available in the total strength of this Court to hear the Intra Court Appeal, if any filed, against the judgment rendered by the eight- member bench. However, when the present Chief Justice (Justice Qazi Faez Isa) assumed office, two practical options were available to him: either to reduce the size of the eight-member bench by reconstituting a five-member bench in order to preserve the right of appeal or, alternatively, to constitute the Full Court. Again, in my view, the honorable Chief Justice rightly constituted the Full Court to hear the all such petitions on a priority basis. Even at the initial stage of proceedings, the Full Court had been fervently requested by almost all the learned counsel, including the learned AGP. One more important aspect that must be kept in mind is that the matter before the Supreme Court pertained to the examination of the vires of the law regulating its own practice and procedure, so, in my view, it was compos mentis to constitute a Full Court for drawing on the collective wisdom of all the judges regarding the legislative competence and constitutionality of the Act which provides a right of Intra Court Appeal. Conversely, had the Act been declared ultra vires by a majority of the judges, then how could the Intra Court Appeal have been filed by those aggrieved persons supporting the law when the law providing the right of Intra Court Appeal was struck down by the Court and no longer existed (leaving only the remedy of review); so, in that particular scenario too, the situation would have been the same, therefore, when any particular lis has been decided by the Full Court with the collective wisdom of all the judges with various notes of assent and dissent, then the question regarding the deprivation of the right of Intra Court Appeal does not have much significance. Indeed, it was prudent and quite logical to constitute the Full Court to decide the legitimacy and future of the Act in question, rather than constituting the bench first with limited number of judges at the original side and then a larger bench on the appellate side. In my view, propriety demanded that this Court should first resolve the uncertainty regarding the future of the Supreme Court (Practice and Procedure) Act, 2023 as soon as possible, instead of gathering the wisdom and insight of judges in two phases in preference to the collective wisdom rendered by the Full Court.

Ayesha A. Malik, J.

[I]f we demand that our courts do things, we must give them the power to do things - we must set them free to do things. We must cease to prescribe the details of procedure by legislation.^[76] - Roscoe Pound (1926)

The Petitioners challenge the vires of the Supreme Court (Practice and Procedure) Act, 2023 (Act) and these Petitions in terms of the short order dated 11.10.2023 of this Court were dismissed by holding the Act to be constitutionally valid; however, to the extent of Section 5(2) of the Act, which granted right of an intra-court appeal against an order under Article 184(3) of the Constitution retrospectively, this was held to be ultra vires the Constitution as per the opinion of the majority.

77. We have read the opinion of the majority as contained in the judgment authored by Qazi Faez Isa, C.J., the concurring opinion authored by Syed Mansoor Ali Shah, J. and the separate opinions authored by Yahya Afridi, J., Muhammad Ali Mazhar, J. and Syed Hasan Azhar Rizvi, J. However, we find the Act in its entirety to be ultra vires the Constitution.

2. The dispute relates to the competence of Parliament to legislate on the subject of practice and procedure of the Supreme Court in the terms prescribed under the Act.

The Petitioners contend that Parliament is not competent to legislate on the subject of practice and procedure of the Supreme Court as this falls within the domain of Article 191 of the Constitution, which specifically requires the Supreme Court to make rules as to the same. The Petitioners contend that the Act undermines the independence of the judiciary as the practice and procedure of the Supreme Court is regulated by the Supreme Court Rules, 1980 (1980 Rules) which were formed by the Supreme Court itself, and the practice of this Court, in terms of Article 191 of the Constitution and the said Article does not give legislative competence to Parliament to make law on this subject. Specifically, with reference to the creation of an intra-court appeal against the orders under Article 184(3) of the Constitution, they argue that the original constitutional jurisdiction of this Court cannot be changed by way of ordinary legislation. Essentially, the argument is, if at all, an intra-court appeal is to be created, it must be by way of a constitutional amendment.

3. The Attorney General for Pakistan (AGP) along with counsel for the Respondents supported the competence of Parliament to make law on the subject of practice and procedure of the Supreme Court stating that Article 191 of the Constitution expressly allows Parliament to legislate with respect to the practice and procedure of this Court. They further submitted that Article 142 read with Entry 55 in Part I (Fourth Schedule) of the Federal Legislative List (FLL) allows Parliament to enlarge the jurisdiction of this Court. They argued that the impugned Act does not in any manner infringe upon the independence of the judiciary nor any fundamental right of the Petitioners as the intent of the law is to ease procedures of this Court which are onerous and give arbitrary powers to the Chief Justice of Pakistan (CJP) and also to create a right of appeal, which is a basic requirement to ensure due process.

4. As per its preamble, the Act provides for certain practices and procedures of the Supreme Court based on the principles of fair trial, due process and also prescribes a right of appeal. Section 2 of the Act specifically allows a three-member Committee to determine the constitution of benches for every cause, appeal or matter before the Supreme Court.^[78] With respect to the exercise of original jurisdiction of the Supreme Court, Section 3 of the Act provides that any matter invoking the original jurisdiction of this Court, under Article 184(3) of the Constitution, should be first placed before the Committee to determine whether a question of public importance with reference to the enforcement of any fundamental right is involved, and if so, then a bench comprising of at least three Judges of this Court to adjudicate upon the matter, which may include the Committee members. As far as matters related to the interpretation of the Constitution are involved, Section 4 of the Act requires a bench of not less than five Judges of this Court who must hear the case.

Section 5 of the Act creates a right of appeal against any order on a petition under Article 184(3) of the Constitution and further allows this right of appeal to be exercised by an aggrieved person against whom an order has been made under Article 184(3) of the Constitution prior to the commencement of the Act. Effectively, this right of intra-court appeal is prospective and retrospective in nature. For the purposes of filing a review under Article 188 of the Constitution, a party can appoint a counsel of its choice as per Section 6 of the Act. An application pleading urgency or interim relief can be filed, in any cause, appeal or matter before this Court under Section 7 of the Act, which shall be fixed within fourteen days from the date of its filing. Lastly, Section 8 of the Act allows the provisions of the Act to override any law, rules, or regulations for the time being in force or judgment of any court.

5. In terms of the arguments made, there are three main issues that need to be addressed: firstly, whether Parliament is competent to legislate on the subject of practice and procedure of the Supreme Court in view of Article 191 of the Constitution, which specifically authorizes the Supreme Court to make rules, regulating its practice and procedure? Secondly, whether the right of appeal to the original jurisdiction of this Court can be established under Section 5 of the Act by way of ordinary legislation or whether a constitutional amendment is required as to the same? Lastly, whether these Petitions are maintainable being that no questions of public importance are involved with reference to the enforcement of any of the fundamental rights?

6. For ease of reference the relevant provisions of the Constitution are reproduced hereunder: ^[191]. Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.

Federal Legislative List:

58. Matters which under the Constitution are within the legislative competence of [Majlis-e-Shoora (Parliament)] or relate to the Federation.

Understanding Article 191 of the Constitution

7. The distribution of legislative powers between the federal and provincial governments is provided in Article 142 of the Constitution. Parliament is competent to make laws with respect to any matter contained in the FLL and the entries contained in the FLL indicate the subject on which the legislature is competent to make law. Parliament can legislate on the subject matters given in the FLL, but this power is subject to the limitations prescribed in the Constitution.^[79] Hence, the first source of Parliament's legislative competence is the FLL.

8. The case of the AGP and counsel for the Respondents is that competence, in this case, is derived from the Constitution itself, being Article 191, which expressly provides that the Supreme Court's power to make rules regulating practice and procedure is subservient to the law. They argued that the use of the word law in Article 191 clearly indicates Parliament's ability to make law on the subject of practice and procedure as the rule-making power of this Court is not just subject to the Constitution but also subject to legislation by Parliament. Their basic case is that the Supreme Court is the rule-making authority under Article 191 of the Constitution but that Parliament, being the supreme law-making authority under the Constitution, is competent to legislate on the subject of practice and procedure primarily because the term subject to law includes statutory law, which Parliament can make.

9. There is no cavil with the fact that the source of legislative competence under the Constitution is Article 142 read with the FLL. However, the only exception to this source of legislative competence, conferred by Article 142, is where the Constitution itself expressly and specifically confers legislative competence. These exceptions can be witnessed throughout the text of the Constitution. For example, under Article 225 of the Constitution, an election dispute can only be questioned by an election petition presented to such tribunal in such manner as may be determined by Act of [Majlis-e-Shoora (Parliament)]. The second example is Article 6(3) of the Constitution which allows the Parliament by law provide for the punishment of persons found guilty of high treason. In the same way, Article 212(1) of the Constitution specifically authorizes the relevant legislature (federal or provincial) to establish administrative courts or tribunals to exercise exclusive jurisdiction with reference to the subject matters contained in sub-articles (a), (b) and (c) of Article 212(1) of the Constitution. Another example is Article 87(2) of the Constitution which provides that Parliament can make laws regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of either House. It is critical to note that as per the aforementioned examples, there is no corresponding Entry contained in the FLL that confers legislative power on Parliament on these subject matters. It is the Constitution itself that authorizes the competent legislature to enact law on the said subjects.

10. The problematic aspect of the AGP's arguments is that Article 191 of the Constitution is a direct source of legislative competence by the Constitution for Parliament as the terminology subject to the Constitution and law is to be read as enabling, meaning thereby that it grants Parliament competence to make law regulating practice and procedure, and any such legislation shall be limited to the statutory law enacted by Parliament. Although, not part of his basic argument, the AGP and counsel for the Respondents alluded to the fact that Entry 58 of the FLL is also relevant as it relates to matters under the Constitution that are within the legislative competence of Parliament. Hence, they argue that legislative competence is derived from reading Article 191 with Entry 58 of the FLL. They support this argument with the contention that Parliament is the supreme law-making body, and therefore, it enjoys sovereignty on the said subject matter based on the understanding that subject to law confers legislative competence with reference to making law on the subject of practice and procedure of the Supreme Court.

11. Article 191 of the Constitution starts with the words subject to the Constitution and law. We first have to examine what the words subject to mean and then, what the word law means. In terms of Article 191, the Supreme Court is authorized to make rules governing its practice and procedure, which is an exclusive and inherent power but has been made subject to the Constitution and law.

This means that the only restriction or constraint on the rule-making power of this Court is either contained in the Constitution itself or the law. The expression subject to is generally read as a limitation or condition, being restrictive in context and not as a source of legislative competence.

According to Corpus Juris Secundum, the expression subject to is a term of qualification, employed usually to qualify something substantially already created.^[80] It has been defined as being conditional upon or dependent upon, as a limitation or controlled or restrained by. So, the words subject to essentially mean that it is affected by or dependent on something. In this case, it is the Constitution and the law. The purpose and meaning these words of limitation serve is that whilst the Supreme Court can make rules governing its practice and procedure, the rules cannot be in conflict with the Constitution or existing law. Hence, the Constitution gives the Supreme Court the power to make its own rules while at the same time requiring the rules to be in conformity with the Constitution and the existing law. This Court in the Imrana Tiwana case interpreted the phrase subject to the Constitution as expressed in Articles 137 and 142 of the Constitution, to mean, that where the Constitution itself places a bar on the exercise of legislative or executive authority of the province, such authority cannot be exercised.^[81] This means that the legislative or executive authority of the province shall extend to matters with respect to which the provincial assembly has the power to make law except where the Constitution itself creates any limitation or restriction. This Court also clarified that the terminology subject to the Constitution does not make the given Articles subservient to the remaining provisions of the Constitution, it merely requires the given authority to be exercised as per the Constitution.^[82] So, the phrase subject to was read as an expression of limitation or restriction on the exercise of authority in the Imrana Tiwana case. In the Muhammad Khan case, this Court held that subject to the Constitution, as expressed in Article 98(2) of the Constitution of the Republic of Pakistan, 1962 (1962 Constitution),^[83] means except where the Constitution itself creates a bar.^[84] Article 98 of the 1962 Constitution was with reference to the exercise of writ jurisdiction by the High Court which was made subject to the Constitution, meaning that the High Court could exercise this jurisdiction subject to any limitation in the 1962 Constitution and where the High Court was satisfied that there was no other adequate remedy provided. The Muhammad Khan case concluded that the phrase subject to the Constitution will be read as a limitation on the jurisdiction exercised under Article 98(2) of the 1962 Constitution, as the said Constitution specifically creates this limitation. Again, the words subject to were read as a restriction on the exercise of power and not as enabling or granting power. In the Mustafa Impex case, this Court stated that the phrase subject to the Constitution in Article 97 of the Constitution indicates that the executive authority of the Federation has to be exercised within the constitutional scheme in relation to the conferment of constitutional powers and responsibilities between the three organs of the State.^[85] In the Balakrishna Chetty case, the Supreme Court of India (SCI) held that the word subject means liable to the rules and the provisions of the act and is to be read as being conditional.^[86] Once again the context of the words subject to is limiting or restrictive and not as enabling. More recently, this Court in the Ghulam Mohiuddin case examined Article 188 of the Constitution^[87] and interpreted the words subject to the provisions of any Act of [Majlis-e-Shoora (Parliament)] to be restricted and not a constitutional authorization to change the provisions of the Constitution by way of ordinary legislation.^[88] This Court held that if subject to were to mean that a constitutional provision can be changed or modified by ordinary law then it would mean that even a fundamental right can be denied and other articles of the Constitution can be amended through ordinary legislation. In the opinion of Munib Akhtar, J. the words subject to are conventionally understood to be words of limitation as they are regarded as circumscribing or controlling whatever it is that follows them.^[89] Therefore, on the basis of the settled understanding of the word subject to, these words are neither enabling nor facilitated rather they are limiting and restrictive to the power that follows.

12. Now turning to the understanding advanced by the AGP to the term law used in Article 191 of the Constitution. The term law used in this phrase is what captures the essence of the AGP's and Respondents' argument. They understand the law to be this all-inclusive word that will include an Act of Parliament, rules, regulations, and other statutory instruments and argue that the inclusion of an Act of Parliament in the word law means that the Constitution grants Parliament legislative competence to make law. So by saying subject to law, the Constitution recognizes the word law to be an all-enabling term, which contains the implicit authorization to make law. For starters, if we were to accept the AGP's argument that the word law means and includes Acts of Parliament, which in turn will mean that Parliament is competent to legislate on the subject of practice and procedure, this understanding would be applicable to the numerous provisions where the words subject to law is provided for in the Constitution.^[90] In our view, this is a very perilous and serious conclusion because it will adversely impact the entire constitutional scheme as it suggests, wherever the word law has been used, it infers statutory law, which surmises legislative competence. In the same way, since the word law can include rules, regulations and other statutory instruments including those issued by the executive, then the executive could also by means of the word law affect upon and determine the practice and procedure of the Supreme Court. Secondly, if the word law were to mean competence of Parliament, it would by necessary implication follow that the legislative competence of Parliament, on the subject of practice and procedure, is over and above the rule-making authority granted to the Supreme Court.

Consequently, Parliament could make law in conflict with any existing rule which would render the rule-making authority of the Supreme Court useless. This in fact is the problem in the present case as the Act has legislated on matters already covered by the 1980 Rules, rendering the affected rules redundant. Basically, Parliament has modified and changed the 1980 Rules making the rule- making authority of the Supreme Court non-existent because once Parliament has legislated on a matter related to practice and procedure, the rule-making power of this Court becomes redundant. Therefore, we cannot subscribe to this view, as no provision of the Constitution can be interpreted as being superfluous.^[91] An effort must be made to give meaning to all the words of the Constitution ensuring that no word is attributed redundancy.^[92] While interpreting Article 191, the entire phrase subject to the Constitution and law has to be considered. The term subject to law used in Article 191 of the Constitution does not suggest legislative competence rather it means the rule-making power of the Supreme Court is subject to the existing law, meaning thereby the Supreme Court cannot make rules contrary to substantive or statutory law which are already in the field. The Constitution mandates that the Supreme Court can make its rules on practice and procedure but in doing so, it cannot encroach upon established legislative domain being that, under the garb of its rule-making power, it cannot replace or override statutory law. The reason for this constitutional command is very simple, the Constitution grants rule making authority on practice and procedure exclusively to the Supreme Court without giving Parliament any overriding power by way of legislation and restricts the authority of the Supreme Court to rule-making and nothing more. When seen in the context of the constitutional scheme, the principle of separation of powers (discussed in detail below) requires a balance between the executive, the law-maker and the judiciary, which is maintained when each branch of the state enjoys rule-making under Articles 67(1), 72, 88(3) and 99(3) of the Constitution.^[93] These provisions mandate that each organ of the State makes its own rules for its internal working and does not require legislative intervention in their respective area.

13. During the course of the arguments, although a lot of emphasis was placed on Article 191 and its grant of legislative competence to Parliament to legislate on the subject of practice and procedure; reliance was also placed on Entry 58 of the FLL to support the contention that Article 191 of the Constitution read with Entry 58 of the FLL gives Parliament legislative competence on the subject of practice and procedure. This argument is also inherently flawed as the basic contention is that by way of Article 191, the Constitution itself prescribes legislative competence for Parliament to legislate on the subject of practice and procedure yet, at the same time, the argument is that Entry 58 of the FLL read with Article 191 of the Constitution prescribes for the legislative competence on the subject of practice and procedure of the Supreme Court. We understand as per the constitutional requirement that the FLL read with Article 142 of the Constitution prescribes for the subject matter over which the federal and provincial legislature is competent to make law. Hence, the source of legislative competence is either the FLL or the Constitution. So, if the Constitution in itself directly authorizes Parliament on a subject, it does not require a corresponding Entry from the FLL. Therefore, either competence is derived from Article 191 of the Constitution itself or from Entry 58 of the FLL. This issue was examined at great length in the Nadim Rizvi^[94] case while relying on the MQM^[95] case in the following terms: ^[62]. Since Article 222(b) does not exclude the delimitation of constituencies for local government, and as the body of the Constitution specifies the appropriate legislature which should pass the law, any reference to the provisions of the legislative entries contained in Item 4 of the Fourth Schedule are of no consequence. There are similar provisions in the Constitution qua which there is no corresponding entry in the Federal Legislative List. For example, Article 6 clearly provides that the Majlis-e-Shoora (Parliament) will pass the law for high treason. But there is no corresponding entry in the 4th Schedule prescribing the subject of high treason in the Federal Legislative List. Article 142(c) could not be pressed into service to say that since the 4th Schedule is silent, in terms of Article 142(c), the Provincial Legislature would legislate in respect of high treason. When the main body of the Constitution provides for the competent legislature it is not necessary to look into the legislative list. Under Article 87(2), the Majlis-e-Shoora (Parliament) may enact law for conditions of service of secretarial staff, whereas in this regard there is no corresponding entry in the Federal Legislative List; that Article 237 empowers the Majlis-e-Shoora (Parliament) to make laws for indemnity; again there is no entry to that effect in the Federal Legislative List; that under Article 253 the Majlis-e-Shoora (Parliament) may make laws pertaining to maximum limits as to property etc; however there is no corresponding entry in the Federal Legislative List; Article 146(2) states that the Majlis-e-Shoora (Parliament) may enact laws to confer powers on Provinces or their officers, but there is no entry in this regard in the Federal Legislative List; that under proviso to clause (2) of Article 212, the Majlis-e-Shoora (Parliament) may make laws in relation to administrative tribunals, however, there is no corresponding entry in the Federal Legislative List; that even though "electricity" falls under entry 4 of the Part II of the Federal Legislative List, under Article 157(2)(b) the Provincial Government is empowered to levy tax on consumption of electricity within the Province and that Entry 58 of the Part I of the Federal Legislative List, clearly provides that the matters which under the Constitution are within the legislative competence of Majlis-e-Shoora (Parliament) or relate to the Federation, would fall under the domain of the Federal Legislature. In the instant case, as explained above, under the relevant Articles of the Constitution, the subject matters of delimitation and conduct of Local Government Elections fall under the domain of Parliament/Federal legislature.^[96] (Emphasis Added)

Reliance on Entry 58 of the FLL

14. However, if we are to examine the argument on Entry 58 of the FLL, we find that the same is misplaced. The subject matter over which the question of Parliament's competence is that of practice and procedure of the Supreme Court. There is no direct entry on this subject matter and rightly so since it is explicitly mandated by the Constitution under Article 191 of the Constitution that the Supreme Court shall make its rules on practice and procedure. The argument that Entry 58 of the FLL gives legislative competence to Parliament on the subject of practice and procedure is totally without basis as this is a residuary and independent Entry dealing with matters which are, as per the Constitution, under the legislative competence of Parliament and relate to the Federation. If this is taken to mean that it is a general Entry granting legislative competence to Parliament to legislate on any subject matter which is not specifically covered under the FLL, it would in fact become an all-encompassing Entry giving Parliament competence on just about any subject matter. Effectively, the FLL would become redundant as Parliament could legislate on any subject matter and take cover under Entry 58 of the FLL. The assigned fields with reference to subject matters are specifically provided in the FLL that in terms of Article 142 of the Constitution grants Parliament the ability to make law on the listed subject matters, which are subject to the Constitution. Hence, Entry 58 of the FLL has to be read in the context that prescribes a field to legislate upon, whose subject matter must be related to the Federation. In this case, the issue at hand is the subject matter of practice and procedure of the Supreme Court which has no nexus with the given subject in the context of Entry 58 of the FLL. The rule-making power of the Supreme Court cannot be prescribed as a matter relating to the Federation as the matter relates specifically to the Supreme Court and its rule-making authority. Therefore, on its own, Entry 58 of the FLL cannot grant competence to Parliament to legislate on practice and procedure which as per Article 191 of the Constitution is the power of the Supreme Court.

Rule-Making Power and its Significance

15. The constitutional mandate granting the Supreme Court the power, to regulate its own practice and procedure, is a power that is inherently entrenched in the functioning and administration of this Court. It is an explicit constitutional grant that requires this Court to make its own rules for its effective administration. To this effect, Roscoe Pound, a renowned legal scholar and former Dean of Harvard Law School, argues, in truth, the procedure of courts is something that belongs to the courts rather than to the legislature, whether we look at the subject analytically or historically.^[97] He believed that courts should have the authority to make their own rules of procedure and practice so that it remains flexible, can be adjusted as per the requirements and needs and, therefore, can easily serve the interest of justice. The Supreme Court of New Jersey in the Winberry case interpreted its rule-making power in a similar situation to the instant case.^[98] The basic issue in the said case was in relation to the limitation period for filing of appeal, wherein the supreme court's rule provided a lesser limitation period than the statute. Hence, there was a conflict between the rules of the supreme court and the statute. Interestingly, the Constitution of New Jersey provided a similar provision as Article 191 of the Constitution that allows the supreme court to make rules, which is reproduced below: [T]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.^[99]

16. The Supreme Court of New Jersey in Winberry extensively and elaborately interpreted the phrase subject to law as follows: [T]he phrase "subject to law" is not only ambiguous, but elliptical. No word in the law has more varied meanings than the term "law" itself. Nor is the phrase "subject to" crystal clear, for the phrase implies a limitation rather than a grant of power. It is argued by the plaintiff that "subject to law" means subject to statute law or legislation. If this is what the Constitutional Convention intended, it would have been easy for it to say so. We must take the phrase as we find it and endeavor to ascertain its meaning in the light of the entire Constitution and of the intent of the people in adopting it. There can be no doubt in the mind of anyone familiar with the work of the Constitutional Convention or with the ensuing election at which the Constitution was adopted by the people that, along with the desire to strengthen the powers of the Governor and to amplify the powers of the Legislature, there was a clear intent to establish a simple but fully integrated system of courts and to give to the judiciary the power and thus to impose on them the responsibility for seeing that the judicial system functioned effectively in the public interest.

Indeed, in the minds of many, if not a majority, of our citizens this was the primary reason for their desire for a new constitution.

If "subject to law" were to be interpreted to mean subject to legislation, it would necessarily follow that once the Legislature had passed a statute in conflict with a rule of court, the rule-making power of the Supreme Court would be functus officio, for it would be intolerable to hold, as has been suggested to us, that after the Legislature has passed an act modifying a rule of court, the Supreme Court might in turn adopt a new rule overriding the statute, and so on ad nauseam. Such an unseemly and possibly continuous conflict between these two departments of the State Government could never have been contemplated by the people. And yet if "subject to law" means subject to legislation, any other construction of the rule-making power would be in conflict with the fundamental rule of constitutional construction that unless the context clearly requires otherwise, a constitutional grant of authority is to be interpreted as a continuing power. As one studies the Judicial Article of the Constitution and its carefully designed provisions for an efficient judicial organization with unusual powers of effective administration, it is evident that the people of this State thought of the rule-making power in the Supreme Court as a continuous process. In this connection it is significant to note that neither the Constitution of 1776 nor that of 1844 contained any provisions whatsoever as to rule-making, admission to the practice of law, the discipline of the bar, an administrative head of the courts, or the assignment of judges. All of these powers are necessarily of a continuing nature if the judges are to be held responsible for the functioning of the courts. It is inconceivable that the people granted continuing power to the courts in all these respects but withheld it with reference to rule-making, which is quite as essential to the operation of an integrated judicial establishment as are any of the other powers.

Article VI, Section II, paragraph 3 of the new Constitution not only gives the Supreme Court the rulemaking power, but it imposes on the Supreme Court an active responsibility for making such rules - "The Supreme Court shall make rules." If there were any doubt as to the continuous nature of the rule-making power, such doubt would be resolved by this imposition of the positive obligation on the Supreme Court to make rules for all the courts.

An analysis of all of the pertinent provisions of the Constitution serves to convince us that the phrase "subject to law" cannot be taken to mean subject to legislation. In the first place, by Article XI, Section IV, paragraph 5 of the Constitution "The Supreme Court shall make rules governing the administration and practice and procedure of the County Courts" this provision is clear and unambiguous; the rule-making power of the Supreme Court with respect to the county courts is absolute and unrestricted. It does not require an active imagination to anticipate the chaotic situation which would prevail in every court house in the State with the Supreme Court promulgating the rules for the county courts and the Legislature dictating the practice and procedure of the Superior Court. One of the objectives of the people in adopting the Constitution was to provide for uniformity as well as simplification and flexibility in the work of the courts. This objective would be frustrated by any such dual exerciseof rule-making power. Manifestly no such construction of the phrase "subject to law" should be accepted because of the unfortunate results which would inevitably flow therefrom unless no other rational meaning can be found for the phrase. Nor can it be said that the grant to the Supreme Court of the rule-making power with respect to the county courts was a constitutional accident.^[100] (Emphasis Added)

17. It was held in Winberry that it is constitutionally impermissible that legislation enacted by parliament can prevail over the supreme court rules. In terms of Winberry, the phrase subject to law cannot be construed as a power-granting provision (i.e. allowing Parliament to make law) rather it is a limitation on the supreme court to ensure that its rules of practice and procedure are within the terms of existing law. Similarly, Article 191 of the Constitution commands a positive obligation over the Supreme Court, not Parliament, to make rules for its practice and procedure.

The Winberry case also holds that if a statute is allowed to prevail over the domain of the court's rules of practice and procedure, it would totally disturb the constitutional powers granted to the court and the principle of separation of powers. Winberry was upheld by a 6-1 majority.

18. While interpreting the aforementioned rule-making power of the supreme court in the Constitution of New Jersey, Justice Case in his opinion in the Winberry case was of a different view in that the supreme court has exclusive power over the administration of all courts, whereas the matter of practice and procedure was subject to legislative statute. He explains that in his opinion there is a difference between the administration of the court on the one hand and the practice and procedure of the court on the other. Based on this reasoning, Justice Case's emphasis is on the fact that the administration of the courts lies specifically with the courts, whereas the subject of practice and procedure can be legislated upon. Interestingly, Justice Case considers matters related to the constitution of benches and fixation of cases as matters falling within the administration of the court, which he exemplifies in the following manner: [....] The number of parts of each division of the Superior Court, the number of judges in each part, the causes that each part shall hear - these are all matters of court administration and therefore are within the express constitutional provision that the Supreme Court shall make rules governing the administration of all courts -- note that, all courts -- in the State without being "subject to law."^[101] (Emphasis Added)

19. In a similar manner, the Supreme Court of Colorado in Kolkman interpreted its power of rule- making under the Rules of the Supreme Court of the State of Colorado, 1929 and held that this was a constitutional function in line with the principles of separation of powers wherein, within the scheme of government, the duties and responsibilities are equally divided and each department must perform its own tasks and accept its own responsibilities.^[102] While upholding the rule- making power of the trial court, the Michigan Supreme Court in the Brown case held that the court has an inherent right to function and to function efficiently such that the rule-making power enables it to put into practice the required process and procedures for the effective administration of justice.^[103] In another case, the Michigan Supreme Court held that the power to regulate its procedure inherently rests in the supreme court because it is a constitutional rule-making power for the efficient administration of justice.^[104] Finally, in the Epstein case, the Indiana Supreme Court held that only the court can make its rules and this rule-making power cannot be taken away by legislative action.^[105] The purpose of the rules is not for the benefit of the parties but to aid the court in expediting the business before it.^[106] The commonality of these cases with the issues before us is that with respect to the rule-making power of the court, each of these judgments demonstrates that courts have guarded their rule-making power carefully and cautiously and ensured that it is protected from legislative interference. The general understanding which flows from these cases is also that the rule-making power is an inherent power within the court for its efficient and effective functioning as it allows the court to deal with matters of practice and procedure, which includes fixation of cases and constitution of benches, etc. and these matters cannot be subject to legislative intrusion.

20. This brings us to another argument raised with respect to the supremacy of Parliament to make law. The argument stresses Parliament's ability and constitutional right to make law. However, seen from any angle, this argument is misplaced as under the existing constitutional structure, the Constitution is supreme and not Parliament.^[107] This means that the provisions of the Constitution must be given effect and the interpretation of the Constitution is one where its objective must be achieved. Some of the significant features of the Constitution are separation of powers and independence of the judiciary which have been central to the arguments made before us. In the context of the AGP's and Respondents' arguments, Article 191 of the Constitution grants legislative competence to Parliament to make law on practice and procedure, and at the same time, allows the Supreme Court to make rules on practice and procedure. This suggests competing domains, where Parliament would reign superior over the rule-making authority of the Supreme Court in the event of a conflict. To give meaning and effect to the constitutional objective of authorizing the Supreme Court to make its rules for practice and procedure, this rule-making authority must be understood as a function of the judiciary and not a legislative function. There appears to be no other constitutional reason to give this authority to the Supreme Court, hence, as a matter of constitutional compulsion, the rule-making power falls exclusively within the domain of the Supreme Court. Any understanding that it is shared space would also suggest superintending control by the legislature over the judiciary in its internal functions which negates the principles of separation of powers and independence of the judiciary.

Historical Perspective

21. When seen in the historical context, which is relevant for understanding and interpreting constitutional provisions,^[108] from the Government of India Act, 1935 as adapted for Pakistan

(GOIA) until the present, the subject of practice and procedure of the Supreme Court has been one of judicial rule-making and not legislation. At the time of independence in 1947, Pakistan continued its institutional and structural operation under the GOIA. Section 200 of the GOIA established the Federal Court. Section 203 of the GOIA states that the seat of the Federal Court shall be in Karachi and at such other place or places, as the Chief Justice of Pakistan may appoint after prior sanction by the Governor-General. Pertinently, Section 214 of the GOIA was about the rule-making power of the Federal Court, which is reproduced below: ^[214]. (1) The Federal Court may from time to time, with the approval of the Governor-General make rules of court for regulating generally the practice and procedure of the court, including rules as to the persons practising before the court, as to the time within which appeals to the court are to be entered, as to the costs of and incidental to any proceedings in the court, and as to the fees to be charged in respect of proceedings therein, and in particular may make rules providing for the summary determination of any appeal which appears to the court to be frivolous or vexatious or brought for the purpose of delay.

[(1A) Subject to the provisions of the Code of Civil Procedure, 1908, or any law made by the Federal Legislature, the Federal Court may also from time to time, with the approval of the Governor- General, make rules of court for regulating the manner in which any decree passed or order made by it in the exercise of its appellate jurisdiction may be enforced.] [(2) Rules made under this section may fix the minimum number of judges who are to sit for any purpose and may provide for the powers of judges sitting singly and in any division of the court.]

(3) Subject to the provisions of any rules of court, the Chief Justice of [Pakistan] shall determine what judges are to constitute any division of the court and what judges are to sit for any purpose.

(4) No judgment shall be delivered by the Federal Court save in open court and with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this sub- section shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment.

(5) All proceedings in the Federal Court shall be in the English language.

(Emphasis Added)

22. It may be noted that sub-section (1) of Section 214 of the GOIA allowed the Federal Court to make rules as to the practice and procedure, subject to the approval of the Governor-General.

Sub-section (2) of Section 214 empowered the Federal Court to make rules for fixing minimum number of judges who are to sit for any purpose and for providing powers of judges sitting singly and in any division of the said court. Sub-section (3) of Section 214 gives exclusive administrative powers to the Chief Justice of Pakistan as to the constitution of benches on the judicial side and to decide what Judges are to sit for any of the said purposes.

23. The first constitution being the Constitution of the Islamic Republic of Pakistan, 1956 (1956 Constitution), established the Supreme Court of Pakistan.^[109] The seat of the Supreme Court was in Karachi and at such other place or places as the CJP may appoint after prior approval by the President.^[110] The right to appeal was provided to the Supreme Court in civil matters if the Act of Parliament was allowed under Article 158 of the 1956 Constitution.^[111] Article 177 of the 1956 Constitution specifically provided that until provisions are made by an Act of Parliament, the provisions of the Third Schedule shall apply in relation to the Supreme Court and High Courts in respect of matters specified therein. The rule-making power of the Supreme Court was provided under Entry 3 of Part I of the Third Schedule, which was similar to Section 214 of the GOIA. Under Clause (3) of Entry 3, the administrative powers of the CJP were in pari materia to Section 214(3) of the GOIA.

24. In the same year, the Supreme Court made the Supreme Court Rules, 1956 (1956 Rules) with the approval of the President, whereby the Federal Court Rules, 1950 were revoked.^[112] The 1956 Rules comprehensively covered everything related to the internal affairs of the Supreme Court from the sitting of the Court, its vacation to business in chambers, constitution of benches and rules related to the filing of appeals and petitions for leave to appeal amongst others. Order XI of the 1956 Rules allowed the CJP to constitute the benches.

25. Under the 1962 Constitution, the rule-making authority of the Supreme Court was contained in Article 65 of the 1962 Constitution. The rule-making power, as seen in the GOIA and the 1956 Constitution, was changed under the 1962 Constitution such that it became subject to the Constitution and the law and now required the approval of the President. Hence, similar to the existing Constitution except that now the approval of the President is no longer required. Article 65 of the 1962 Constitution reads as follows: ^[65]. Subject to this Constitution and the law, the Supreme Court may, with the approval of the President, make Rules regulating the practice and procedure of the Court.

(Emphasis Added)

26. Then came Article 193 of the Interim Constitution of the Islamic Republic of Pakistan, 1972 (1972 Interim Constitution) which was the same as Article 65 of the 1962 Constitution as to rules of procedure for the Supreme Court. In the exercise of powers conferred under Article 191 of the Constitution, the full court of the Supreme Court in 1980 made its Rules by repealing the 1956 Rules.

Once again, in light of the constitutional history and conventions, the CJP was empowered to constitute benches under the 1980 Rules.^[113]

27. Historically, the rule-making powers of the Supreme Court were within the exclusive domain of the Supreme Court (or Federal Court, as the case may be), which were protected legislatively

(GOIA) and constitutionally (1956, 1962, 1972 Interim and 1973 Constitutions). The Supreme Court exercised its constitutional power by making these rules and the same were in the field throughout the making and remaking of the constitutional order. Our constitutional history does not demonstrate that Parliament was ever competent to make law on the subject of practice and procedure. The rule-making power was also never subjected to legislative control where Parliament was seen as being competent to make law on the practice and procedure of the Supreme Court. Although earlier all rule-making authority was subject to approval by the executive, there has been a clear and definite shift from this process moving towards a complete separation of powers.

Parliamentary Debates

28. On 28.03.2023, the Minister for Law and Justice introduced the Supreme Court (Practice and Procedure) Bill, 2023 (Bill) before the National Assembly. The fundamental purpose of the Bill, as stated in the Statement of Objects and Reasons, was as: [W]hereas, the exercise of original jurisdiction by the Supreme Court under clause (3) of Article 184 of the Constitution has been a subject of discussion by various forums with respect to invoking of Suo Motu powers, constitution of benches and the absence of right of appeal.

29. The National Assembly passed the Bill on 29.03.2023 and transmitted it to the Senate. The Senate passed the Bill as is on 30.03.2023. The Bill was sent to the President for his assent, who returned the same to the National Assembly with a note stating therein his objections, namely, with reference to the legislative competence of Parliament and given that the Supreme Court has already made its Rules in 1980 and the same are being followed, hence, the Bill amounts to interference with the internal working of the Court, its autonomy and independence.

30. In a joint-sitting of Majlis-e-Shoora (Parliament) on 10.04.2023, the President's objections were reconsidered.^[114] In response to the President's objections, the Law Minister explained to the House that the phrase subject to law in Article 191 of the Constitution along with Entry 55 of the FLL allows Parliament to legislate on the subject of the practice and procedure as well as enlarging the appellate jurisdiction of the Supreme Court. The gist of the parliamentary debates revolves around two issues: curtailing the sole and discretionary powers of the CJP in suo motu cases and providing the right of intra-court appeal to the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution, that too, as a remedy against suo motu cases. The parliamentary debates repeatedly refer to how the Chief Justices have arbitrarily exercised suo motu powers, which must be regulated, and how the right of appeal is not provided to a person who is aggrieved by the decision of this Court under Article 184(3) of the Constitution. So, as per debates, the Act primarily addressed the aforesaid concerns. It may also be noted neither the Act nor its Statement of Objects and Reasons contains any reference to Article 142 of the Constitution or any Entry of the FLL.

31. Thereafter, in the same joint-sitting, with some amendments, the Bill was passed by the majority members, which was followed by the President's assent on 21.04.2023, and hence, the Bill became the Supreme Court (Practice and Procedure) Act, 2023.

Constitutional Scheme

32. Having looked at the constitutional history and the parliamentary debates, it is necessary to also understand the reasons behind the constitutional authority granted to the Supreme Court to make rules. The objective and purpose of granting rule-making authority on practice and procedure to the Supreme Court is in recognition of the fact that this is a continuous authority, which gives liberty and autonomy to the Supreme Court to change its rules as per the requirement of the time and also, allows the Court flexibility so as to ensure that the procedures are effective and efficient. If the rule-making scheme has to be reshaped it must be done by the Supreme Court itself, which is constitutionally responsible for its practice and procedure. This is why the 1980 Rules have been placed on a higher pedestal^[115] and cannot be changed or modified or amended or altogether displaced by ordinary legislation.^[116] This Court has held that acting under the 1980 Rules framed pursuant to Article 191 of the Constitution, the Supreme Court is not bound to follow any other statutory dispensation that comes in conflict with the independence of the judiciary.^[117] As a consequence of the 1980 Rules, the Supreme Court is not required to follow the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1898 to the extent that it relates to the practice and procedure of this Court.^[118] In the Khurshid Anwar Khan case, this Court again emphasized that the constitutional objective with reference to the rule-making authority was in furtherance of the principle of independence of the judiciary. The 1980 Rules were made vide S.R.O.1159(I)/80 published in the Gazette of Pakistan on 23.11.1980 in the exercise of powers under Article 191 of the Constitution and since then have been recognized as being within the domain of the Supreme Court. So, what changed this understanding to bring about the Act? A lot was argued on the point that the Supreme Court had failed to amend its Rules since 1980 and that certain practices and powers are now deemed arbitrary and against the public interest. Reference was made to the concept of master of the roster and the powers of the CJP. Arguments were made on the exercise of suo motu jurisdiction by this Court and there not being an effective remedy against any order passed under Article 184(3) of the Constitution. As argued by the AGP, the Act aims to structure the unbridled discretion vested in the CJP thereby enhancing the independence of the judiciary. More importantly, Parliament stepped into the affairs of the judiciary because the Supreme Court failed to address these issues by amending the 1980 Rules. This leads to the conclusion that Parliament legislated on practice and procedure on account of expediency or necessity as it felt that the suo motu jurisdiction as exercised by the Supreme Court needed to be regulated. The parliamentary debates testify to this fact that Parliament legislated to satisfy demands of regulating suo motu jurisdiction and arbitrary exercise of authority by the CJP when it comes to the constitution of benches and fixation of cases.

33. However, while Parliament's debates merely reflect the concern of Parliament on the issue, neither expediency nor necessity confers legislative competence. The rule-making power of the Supreme Court relates to its internal administration and management with matters concerning the practice and procedure to be followed with respect to the exercise of jurisdiction by the Supreme Court. The question that arises is that if Parliament is competent to make law on the subject of practice and procedure of this Court, who is to enforce this law? Can Parliament enforce its law over the Supreme Court? What is the consequence of non-implementation of the Act? This issue has been addressed in the Baz Muhammad Kakar case wherein this Court has held that the 1980 Rules have been framed under Article 191 of the Constitution having constitutional backing which means that the legislature cannot take over the duties and functions of the Chief Justice and other Judges of this Court, because if it did, then in such eventuality,the Executive would be issuing orders for the constitution of benches that would be a violation of principles of independence of the judiciary and denial of access to justice.^[119] Baz Muhammad Kakar also concluded that the legislature can only make a law that is within its legislative competence and the same has to be prescribed by the legislative field, circumscribed by specific legislative Entry in the Constitution.

This means that Parliament can only make law on the subject matters prescribed in the FLL or else explicitly prescribed by the Constitution.

34. While the parliamentary debates reflect on the concern with respect to suo motu jurisdiction and the CJP's power as master of the roster, two basic principles of the constitutional scheme, that is independence of the judiciary and separation of powers, have not been considered. The significance of the independence of the judiciary is such that the Preamble to the Constitution, which is now a substantive part of the Constitution under Article 2A, clearly mandates that the independence of the judiciary shall be fully secured. This Court has time and again held that independence of the judiciary is one of the foundational values of the Constitution,^[120] and that judicial independence and access to justice are now regarded as fundamental rights in and of themselves.^[121] This Court has referred to the independence of the judiciary as a pivotal constitutional value,^[122] where the rule of law and the independence of the judiciary are conceptually interwoven: without an independent judiciary, expecting the rule of law is a sheer farce.^[123] The independence of the judiciary should be guaranteed by the State as enshrined in the Constitution and respected and observed by the State.^[124] As per Saleem Akhtar, J. in the Sharaf Faridi case, the independent judiciary is part of a fundamental right that guarantees a fair and proper trial.^[125] In the Asad Ali case, this Court has held that constitutional fundamental rights will become meaningless if there is no independent judiciary available in the country.^[126] Hence, the independence of the judiciary is the prerequisite for the protection and enforcement of the rule of law and fundamental rights. In the Iftikhar Muhammad Chaudhry case, it was held that to commit an offense upon judicial independence means to encroach on the right of the people to access justice.^[127] Independence of the judiciary is considered to be a basic and salient feature of the Constitution.^[128] This Court has also held that Parliament was not free even to amend the Constitution in a manner that could undermine the independence of the judiciary.^[129] Hence, the independence of the judiciary is a core value that the Constitution protects and enforces.

35. It is within the ambit of such independence that the judiciary must be totally separated from the executive and the legislature. Since the rise of nation-states in the 17th century, it became essential to delineate the power among the state's institutional structure. Montesquieu apprehended tyrannical order if the legislative, executive and judicial powers are exercised by the same person or body.^[130] Based on this apprehension, the principle of separation of powers emerged. This principle was subject to extensive deliberation by the Framers of the Constitution of the United States of America (USA), who considered the separated powers as more sacred than other constitutional principles.^[131] Justice Scalia in his dissent in Morrison was of the view that the principle of separation of powers preserves the equilibrium so that the concentration of several powers in the same department has to be resisted effectively.^[132] In Kesavananda Bharati and Indira Nehru Gandhi, the SCI declared the doctrine of separation of powers as the basic structure of the Indian Constitution.^[133]

36. Like the USA and the Indian Constitutions, the phrase separation of powers is not mentioned in the Constitution. The only reference made in the Constitution is in the Preamble regarding judicial independence or separating the judiciary from the executive within a period of fourteen years in terms of Article 175(3). Yet beyond a shadow of a doubt, the principle of separation of powers is fundamental to the organization of any state and the same is fundamental to the systems of government adopted by these Constitutions.^[134] It is a basic principle of our Constitution.^[135] The separation of powers is inferred from the Constitution's organizational principles, hence, it is implicit in the Constitution.^[136]

37. This Court in the Jurists Foundation case has held that the separation of powers is not only a fundamental principle of our constitutional construct but also the cornerstone of a constitutional democracy.^[137] The principle of trichotomy of power is the basis of the Constitution where the executive, legislature and judiciary have their own functions independent from each other.^[138] There is neither dependency nor superiority among the three organs of the state.^[139] This division ensures that each branch can function independently without undue interference from the others.

140. In the Zia-ur-Rehman case, this Court has held that the delineation of powers is a constitutionally inherent principle so that one organ or sub-organ may not encroach upon the legitimate field of the other.^[141] In the Yousaf Raza Gillani case, this Court holds that the Constitution conceives of order among co-equals organs of the state, each manifesting the will of the people and giving effect to such through adjudication, executive action or legislation.^[142] There is constitutional recognition that the judiciary does not have the resources or power which the legislature or the executive enjoy, therefore, the Al-Jehad case holds that the constitutional provisions need to be construed in a manner so that the independence of the judiciary is secured.

143. In the Azizullah Memon case, this Court has held that the separation of the judiciary is the cornerstone of independence of the judiciary and unless the judiciary is independent, the fundamental right of access to justice cannot be guaranteed.^[144] Therefore, it can be said that the separation of the judiciary from the executive and legislature is part and parcel of judicial independence.

38. A full bench of this Court in the Mobashir Hassan case held that the constitution commands exclusive power and responsibility of the judiciary by ensuring the sustenance of a system of separation of powers based on checks and balances. This is a legal obligation assigned to the judiciary.^[145] The Constitution mandates the judiciary, and no other organ, to solely and completely determine its institutional affairs in terms of constitutional balance of power. So much so, the Supreme Judicial Council (SJC) under Article 209 of the Constitution requires the judiciary to hold Judges accountable, as no other institution is authorized to do so. Hence, reading legislative competence in the word law does not protect or endorse the constitutional scheme rather creates something which negates the principle of separation of powers.

39. Although emphasis on the issues of master of the roster and exercise of suo motu powers were more a means to an end argument, they do not lend support to the question of legislative competence. However, we find it necessary to clarify the concerns raised. On the issue of master of the roster, which terminology refers to the prerogative of the CJP to make and provide for the roster. It flows from the understanding that while the Chief Justice is first amongst equals on the judicial side; so far as the administrative function of constituting benches and allocating cases that lies with the Chief Justice.^[146] This function is prescribed for in the 1980 Rules and it is deeply rooted in the constitutional convention and ruled by various pronouncements of this Court.^[147] In the Baz Muhammad Kakar case, this Court declared the provision of Contempt of Court Act, 2012 unconstitutional for being a clog on the power of the Chief Justice to constitute benches is violative of the principle of independence of the judiciary and right of access to justice.^[148] The judgment holds as under: ^[72]. It was further held that under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside over all important cases and to nominate Judges for hearing cases which come up before the Court. No person has the right to ask the Chief Justice to abdicate this responsibility, nor does anyone have the right to demand a Bench of his own choice. This would be contrary to the well established norms regulating the functioning of the superior Courts. It is the undisputed privilege and duty of the Chief Justice to constitute Benches for the hearing and disposal of cases coming before Supreme Court and no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice. The above principle was reiterated in Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939).

73. It is to be noted that the Supreme Court Rules, 1980 having been framed under Article 191 of the Constitution have a constitutional backing. Therefore, the Legislature cannot take over the duty/function of the Chief Justice and other Judges to hear cases because in such eventuality, the Executive would be issuing orders for constitution of Benches of their choice for hearing of particular cases, which would be interference in the jurisdiction of the Court as well as violation of the principles of independence of judiciary and denial of access to justice enshrined in Articles 2A, 9 and 175 of the Constitution.^[149]

40. In the Shanti Bhushan case, the SCI recognizes the power and prerogative of framing the roster as the power of the Chief Justice which has constitutional backing that includes constitutional convention.^[150] This Court also recognizes constitutional convention and has held that once the constitutional convention is established, it has the same effect as a constitutional provision.^[151] In another case, the SCI in the Asok Pande case has held that there cannot be a presumption of mistrust in the administrative functions of the Chief Justice.^[152] So essentially master of the roster is a terminology used to describe the powers of the Chief Justice with reference to matters related to the practice and procedure of the Court.

41. Now the question is if there is a concern with the working of the CJP, as master of the roster, who is competent to address this issue? In terms of Article 191 of the Constitution, it is for the full court of the Supreme Court to rethink and reshape its 1980 Rules by making them more effective and dispel the notion of arbitrariness and unreasonableness. While the Act has formed a Committee under Section 2, the fact remains that the relevant provisions in the 1980 Rules and the rule-making authority of the Supreme Court have become redundant as this function of practice and procedure has been legislated upon. Similar consequences flow from Sections 3, 4 and 6 of the Act which are in direct conflict with the 1980 Rules.^[153] The Act has, therefore, made the referred Rules redundant meaning thereby that the legislature has prevailed over the rule-making power of this Court. A lot was also said regarding the exercise of suo motu jurisdiction and again the arbitrariness of the Chief Justices' discretion in this regard. By virtue of Suo Motu Case No.4 of 2021, the discretion and prerogative of the CJP invoking this jurisdiction was regulated and any further concerns or issues requiring rule-making were a matter for the full court of the Supreme Court to decide. The thrust of the argument that the Supreme Court failed to address these issues is based on the fact that the competent authority failed to do the needful, hence, the legislature had to step in. The question is can the legislature step in with the intent to rectify a practice that it considers to be wrong? As is to be expected the answer is in the negative.^[154] Rationalizing legislative interference on the basis of need, desire and advantage does not satisfy the fundamental requirement that Parliament can only legislate on subject matters given in the FLL (read with Article 142 of the Constitution) or where the Constitution explicitly states so. Improving the practice and procedure of the Supreme Court, in response to the needs of the times, is for the Supreme Court to reflect upon. Accordingly, the power to make law must be located either in the FLL or in the Constitution but does not flow from the words subject to the Constitution and law.

Understanding Entry 55 of the FLL

42. The next argument is with reference to the enlargement of jurisdiction where the Act creates a right to appeal from an order under Article 184(3) of the Constitution. The said Article provides for the original jurisdiction of the Supreme Court wherein its sub-article (3), without prejudice to the provisions of Article 199 of the Constitution, allows a petition to be filed directly before the Supreme Court on a question of public importance with reference to the enforcement of fundamental rights.

Article 185 of the Constitution provides for the appellate jurisdiction of the Supreme Court listing therein the judgment, decree, final order, or sentence of a High Court from which an appeal lies to the Supreme Court.

43. The dispute is whether the Act can in the form of ordinary legislation enlarge the jurisdiction of the Supreme Court. The AGP argued that the legislature in its wisdom considered the limited jurisdiction of review to be the only remedy given to litigants against orders under Article 184(3) of the Constitution and found it to be insufficient, hence, Section 5 of the Act creates a right of appeal against orders under Article 184(3) of the Constitution. He explained that Entry 55 of Part I of the FLL gives competence to Parliament to legislate with respect to the jurisdiction of this Court. As per his contention, Entry 55 has to be read disjunctively such that the jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List is one part of Entry 55 and the enlargement of the jurisdiction of the Supreme Court is its second part. Consequently, the Supreme Court's jurisdiction as provided by the Constitution cannot be curtailed through ordinary legislation, however, its jurisdiction can be enlarged from such legislation.

44. We have considered this argument at great length and do not find any merit in the same.

Article 175(2) of the Constitution provides that no court shall have any jurisdiction save as it may be conferred by the Constitution or by or under any law. The said Article when read with Entry 55 of the FLL gives competence to Parliament to make law in relation to the jurisdiction and powers of all courts except for the Supreme Court concerning any matter contained in the FLL. Entry 55 of the FLL simply provides that legislative competence with respect to jurisdiction and powers of all courts except the Supreme Court lies with Parliament. It further provides that Parliament is competent to legislate to the extent expressly authorized by or under the Constitution on the enlargement of the jurisdiction of the Supreme Court and the conferring of its supplemental powers. Meaning thereby that there can be no ordinary legislation with respect to the jurisdiction and powers of this Court or the enlargement of its jurisdiction unless it has been authorized expressly by or under the Constitution. This Court in the Baz Muhammad Kakar has interpreted Entry 55 as follows: ^[34]. At this juncture, it may also be noticed that Entry 55 of the Federal Legislative List (Fourth Schedule to the Constitution) authorizes the Parliament to make law on jurisdiction and powers of all courts with respect to any of the matters in the said List to such extent as is expressly authorized by or under the Constitution. Thus, the said Entry on the one hand limits the legislative power of the Parliament to the making of any law on the jurisdiction and powers of the Supreme Court, and on the other hand empowers the Parliament to make law for enlargement of the jurisdiction of the Supreme Court and the conferring of supplemental powers.

36. Entry No.55 of the Fourth Schedule, in terms of Article 70(4), prescribes that laws can be promulgated pertaining to jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List and, to such extent as is expressly authorized by or under the Constitution, the enlargement of the jurisdiction (emphasis provided) of the Supreme Court, and the conferring thereon of supplemental powers. Under this Entry, the Constitution maker consciously separated the Supreme Court from all other courts. A plain reading of the words of this Entry, particularly, the portion, where emphasis has been provided, not only creates distinction between the Supreme Court and other courts, but also speaks in respect of enlargement of the jurisdiction of the Supreme Court and conferring of supplemental powers. The literal rule of interpretation of the Constitution and statutes, also known as the golden rule of interpretation, is that the words and phrases used therein should be read keeping in view their plain meaning.^[155] (Emphasis Added)

45. In NICCC,^[156] this Court has interpreted Entry 55 read with Articles 175(2) and 142(a) as: ^[17].... In our view there is no ambiguity in interpreting Entry No.55 of Part I of the Federal Legislative List (Fourth Schedule) of the 1973 Constitution. Such Entry read with Articles 175(2) and 142(a) of the Constitution confers exclusive powers on the Parliament to make laws for enlargement of jurisdiction of the Supreme Court or conferring on supplemental powers.

If Entry No.55 was not there in the Federal Legislative List, it could be argued that under Article 175(2) of the Constitution, in respect of matters relating to Cooperative Societies exclusively falling under the competence of the Provincial Legislature, a law can validly be made by a Provincial Legislature enlarging jurisdiction of the Supreme Court and conferring on its supplemental powers but Article 175(2) is not to be interpreted in isolation. It has to be read and interpreted alongwith Article 142(a) and the Entries in the Legislative Lists. Under Entry No.55 of the Federal List, Federal Legislature is competent to make laws regarding jurisdiction and powers of all Courts (except the Supreme Court) with respect to any of the matters in such list. The other part of this entry makes the Federal Legislature competent to make laws enlargement of the Supreme Court and the conferring thereon the supplemental powers with the proviso that this is to such extent as is expressly authorised by or under the Constitution. Powers and jurisdiction conferred on the Supreme Court by the Constitution can neither be interfered with or varied nor taken away by Legislature. However, jurisdiction of the Supreme Court can be enlarged and supplementary powers can be conferred on the Supreme Court by "law" in view of the Article 175(2) of the Constitution, and Entry No.55 read with Article 142(a) of the Constitution leave no doubt that such enlargement of the jurisdiction and conferment of supplementary powers can only be done through law made by Federal Legislature.^[157] (Emphasis Added)

46. This court's ruling on Entry 55 in Baz Muhammad Kakar and NICCC is very clear that Parliament is competent to enact ordinary legislation by which the jurisdiction of the Supreme Court can be enlarged and conferred supplemental powers, only when it is provided by or under the Constitution. In the instant case, the Act establishes the appellate jurisdiction of this Court against an order passed under Article 184(3) of the Constitution being an order of this Court. So the issue is that a right of appeal is created against an order of the Supreme Court to its larger bench.

Effectively, it has enlarged the jurisdiction of this Court given in Article 185 of the Constitution.

However, the issue is that the original jurisdiction of this Court as well as the appellate jurisdiction has been already set out by the Constitution. This means that if an appeal is to be created, thereby expanding on the appellate jurisdiction of this Court under Article 185 of the Constitution, it can only be done through a constitutional amendment. An Act of Parliament cannot override or amend any provision of the Constitution. Furthermore, the intent of the Constitution-makers is clear as they did not provide any appeal against an order under Article 184(3) of the Constitution. If there is a desire to change this thinking, then it can only be done through a constitutional amendment.

Consequently, if the constitutional jurisdiction of this Court is to be enlarged, whether original, appellate, advisory or review, it must be through a constitutional amendment. To suggest that Parliament can enlarge the constitutional jurisdiction of this Court under Entry 55 would also suggest that Parliament can amend the Constitution by way of ordinary legislation, which would be in total conflict with the constitutional mandate.

Formation of a Full Court Bench and its Consequences

47. Throughout the proceedings, one of the questions that was repeatedly asked was with reference to the formation of a bench comprising of the full court to hear the instant Petitions under Article 184(3) of the Constitution. The objective of the full court sitting essentially was that since the matter concerns the practice and procedure of this Court, the collective wisdom of all the Judges should be taken with respect to the constitutionality of the Act. While a lot has been said to defend the sitting of the full court, the basic question remains unanswered as to what happens to the right of appeal under Section 5 of the Act as with the sitting of all the Judges in a petition under Article 184(3) of the Constitution, the right of appeal granted under Section 5 of the Act becomes redundant. This in turn means that a party, who can avail the right of appeal under the Act, will no longer be able to avail of that right since the full court heard the matter. It goes without saying that the right of appeal is a substantive right and, in this case, a statutory right granted by the legislature for a very specific purpose which is to provide a remedy to a party in the face of a petition under Article 184(3) of the Constitution, the order of which would attain finality. As per the Parliamentary debates, this was one of the primary concerns voiced and reasoned to legislate the Act, there is no remedy against an order in a petition filed under Article 184(3) of the Constitution.

By constituting a full bench, comprising all the Judges of this Court, the very purpose of Section 5 of the Act is defeated. It also suggests that this right of appeal can be denied by the Committee under Section 2 of the Act by constituting a full bench or even by constituting a larger bench, such that there are not enough Judges to hear the appeal. This goes to the root of the issue of legislative interference in the composition of benches as now due to the Act, in petitions under Article 184(3) of the Constitution, it may not be possible to sit as a full court or even a larger bench because the Committee will always have to be mindful of the right of appeal. To our minds, the fact that this Court does not enjoy the freedom to regulate itself, through the formation of benches, negates the principle of independence of the judiciary which is noticeably illustrated by the fact that the Supreme Court for the purposes of constituting benches is effected by Section 5 of the Act in that the legislature by way of the Act has curtailed the judicial power related to the constitution of benches.

48. Under the circumstances, this Court by way of its practice and procedure will not be able to sit as a full court in a petition under Article 184(3) of the Constitution simply because the right of appeal will be blocked and cannot be availed. It is not for this Court, by way of its practice and procedure, to prevent the exercise of any right granted by the statute to a litigating party, hence, we are fortified in our opinion that the Act interferes in the formation and constitution of benches which is inherently and constitutionally this Court's function. Furthermore, it has become difficult for this Court to sit as a full court or larger bench in matters under Article 184(3) of the Constitution given that by doing so it would deprive a party from exercising their right under Section 5 of the Act.

The significance of this, in the simplest of understanding, is that the statute grants a right of appeal which this Court cannot deprive a party from. In doing so the legislature has encroached upon a core function of this Court which is against the principles of independence of the judiciary and the separation of powers.

Maintainability of the Petitions

49. A lot was argued regarding the maintainability of the instant Petitions on the ground that there has been no breach of any fundamental right of any of the Petitioners on the basis of which they have approached the Supreme Court under Article 184(3) of the Constitution. However, it appears that the Petitions have been deemed as maintainable given the fact that the cases were heard at length on merit and that the opinion of the majority does not address the issue of maintainability.

Since the majority and concurring opinions and separate notes have all addressed the issues on merit, the issue of maintainability is now academic. However, notwithstanding the same, this Court has held that the independence of the judiciary in itself is a fundamental right and issues relating to independence, structure and functioning of the judiciary, are a matter of public importance.

158. This Court has also held that questions with respect to the independence of the judiciary, and access to justice will always be a matter that concerns the public at large, hence, issues raised to this extent are maintainable under Article 184(3) of the Constitution.^[159] Hence, we find that these Petitions are maintainable.

Conclusion

50. In view of the foregoing, we declare the Act to be ultra vires the Constitution as Parliament does not have legislative competence to make law on the subject of practice and procedure. We further declare that the rule-making power under Article 191 of the Constitution exclusively falls within the domain of the Supreme Court and is directly linked with the independence of the judiciary.

Therefore, these Petitions are allowed.

51. These are the reasons for our short order dated 11.10.2023, which are reproduced below: [F]or reasons to be recorded later these petitions are decided as under:

1. Subject to paras 2 and 3 below, by a majority of 10 to 5 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) the Supreme Court (Practice and Procedure) Act, 2023 (the Act) is sustained as being in accordance with the Constitution of the Islamic Republic of Pakistan (the Constitution') and to this extent the petitions are dismissed.

2. By a majority of 9 to 6 (Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A. Malik and Justice Shahid Waheed dissenting) subsection (1) of section 5 of the Act (granting a right of appeal prospectively) is declared to be in accordance with the Constitution and to this extent the petitions are dismissed.

Judgment

Shahid Waheed, J. I am not in accord with the opinion of the majority of the Court in these cases.

Fiat has gone forth, and the law at issue, except for section 5(2) thereof, has been upheld. Although it will not produce any immediate practical results, owing to its great importance, I think it necessary to put my reasons on the record for the intelligence of a future day when their judgment may possibly correct the error into which, I believe, with respect, the majority have misdirected themselves and arrived at a conclusion which does not fit into the scheme of the Constitution.

2. I gratefully adopt Ayesha A. Malik, J.'s account of the arguments presented in these petitions, and agree with her in concluding that the supplications therein are within the law.

3. These petitions mount a challenge to the lawfulness of the newly enacted law, namely, the Supreme Court (Practice and Procedure) Act, 2023 (PAPA), primarily on the ground that it is outwith the legislative competence and that it is a devious attempt, first to arrest the free functioning of this Court and then to wrest its independence. On the contrary, the position of the Government is that it has promulgated the PAPA to enforce the right to a fair trial and due process, the right to be dealt with in accordance with the law, and the right to equality of citizens. As such, these petitions are not maintainable as they do not seek to enforce any fundamental right. I think this preliminary objection is not well-founded. These petitions are brought within the original jurisdiction conferred upon this Court under Article 184 of the Constitution, which extends to only two kinds of cases: those involving a dispute between any two or more Governments and those involving a question of public importance concerning the enforcement of fundamental rights. This jurisdiction is somewhat of an oddity in that the Supreme Court acts as both the Trial Court and the Court of last resort in deciding such matters. Since this jurisdiction flows directly from the Constitution, it is self-executing without further Acts of the Parliament. According to this account, the Constitution vested this Court with original jurisdiction in such cases in order to match the seriousness of the claim to the status of this Court.^[160] In light of this, it would not be conducive to the dignity of this Court to allow the issue of its autonomy to be tried in any other Court.

4. That apart, it bears noting that the plain reading of clause (3) of Article 184 of the Constitution makes it clear that there is a three-stage requirement for the Supreme Court to take cognisance of a matter under the said clause: firstly, all that is needed is that there must be a "question"; secondly, the question raised needs to be in respect of public importance; and lastly, the question so raised needs to be of public importance about the enforcement of fundamental rights enshrined in the Constitution. The expression 'question' has to be understood in its ordinary or popular meaning, which, in my opinion, would be a matter requiring resolution or discussion. The 'question' so raised in this petition relates to the free functioning of this Court, the legislative competence of Parliament to regulate the practice and procedure of this Court and whether the enforcement of PAPA will result as an impediment to the public's access to justice. So, the first stage test is satisfied because the questions thus raised are not vague but clear in their purpose, requiring due deliberation. The purpose of these petitions is to preserve and protect the independence and autonomy of this Court, which in turn promotes the welfare of the people; as such, they raise a question of public importance and, therefore, satisfy the second stage test. The third test that needs to be qualified is whether the question in these petitions relates to the enforcement of any fundamental right guaranteed under the Constitution. The word "enforcement" draws special attention here. It was emphasised before us that these petitions are not maintainable, as they speak of presumptive violation of rights and do not seek to enforce any fundamental right. In articulating this stance, it was, I think, forgotten that the word "enforcement" in the context of Article 184(3) of the Constitution overtones that no law shall take away or abridge the right conferred by the Constitution but it also implies that ensuring compliance with one right must not involve violation of other fundamental rights. So, here we have been called upon to examine whether the PAPA while seeking to enforce Article 4, 10-A and 25, of the Constitution, strikes a balance with other guaranteed rights or vice versa contravenes other rights, such as independence of the judiciary, access to justice and whether the Parliament is competent to regulate the practice and procedure of this Court. As such, it would be in the fitness of things to open and keep open this Court to determine the 'questions' involved in these cases, and resultantly, the petitions are maintainable.

5. Coming to the competence of the Parliament, it will first be seen under which category the PAPA falls. Although it has the word "procedure" in its nomenclature, this is insufficient to ascertain its category. The fundamental nature of any statute cannot be determined by its name and description, but for that, a glance at its actual contents is essential. When we do, we find that it provides procedure for the constitution of benches, the exercise of original jurisdiction, the fixation of urgent cases, the retention of counsel of choice at the review stage, and the right to appeal.

These features suggest that it takes on the colour of procedural as well as substantive law.

Appellate remedy falls under the substantive provision, while the rest of the provisions fall under the scope of procedure. This analysis brings me to trace the source of such legislation. It is an old- line that our Parliament can derive its strength of legislation directly from the main body of the Constitution and also from the sphere of entries of its Fourth Schedule.^[161] In the present matter, the preamble to the PAPA itself states that it has been enacted pursuant to Articles 175(2) and 191 of the Constitution. This greatly simplifies my investigation, and thus, I consider these two provisions and examine whether they confer any power on the Parliament to enact PAPA.

6. Article 175(2) states that no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. By any canon of construction, it cannot be construed as a provision enabling Parliament to enact any law. It only talks about the types of jurisdiction of courts and classifies it into two categories, that is to say, 'constitutional jurisdiction' -- a jurisdiction conferred by the Constitution, and 'ordinary jurisdiction' -- a jurisdiction conferred by or under any law. In the latter part of this judgment, this Article will be dealt with in detail.

7. The other article, Article 191, circumscribes the power of the Supreme Court to make rules. It says that "subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court". The respondents argued before us that Article 191 is a direct source of legislation; it allows the framing of laws to regulate the practice and procedure of this Court, and the phrase 'subject to law' in essence, has been used in lieu of Act of the legislature to signify that such law regulating procedure may even be provincial in respect to the jurisdiction conferred by Provincial Assembly to this Court. So, what requires due consideration and has to be seen is the scope, meaning and intent of the framers of the Constitution to use the phrase 'subject to law' in Article 191. This Article has multiple related aspects, and I deem it appropriate to deal with each to explain that this provision could not be invoked to enact the PAPA.

8. The first thing that attracts my attention is the prefix of restrictive words 'subject to'. A similar phrase 'subject to' was used in Article VI, Section II, paragraph 3 of the State Constitution of New Jersey, 1947, which provided that "the Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts." The phrase 'subject to law' and the scope of the above Article came under discussion in the seminal case of Winberry^[162] where the contention was whether the appeal time frame formulated by a statute would prevail over the time frame formulated under the said Article by the Supreme Court. The Supreme Court of New Jersey held that the phrase 'subject to the law' implies limitation rather than a grant of power, and the rational interpretation is to construe it as substantive law, as distinguished from pleading and practice. The Court distinguished between substantive law, which defines the rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in courts. A parallel distinction can be seen in our Constitution as well. The Constitution expressly distinguishes between substantive and procedural law under Articles 175(2) and 191 respectively. At the cost of repetition, as discussed above, Article 175(2) states that jurisdiction is conferred on the Court, whereas, under Article 191, the Supreme Court may regulate its practice and procedure in line with the jurisdiction conferred upon it, so as not to invade the field of substantive law. Be it noted that where an Act of legislature confers a jurisdiction, the Act may provide for the procedure of the Court to the extent of the jurisdiction so conferred, but in no fashion can it be construed that an Act of the legislature may also regulate the rule-making power conferred by the Constitution on this Court, such as the constitution of benches and fixation of cases etcetera. The above illustration makes it clear that the restrictive phrase 'subject to' in Article 191 and the subsequent words 'the Constitution and the law' has been used to limit the power of the Supreme Court to make rules regulating its practice and procedure or I may say that the Supreme Court has been given the power to frame rules in conformity with the Constitution and the law -- nothing more and nothing less.

9. For the sake of argument, if Article 191 is deemed to be a source of legislative power, then what has to be determined is whether, concerning the practice and procedure of this Court, an Act of Parliament or the Supreme Court Rules, 1980 (SCR), will take precedence? This Court formulated the SCR, as was noted in Ghulam Mohiuddin^[163] in exercising its power conferred under Article 191. In Baz Muhammad Kakar^[164] it was held that in the presence of SCR, an Act of Parliament could not frame rules in contravention with SCR as the latter has 'Constitutional backing' and, thus, declared ultra vires section 12 of the Contempt of Court Act, 2012.

In Shaukat Aziz Siddiqui^[165] this Court held that if legislature infiltrates and influences the judiciary in the garb of procedure, constitutionally, such a law would be questionable as to the competence of the legislature and as violative of the fundamental right of independence of the judiciary.

Similarly, in Justice Khurshid Anwar Bhinder^[166] this Court concluded that the SCR hold a higher pedestal to an Act of Parliament for the reasons that the rules are promulgated based on the mandate bestowed upon it by the Constitution itself under Article 191 and not by a statute, the object of which was to preserve the independence of the judiciary and promote separation of powers. This leads me to the conclusion, and as this Court has persistently held throughout our jurisprudential development, that it is the Supreme Court that has the power to regulate its practice and procedure, and the SCR will always supersede ordinary legislation because the rules are, in other words, 'Constitutional Rules'^[167] and can only be overruled or amended by the Parliament through a constitutional amendment or by the Supreme Court itself.

10. Another important aspect to look at the matter and understand the true meaning and scope of the phrase 'subject to' and the intent with which it is used would be to gauge how it has been used elsewhere in the Constitution. A pattern can be seen as to the restrictive usage of the phrase 'subject to' in several articles of the Constitution. Such as Articles 17, 142(a) and 204. To comprehend how the phrase 'subject to' has a limiting and restrictive effect, a good example is Article 142(a), which provides that 'subject to' the Constitution, Parliament shall have exclusive powers to make laws concerning any matter in the Federal Legislative List. This clearly illustrates that under Article 142(a), the Parliament has been given exclusive power to legislate on any matter it thinks fit present in the Federal Legislative List, but subject to the Constitution, meaning that the law cannot be in contradiction with any Constitutional Article nor can it be beyond legislative competence as prescribed by the Constitution, which in turn shows that the phrase 'subject to' does not enable but restrict the Parliament to constitutional limitations, just as the Constitution has restricted this Court's power to regulate its practice and procedure under Article 191 so to not derogate from a jurisdiction conferred by any law or the Constitution.

11. While elaborating on the competence of Parliament to legislate on the practice and procedure of this Court, the respondents also sought to argue that the right of appeal against the Constitutional jurisdiction of Article 204 was conferred through an ordinary legislation of the Contempt of Court Ordinance, 2003 (CCO).^[168] This argument implied that the phrase 'subject to law' used in Article 204(3) had provided the legislature with the competence to enact the Contempt of Court Ordinance. So, the phrase 'subject to law' used in Article 191 also grants legislative competence to Parliament to regulate the practice and procedure of this Court. This argument is ill-founded. Article 204(3) provides that "the exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court". In my opinion, this argument, in substance, favours the petitioners. There is a clear distinction between Article 204(3) and Article 191. The phrase 'regulated by law' used in Article 204(3) has not been used in Article 191. It is this phrase that granted competence to the legislature to enact CCO, whereas the phrase 'subject to law' in Article 204(3) is a limitation on the Court to frame rules in accordance with the law and the Constitution. In the context of Article 204(3), the framers of the Constitution intended to enable the Parliament to regulate contempt of court, and they did so by adding 'regulated by law', which they intentionally did not add in Article 191. Needless to say, the power to regulate by law means the power to enact law. Thus, the right of appeal has rightly been provided under CCO, but the analogy that this validates the PAPA is incorrect and without any legal merit.

12. There is still another aspect of the matter that needs to be considered. If Article 191 is construed as a source of legislative power, then the Constitutional requirement to ascertain the independent functioning of the Supreme Court is abridged because the Parliament, by an ordinary Act, will be able to regulate the practice and procedure of the Supreme Court, which in its essence is a violation of the salient feature of trichotomy of powers, embedded in our Constitution. The Parliament cannot enact a law that conflicts with SCR without violating the trichotomy of powers.

This was foreseen by this Court and dilated upon in Baz Muhammad Kakar (supra) by categorically stating that if the legislature under Article 191 regulates the practice and procedure of the Supreme Court, in such eventuality, the executive would be issuing orders for constitution of benches of their choice for hearing particular cases which would be a violation of principles of independence of judiciary and denial of access to justice enshrined in Article 2A and 9 of the Constitution. A more significant problem this would lead to is that this legislative authority would also be exercisable through Ordinances if construed as a source of legislative power. An Ordinance, despite its legislative impact,^[169] is an act of the executive.^[170] This will unequivocally contradict Article 175(3), which stipulates an absolute separation of the executive from the judiciary. Thus, this would disrupt the fundamental structure of our Constitutional framework of trichotomy of powers. Another aspect may be briefly addressed; it was argued before us that the Parliament's intention was good in promulgating the PAPA. And so, can the PAPA be covered under Article 191 if it is based on the good intentions of Parliamentarians? Obviously not. Illegally doing a good thing is wrong, as the illegal morsel begets evil.^[171]

13. It has become evident that reference to Article 191 as a legislative source in the preamble of the PAPA was unfit. Is it sufficient to conclude that Parliament had no competence to enact PAPA? Not in the least. Courts have to make their utmost effort to save the law by exploring all angles and lean in favour of an Act of Parliament, as it is a requirement of constitutional interpretation, unless a law violates the Constitution, as was similarly held in Dr. Mobashir Hassan.^[172] In light of this principle, notwithstanding the inappropriate source citation in the preamble, we need to explore the second source of legislation, as stated above, the Federal Legislative List.^[173]

14. Article 142(a) of the Constitution provides exclusive jurisdiction to Parliament to make laws concerning matters in the Federal Legislative List.^[174] The above discussion and this Article bring me to examine Entry No.55 and 58. Entry No.55 provides that "to such extent as is expressly authorised by or under the Constitution the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers." By the plain reading of this Entry, it is clear that for Parliament to derive power from Entry No.55 to enact PAPA, a two-stage requirement needs to be fulfilled. Firstly, PAPA has to be in relation to a 'jurisdiction' conferred by the Constitution or by or under any law as stipulated by Article 175(2) of the Constitution. Secondly, it needs to have an enlarging effect on the 'jurisdiction' of the Supreme Court.

15. Regarding the first question, as stated above, the PAPA is a procedural law that does not confer any jurisdiction (substantive right or duty) on the Court, except for section 5 only, which provides the right of intra-court appeal against a judgment of this Court under Article 184(3) of the Constitution which in turn is an original jurisdiction. And so, the two-stage test is only to be seen to the extent of section 5. As I reckon, the word 'jurisdiction' in Entry No.55 is in reference to the term 'jurisdiction' used in Article 175(2). Still, an important distinction to note is that a jurisdiction so conferred by the Constitution can only be enlarged by a constitutional amendment and cannot be done by an ordinary Act of Parliament unless such an enlargement is expressly authorised by or under the Constitution. It was held by this Court in Wukala Mahaz Barai Tahafaz Dastoor^[175] that "as to the plea that paragraph (6) to Article 63A of the Constitution excludes the judicial review of the Courts and militates against Item No.55 of the Federal Legislative List, which envisages that the jurisdiction of the Supreme Court could not be curtailed, it may be observed that Item No.55 in the Federal Legislative List applies to ordinary legislative and not to Constitutional amendment."

Similarly, in National Industrial Cooperative Credit Corporation,^[176] this Court held that "powers and jurisdiction conferred on the Supreme Court by the Constitution can neither be interfered with nor varied nor taken away by the Legislature. However, the jurisdiction of the Supreme Court can be enlarged, and supplementary powers can be conferred on the Supreme Court by "law" in view of Article 175(2) of the Constitution, and Entry No.55 read with Article 142(a) of the Constitution leave no doubt that such enlargement of the jurisdiction and conferment of supplementary powers can only be done through law made by Federal Legislature." This makes it clear that Entry No.55 does not rescue PAPA for the reason that the majority Act is a procedural law and is not covered by Entry No.55. Section 5 provides a jurisdictional right against a constitutional jurisdiction which does not come under the scope of Entry No.55 because a constitutional jurisdiction can only be varied or enlarged if expressly authorised by or under the Constitution, whereas no such authorisation has been provided under Article 184 nor Article 185.

16. I am not required to ponder and address the second requirement as the first requirement has failed, but for clarity of some aspects connected to the first question, I deem it fit to address it briefly. To me, enlargement is a concept that describes the process of increasing the size or shape of a subject matter without altering its shape or proportions. Let me start by pointing out that the right of appeal under section 5 is not an enlargement of the original jurisdiction of Article 184(3) nor the appellate jurisdiction of Article 185 of the Constitution. Section 5 confers a new right of intra- court appeal, which did not exist prior to the enactment of section 5 of the PAPA, and so, is creating a jurisdiction and not enlarging it. This certainly cannot be done under Entry No.55, as its scope is limited to the enlargement of pre-existing jurisdiction conferred by law, and not the creation of a new jurisdiction. The same was held in Baz Muhammad Kakar (supra), where it was stated in paragraph 37 that "the enlargement of jurisdiction is to be understood under the Constitution that the jurisdiction of the Supreme Court may be extended territorially like adhering to Articles 246 and 247 as well as to confer further judicial powers and also conferring supplemental powers to expand the scope of the powers, which it is already exercising". The last phrase, "which it is already exercising", makes it clear that the jurisdiction has to pre-exist the Act if it is to enlarge the scope of jurisdiction. So, the PAPA also fails to qualify the second requirement as it does not deal with any existing jurisdiction conferred by law but has tried to create a new constitutional jurisdiction through an ordinary Act of Parliament, which it has no power to do.

17. Recourse to Entry No.58 would also be incorrect since it is a settled principle of law that if there is a restriction in one legislative entry about a particular subject matter, that restriction extends to all other general applicable entries on the said matter.^[177] For regulating the practice and procedure of this Court, the body of the Constitution has limited the power of Parliament under Article 191, as discussed above. It is Entry No.55 that exclusively deals with the jurisdiction of this Court; therefore, no other entry of the Constitution can be relied upon for legislative competence. The same was held by this Court in the case of Province of Punjab^[178] "nevertheless, if we read the legislative lists in the manner that they should be read, namely, that if there is a specific provision for a special subject in a particular item of a particular list, then that subject falls within that item of the said list and not under any general item". Hence, to say that Entry No.58, read with Article 191, provides competence to Parliament to legislate would undermine the fundamental framework of the Constitution by annihilating the objective of Article 191, which is to preserve and promote separation of powers between the judiciary and the executive. Also, in Part I of the Fourth Schedule of the Federal Legislative List, there are 59 entries, and to say that the practice and procedure of this Court will be covered under Entry No.58, which is a general clause on matters that "relate to the Federation", will in effect, cover every other entry in the schedule making the other entries redundant and purposeless. This certainly cannot be the intention of the Constitutional drafters.

Under the Fourth Schedule, entries where the Court has been expressly mentioned are the only entries applicable. Consequently, this Court's practice and procedure cannot be legislated under Entry No.58.

18. Article 191 of the Constitution clearly states that it is the responsibility of the Supreme Court to make its own rules regarding its practice and procedure. One may wonder why the Constitution has given the Supreme Court the exclusive power to make these rules and why not the Parliament or the Executive. The simple answer is to preserve the trichotomy of powers, but an in-depth reading uncovers further insights. This Court can regulate its practice and procedure under Article 191 for the following reasons: Firstly, the technicality in day-to-day proceedings and administration of the Court. This technical factor will be discussed later in this judgment and will highlight how the PAPA creates more complexities than it resolves. Secondly, the efficiency of this Court. It is apposite to state here that Parliament cannot be permitted to encroach on the administrative domain of this Court, for such intrusion inevitably will result in unforeseen contingencies. If allowed, only Parliament itself will be able to address these contingencies, as it would effectively assume control of the Court's administration. The process of enacting changes and amending laws within Parliament is time-consuming and does not align with the Court's or the interest of the public at large. This intrusion also undermines the efficiency and seamless operation of this Court, enabling another institution to assume control of its administration, consequently impacting the dispensation of justice to the nation. Thirdly, delegating powers to this Court to regulate its practice and procedure puts this Court in a position to use its discretion for speedy and flexible adjustment to new practical and technical developments without activating the legislative or executive machinery in motion for necessary amendments. Fourthly, urgent emergency powers where the national interest demands rapid and effective action, and thus, it is in democratic interest to equip this Court with extraordinary powers, such as to fix urgent matters before available judges, etcetera. In my view, for the noted reasons, the Constitution exclusively vests in the Supreme Court the power to regulate its practice and procedure so that not only trichotomy of powers can be preserved, but under the regulatory Article 191, this Court can also deal with all matters of administration, as it is most suited to do so. The Constitution ensures that the Court may establish detailed rules consistent with the Constitutional framework established for the smooth functioning of this Court and the perseverance and promotion of democracy. Therefore, the failure or omission to call a full court for the necessary amendment to SCR, as was argued before us and in Parliament, cannot be construed as giving the Parliament the right to intrude into the judicial domain and enact a law such as the PAPA without legislative competence. Such an eventuality can only occur if the Constitution plainly says so, and since it does not, a constitutional amendment may be required for such an action.

19. I have now reached the stage to evaluate the argument that claims that the PAPA has brought transparency in the day-to-day affairs of the Supreme Court, efficiency in its work, and increased its independence. To assess the soundness of this argument, we must remember that the marrow of the fundamental right of access to justice comprises the independence of the judiciary and speedy and inexpensive justice. If any legislation runs afoul of these aspects, it is deemed null and void. So, let's scrutinise the material provisions of the PAPA and determine whether they bolster or impede the independence and efficiency of the Supreme Court.

20. First comes section 2, which provides:

2. Constitution of Benches.-

(l) Every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the Committee comprising the Chief Justice of Pakistan and the two next most senior judges, in order of seniority.

(2) Soon after commencement of this Act, the Committee constituted under sub-section (l) shall hold its first meeting to determine its procedure, including for holding meetings and constitution of Benches etc: Provided that, till such time the procedure is determined under this sub-section, the meeting of the Committee for the purposes of sub-section (1) shall be convened by the Chief Justice or other two members of the Committee, as the case may be.

(3) The decisions of the Committee shall be by majority.

There are several defects in this section which can only be corrected via further legislation since the field which the SCR previously occupied is now sought to be occupied by the PAPA. By the plain reading of this section, the following are the unavoidable corollaries. Firstly, if one of the judges on the committee is not present, who will replace that member? Legally, no judge or other person can replace a member of the committee unless the Parliament amends section 2 in a way that delegates such powers to the committee to appoint a temporary member in the absence of one member. Secondly, what if the two members of the committee decide to send the Chief Justice to another provincial branch registry. As absurd as it sounds, it can very much be done, which will have serious consequences as the Chief Justice is the administrative head of this Court and has a crucial role in the day-to-day affairs. Lastly, what if one member of the committee is out of the country, the other becomes indisposed, and there is a severe national emergency; there is no remedy provided in the PAPA to deal with such a situation, and as a result, chaos would ensue, and the entire system would be disrupted. Again, it is crucial to note that these challenges will only increase over time, and the Court lacks any remedy to address these problems. This will significantly undermine institutional efficacy and render it largely unworkable.

21. There are two things to be noted about sections 3 and 4 of the PAPA, which are as follows:

3. Exercise of original jurisdiction by the Supreme Court. Any matter invoking the exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be first placed before the Committee constituted under section 2 for examination and if the Committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part ll of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the Committee, for adjudication of the matter.

4. Interpretation of the Constitution.- ln the matters where interpretation of the constitutional provision is involved, Committee shall constitute a Bench comprising not less than five Judges of the Supreme Court.

The first is that under section 3, a matter invoking the original jurisdiction of this Court under Article 184(3) shall be first placed before the Committee constituted under section 2, which, in essence, means that the committee will decide whether a petition under Article 184(3) is maintainable or not. The problem with this is that the Constitution under Article 184(3) contemplates that the issue of maintainability has to be decided by this Court in its judicial capacity, whereas the committee of three judges is an administrative function. The question arises whether this judicial function bestowed on this Court by the Constitution itself can be delegated to an administrative body. I am afraid the answer, simply, is no. A judicial function is one where a court decides a matter as per law after hearing arguments for and against a case.^[179] This has also been settled in our jurisprudence that the issue of maintainability of a petition can only be decided judicially unless otherwise provided.^[180] For the administrative committee to decide on maintainability, a constitutional amendment to Article 184(3) is required and cannot be done through ordinary legislation. Thus, on this point alone, section 3 is ultra vires the Constitution, but the second point must also be addressed to comprehend PAPA's actual effect better. The second part of the section provides that for matters of fundamental rights invoking Article 184(3), not less than a three- member bench is to be constituted by the committee. Section 4 of the PAPA seeks for the constitution of at least a five-member bench for matters involving interpretation of the Constitution. Matters of fundamental rights, unquestionably, are matters of constitutional interpretation. Under section 3, a three-member bench can interpret these constitutional provisions, but under section 4, a three-member bench cannot. As a direct result, section 3 and section 4 are contradictory and, thus, anomalous. What also must briefly be noted is that thousands of cases each year are filed before this Court, many of which raise questions of constitutional interpretation; if all such cases are to be placed before a five-member larger bench, this will, again, adversely affect the administration of justice by this Court, where already 50,000 and more cases are pending. This demonstrates how the PAPA impedes the speedy administration of justice through its asinine nature.

21. As discussed above, the PAPA is a procedural law that governs the practice and procedure of the Supreme Court. However, section 5 is the only section of the PAPA which provides a substantive right of appeal against an order passed under the original jurisdiction, that is, Article 184(3), which is not a matter of procedure.^[181] Thus, it is clear that reference to Article 175(2) in the preamble of the PAPA appears only to the extent of section 5, as that is the only section which deals with the 'jurisdiction' of this Court. It is reiterated that Article 175(2) stipulates only two types of jurisdictions conferred on the Supreme Court, one by the Constitution itself and the other by or under the statute. The Constitution confers different jurisdictions on the Supreme Court, which includes original jurisdiction, appellate jurisdiction, and advisory jurisdiction. Here, we are concerned with the original jurisdiction, which cannot be expanded or restricted by an Act of parliament. Two more things are worth noting about this. One, the right of appeal is not provided by the Constitution against an order made under Article 184(3). Second, such a right, as stated above, cannot be granted by making an Act under Entry No.55 of the Federal Legislative List. This is because, under Article 184(3), the Supreme Court only deals with matters of public importance and not individuals.

These matters are about fundamental rights and require prompt attention for finality and certainty.

If these issues are left unattended or at the mercy of the vicissitude of the ladder of litigation, it can negatively impact public welfare, peace and order in the Country. Therefore, no right of appeal was provided on purpose and knowingly by the drafters of the Constitution. Even so, the Parliament has provided an appeal under Section 5 of the PAPA, which, in my view, violates the Constitution and extinguishes the swiftness of the Supreme Court in redressing wrongs about fundamental rights apart from extending and increasing litigation. Given this situation, I think this Court, through the practice of judicial review, is obliged to hold that the will of the whole people, as expressed in the Constitution, is supreme over the will of the Parliament, whose statute expresses only the temporary will of part of the people.^[182]

23. It is taken as read that the justice delivery system is the bedrock of the rule of law, which is a salient feature of our Constitution. It is my view that in the absence of an independent, effective and efficient court system, it would not be possible to sustain the rule of law in the Country. It is, therefore, necessary that the courts should be allowed to perform their functions in an atmosphere of independence and should be free from all kinds of interference from within or outside. The autonomy is not a matter of compromise; it is the soul and inner strength of the Supreme Court, which helps it safeguard the fundamental rights and civil liberties of the people against executive actions and encroachment by other powerful groups. Therefore, the Constitution by Article 175(3) mandated that the judiciary be separated from the executive. In contrast, the upshot of the discussion about the effects of the material provisions of the PAPA leads me to an irresistible conclusion that the PAPA is a spanner in the free and efficient functioning of the Supreme Court, which is requisite to guard the Constitution. So, on this count, too, the PAPA cannot sustain.

24. I, therefore, allow these petitions in light of the interpretation adopted by me and declare the PAPA to be ultra vires the Constitution.

25. Hereinabove are my reasons for the short order dated 11 of October, 2023.

Judgment

Shahid Waheed, J. I am not in accord with the opinion of the majority of the Court in these cases.

2. I gratefully adopt Ayesha A. Malik, J.'s account of the arguments presented in these petitions, and agree with her in concluding that the supplications therein are within the law.th

3. These petitions mount a challenge to the lawfulness of the newly enacted law, namely, the Supreme Court (Practice and Procedure) Act, 2023 (PAPA), primarily on the ground that it is outwith the legislative competence and that it is a devious attempt, first to arrest the free functioning of this Court and then to wrest its independence. On the contrary, the position of the Government is that it has promulgated the PAPA to enforce the right to a fair trial and due process, the right to be dealt with in accordance with the law, and the right to equality of citizens. As such, these petitions are not maintainable as they do not seek to enforce any fundamental right. I think this preliminary objection is not well-founded. These petitions are brought within the original jurisdiction conferred upon this Court under Article 184 of the Constitution, which extends to only two kinds of cases: those involving a dispute between any two or more Governments and those involving a question of public importance concerning the enforcement of fundamental rights. This jurisdiction is somewhat of an oddity in that the Supreme Court acts as both the Trial Court and the Court of last resort in deciding such matters. Since this jurisdiction flows directly from the Constitution, it is self-executing without further Acts of the Parliament. According to this account, the Constitution vested this Court with original jurisdiction in such cases in order to match the seriousness of the claim to the status of this Court.^[183] In light of this, it would not be conducive to the dignity of this Court to allow the issue of its autonomy to be tried in any other Court.

These features suggest that it takes on the colour of procedural as well as substantive law.

Appellate remedy falls under the substantive provision, while the rest of the provisions fall under the scope of procedure. This analysis brings me to trace the source of such legislation. It is an old- line that our Parliament can derive its strength of legislation directly from the main body of the Constitution and also from the sphere of entries of its Fourth Schedule.^[184] In the present matter, the preamble to the PAPA itself states that it has been enacted pursuant to Articles 175(2) and 191 of the Constitution. This greatly simplifies my investigation, and thus, I consider these two provisions and examine whether they confer any power on the Parliament to enact PAPA.

8. The first thing that attracts my attention is the prefix of restrictive words 'subject to'. A similar phrase 'subject to' was used in Article VI, Section II, paragraph 3 of the State Constitution of New Jersey, 1947, which provided that "the Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts." The phrase 'subject to law' and the scope of the above Article came under discussion in the seminal case of Winberry^[185] where the contention was whether the appeal time frame formulated by a statute would prevail over the time frame formulated under the said Article by the Supreme Court. The Supreme Court of New Jersey held that the phrase 'subject to the law' implies limitation rather than a grant of power, and the rational interpretation is to construe it as substantive law, as distinguished from pleading and practice. The Court distinguished between substantive law, which defines the rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in courts. A parallel distinction can be seen in our Constitution as well. The Constitution expressly distinguishes between substantive and rocedural law under Articles 175(2) and 191 respectively. At the cost of repetition, as discussed above, Article 175(2) states that jurisdiction is conferred on the Court, whereas, under Article 191, the Supreme Court may regulate its practice and procedure in line with the jurisdiction conferred upon it, so as not to invade the field of substantive law. Be it noted that where an Act of legislature confers a jurisdiction, the Act may provide for the procedure of the Court to the extent of the jurisdiction so conferred, but in no fashion can it be construed that an Act of the legislature may also regulate the rule-making power conferred by the Constitution on this Court, such as the constitution of benches and fixation of cases etcetera. The above illustration makes it clear that the restrictive phrase 'subject to' in Article 191 and the subsequent words 'the Constitution and the law' has been used to limit the power of the Supreme Court to make rules regulating its practice and procedure or I may say that the Supreme Court has been given the power to frame rules in conformity with the Constitution and the law -- nothing more and nothing less.

9. For the sake of argument, if Article 191 is deemed to be a source of legislative power, then what has to be determined is whether, concerning the practice and procedure of this Court, an Act of Parliament or the Supreme Court Rules, 1980 (SCR), will take precedence? This Court formulated the SCR, as was noted in Ghulam Mohiuddin^[186] in exercising its power conferred under Article 191. In Baz Muhammad Kakar^[187] it was held that in the presence of SCR, an Act of Parliament could not frame rules in contravention with SCR as the latter has 'Constitutional backing' and, thus, declared ultra vires section 12 of the Contempt of Court Act, 2012.

In Shaukat Aziz Siddiqui^[188] this Court held that if legislature infiltrates and influences the judiciary in the garb of procedure, constitutionally, such a law would be questionable as to the competence of the legislature and as violative of the fundamental right of independence of the judiciary. Similarly, in Justice Khurshid Anwar Bhinder^[189] this Court concluded that the SCR hold a higher pedestal to an Act of Parliament for the reasons that the rules are promulgated based on the mandate bestowed upon it by the Constitution itself under Article 191 and not by a statute, the object of which was to preserve the independence of the judiciary and promote separation of powers. This leads me to the conclusion, and as this Court has persistently held throughout our jurisprudential development, that it is the Supreme Court that has the power to regulate its practice and procedure, and the SCR will always supersede ordinary legislation because the rules are, in other words, 'Constitutional Rules'^[190] and can only be overruled or amended by the Parliament through a constitutional amendment or by the Supreme Court itself.

This clearly illustrates that under Article 142(a), the Parliament has been given exclusive power to legislate on any matter it thinks fit present in the Federal Legislative List, but subject to the Constitution, meaning that the law cannot be in contradiction with any Constitutional Article nor can it be beyond legislative competence as prescribed by the Constitution, which in turn shows that the phrase 'subject to' does not enable but restrict the Parliament to constitutional limitations, just as the Constitution has restricted this Court's power to regulate its practice and procedure under Article 191 so to not derogate from a jurisdiction conferred by any law or the Constitution.

11. While elaborating on the competence of Parliament to legislate on the practice and procedure of this Court, the respondents also sought to argue that the right of appeal against the Constitutional jurisdiction of Article 204 was conferred through an ordinary legislation of the Contempt of Court Ordinance, 2003 (CCO).^[191] This argument implied that the phrase 'subject to law' used in Article 204(3) had provided the legislature with the competence to enact the Contempt of Court Ordinance. So, the phrase 'subject to law' used in Article 191 also grants legislative competence to Parliament to regulate the practice and procedure of this Court. This argument is ill-founded. Article 204(3) provides that "the exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court". In my opinion, this argument, in substance, favours the petitioners. There is a clear distinction between Article 204(3) and Article 191. The phrase 'regulated by law' used in Article 204(3) has not been used in Article 191. It is this phrase that granted competence to the legislature to enact CCO, whereas the phrase 'subject to law' in Article 204(3) is a limitation on the Court to frame rules in accordance with the law and the Constitution. In the context of Article 204(3), the framers of the Constitution intended to enable the Parliament to regulate contempt of court, and they did so by adding 'regulated by law', which they intentionally did not add in Article 191. Needless to say, the power to regulate by law means the power to enact law. Thus, the right of appeal has rightly been provided under CCO, but the analogy that this validates the PAPA is incorrect and without any legal merit.

This was foreseen by this Court and dilated upon in Baz Muhammad Kakar (supra) by categorically stating that if the legislature under Article 191 regulates the practice and procedure of the Supreme Court, in such eventuality, the executive would be issuing orders for constitution of benches of their choice for hearing particular cases which would be a violation of principles of independence of judiciary and denial of access to justice enshrined in Article 2A and 9 of the Constitution. A more significant problem this would lead to is that this legislative authority would also be exercisable through Ordinances if construed as a source of legislative power. An Ordinance, despite its legislative impact,^[192] is an act of the executive.^[193] This will unequivocally contradict Article 175(3), which stipulates an absolute separation of the executive from the judiciary. Thus, this would disrupt the fundamental structure of our Constitutional framework of trichotomy of powers. Another aspect may be briefly addressed; it was argued before us that the Parliament's intention was good in promulgating the PAPA. And so, can the PAPA be covered under Article 191 if it is based on the good intentions of Parliamentarians? Obviously not. Illegally doing a good thing is wrong, as the illegal morsel begets evil.^[194]

13. It has become evident that reference to Article 191 as a legislative source in the preamble of the PAPA was unfit. Is it sufficient to conclude that Parliament had no competence to enact PAPA? Not in the least. Courts have to make their utmost effort to save the law by exploring all angles and lean in favour of an Act of Parliament, as it is a requirement of constitutional interpretation, unless a law violates the Constitution, as was similarly held in Dr. Mobashir Hassan.^[195] In light of this principle, notwithstanding the inappropriate source citation in the preamble, we need to explore the second source of legislation, as stated above, the Federal Legislative List.^[196]

14. Article 142(a) of the Constitution provides exclusive jurisdiction to Parliament to make laws concerning matters in the Federal Legislative List.^[197] The above discussion and this Article bring me to examine Entry No.55 and 58. Entry No.55 provides that "to such extent as is expressly authorised by or under the Constitutio the enlargement of the jurisdiction of the Supreme Court, and the conferring thereon of supplemental powers." By the plain reading of this Entry, it is clear that for Parliament to derive power from Entry No.55 to enact PAPA, a two-stage requirement needs to be fulfilled. Firstly, PAPA has to be in relation to a 'jurisdiction' conferred by the Constitution or by or under any law as stipulated by Article 175(2) of the Constitution. Secondly, it needs to have an enlarging effect on the 'jurisdiction' of the Supreme Court.

15. Regarding the first question, as stated above, the PAPA is a procedural law that does not confer any jurisdiction (substantive right or duty) on the Court, except for section 5 only, which provides the right of intra-court appeal against a judgment of this Court under Article 184(3) of the Constitution which in turn is an original jurisdiction. And so, the two-stage test is only to be seen to the extent of section 5. As I reckon, the word 'jurisdiction' in Entry No.55 is in reference to the term 'jurisdiction' used in Article 175(2). Still, an important distinction to note is that a jurisdiction so conferred by the Constitution can only be enlarged by a constitutional amendment and cannot be done by an ordinary Act of Parliament unless such an enlargement is expressly authorised by or under the Constitution. It was held by this Court in Wukala Mahaz Barai Tahafaz Dastoor^[198] that "as to the plea that paragraph (6) to Article 63A of the Constitution excludes the judicial review of the Courts and militates against Item No.55 of the Federal Legislative List, which envisages that the jurisdiction of the Supreme Court could not be curtailed, it may be observed that Item No.55 in the Federal Legislative List applies to ordinary legislative and not to Constitutional amendment."

Similarly, in National Industrial Cooperative Credit Corporation,^[199] this Court held that "powers and jurisdiction conferred on the Supreme Court by the Constitution can neither be interfered with nor varied nor taken away by the Legislature. However, the jurisdiction of the Supreme Court can be enlarged, and supplementary powers can be conferred on the Supreme Court by "law" in view of Article 175(2) of the Constitution, and Entry No.55 read with Article 142(a) of the Constitution leave no doubt that such enlargement of the jurisdiction and conferment of supplementary powers can only be done through law made by Federal Legislature." This makes it clear that Entry No.55 does not rescue PAPA for the reason that the majority Act is a procedural law and is not covered by Entry No.55. Section 5 provides a jurisdictional right against a constitutional jurisdiction which does not come under the scope of Entry No.55 because a constitutional jurisdiction can only be varied or enlarged if expressly authorised by or under the Constitution, whereas no such authorisation has been provided under Article 184 nor Article 185.

The same was held by this Court in the case of Province of Punjab^[201] "nevertheless, if we read the legislative lists in the manner that they should be read, namely, that if there is a specific provision for a special subject in a particular item of a particular list, then that subject falls within that item of the said list and not under any general item". Hence, to say that Entry No.58, read with Article 191, provides competence to Parliament to legislate would undermine the fundamental framework of the Constitution by annihilating the objective of Article 191, which is to preserve and promote separation of powers between the judiciary and the executive. Also, in Part I of the Fourth Schedule of the Federal Legislative List, there are 59 entries, and to say that the practice and procedure of this Court will be covered under Entry No.58, which is a general clause on matters that "relate to the Federation", will in effect, cover every other entry in the schedule making the other entries redundant and purposeless. This certainly cannot be the intention of the Constitutional drafters.

20. First comes section 2, which provides:

2. Constitution of Benches.-

(3) The decisions of the Committee shall be by majority.

To assess this section's effect in practice, we must consider the inevitable implications. Before doing so, it is important to briefly note here that the rules regulating the procedure that is to be framed under sub-Section (2) of Section 2 cannot go beyond the scope of the Act, and consequently, the Committee is not authorised to address any shortcomings in the PAPA. There are several defects in this section which can only be corrected via further legislation since the field which the SCR previously occupied is now sought to be occupied by the PAPA. By the plain reading of this section, the following are the unavoidable corollaries. Firstly, if one of the judges on the committee is not present, who will replace that member? Legally, no judge or other person can replace a member of the committee unless the Parliament amends section 2 in a way that delegates such powers to the committee to appoint a temporary member in the absence of one member. Secondly, what if the two members of the committee decide to send the Chief Justice to another provincial branch registry. As absurd as it sounds, it can very much be done, which will have serious consequences as the Chief Justice is the administrative head of this Court and has a crucial role in the day-to-day affairs. Lastly, what if one member of the committee is out of the country, the other becomes indisposed, and there is a severe national emergency; there is no remedy provided in the PAPA to deal with such a situation, and as a result, chaos would ensue, and the entire system would be disrupted. Again, it is crucial to note that these challenges will only increase over time, and the Court lacks any remedy to address these problems. This will significantly undermine institutional efficacy and render it largely unworkable.

21. There are two things to be noted about sections 3 and 4 of the PAPA, which are as follows:

The first is that under section 3, a matter invoking the original jurisdiction of this Court under Article 184(3) shall be first placed before the Committee constituted under section 2, which, in essence, means that the committee will decide whether a petition under Article 184(3) is maintainable or not. The problem with this is that the Constitution under Article 184(3) contemplates that the issue of maintainability has to be decided by this Court in its judicial capacity, whereas the committee of three judges is an administrative function. The question arises whether this judicial function bestowed on this Court by the Constitution itself can be delegated to an administrative body. I am afraid the answer, simply, is no. A judicial function is one where a court decides a matter as per law after hearing arguments for and against a case.^[202] This has also been settled in our jurisprudence that the issue of maintainability of a petition can only be decided judicially unless otherwise provided.^[203] For the administrative committee to decide on maintainability, a constitutional amendment to Article 184(3) is required and cannot be done through ordinary legislation. Thus, on this point alone, section 3 is ultra vires the Constitution, but the second point must also be addressed to comprehend PAPA's actual effect better. The second part of the section provides that for matters of fundamental rights invoking Article 184(3), not less than a three- member bench is to be constituted by the committee. Section 4 of the PAPA seeks for the constitution of at least a five-member bench for matters involving interpretation of the Constitution. Matters of fundamental rights, unquestionably, are matters of constitutional interpretation. Under section 3, a three-member bench can interpret these constitutional provisions, but under section 4, a three-member bench cannot. As a direct result, section 3 and section 4 are contradictory and, thus, anomalous. What also must briefly be noted is that thousands of cases each year are filed before this Court, many of which raise questions of constitutional interpretation; if all such cases are to be placed before a five-member larger bench, this will, again, adversely affect the administration of justice by this Court, where already 50,000 and more cases are pending. This demonstrates how the PAPA impedes the speedy administration of justice through its asinine nature.

22. As discussed above, the PAPA is a procedural law that governs the practice and procedure of the Supreme Court. However, section 5 is the only section of the PAPA which provides a substantive right of appeal against an order passed under the original jurisdiction, that is, Article 184(3), which is not a matter of procedure.^[204] Thus, it is clear that reference to Article 175(2) in the preamble of the PAPA appears only to the extent of section 5, as that is the only section which deals with the 'jurisdiction' of this Court. It is reiterated that Article 175(2) stipulates only two types of jurisdictions conferred on the Supreme Court, one by the Constitution itself and the other by or under the statute. The Constitution confers different jurisdictions on the Supreme Court, which includes original jurisdiction, appellate jurisdiction, and advisory jurisdiction. Here, we are concerned with the original jurisdiction, which cannot be expanded or restricted by an Act of parliament. Two more things are worth noting about this. One, the right of appeal is not provided by the Constitution against an order made under Article 184(3). Second, such a right, as stated above, cannot be granted by making an Act under Entry No.55 of the Federal Legislative List. This is because, under Article 184(3), the Supreme Court only deals with matters of public importance and not individuals.

These matters are about fundamental rights and require prompt attention for finality and certainty.

24. I, therefore, allow these petitions in light of the interpretation adopted by me and declare the PAPA to be ultra vires the Constitution.

25. Hereinabove are my reasons for the short order dated 11th of October, 2023.

1. Comprising of the Chief Justice and seven Judges.

^[2]Gazette of Pakistan, Extraordinary, dated 21 April 2023.

3. Justice Qazi Faez Isa.

4. CMAs No. 3166, 3199 and 4207/2023.

5. Comprising of the Chief Justice and fourteen Judges.

6. CMA No. 3991/2023.

7. CMAs No. 3160, 7936 and 8303/2023.

8. CMA No. 4207/2023.

9. Constitution of the Islamic Republic of Pakistan, Part VII, Articles 175 to 212.

10. Ibid., Article 175(2).

11. Ibid., Article 184.

12. Ibid., Article 185.

13. Ibid., Article 186.

14. Ibid., Article 186A.

15. Ibid., Article 188.

16. Ibid., Article 204.

17. Ibid., Article 212(3).

18. Ibid., Article 4(1).

19. Ibid., Article 10A.

20. Ibid., Article 11(1).

21. Ibid., Article 227.

22. Ibid., Article 2.

23. Ibid., Preamble/Objectives Resolution, which is now a, 'substantive part of the Constitution and shall have effect accordingly' as stipulated in Article 2A.

24. Al Qur'an, surah Ash-Shura (42) verse 38.

25. To cite just two examples, the Pakistani Islamic scholar Abul A'la Maududi (1903-1979) in his Tafhim Al- Qur'an (vol. 4, pp. 508-510) and the great Qur'anic exegete and hadith scholar (muhaddith) of Cordoba, Spain Abu Abdullah Muhammad bin Ahmad al-Qurtabi (1214-1273) in his Al-Jami li-Ahkam Al-Qur'an (vol. 18, pp. 586-588).

26. London St. Tramways Co. v. London County Council [1898], A.C. 375.

27. Constitution of the Islamic Republic of Pakistan, Article 189.

28. Practice Statement, [1966] 3 All E.R. 77 (H.L.) (U.K.).

29. 1885.

30. Marshall, Geoffrey, 'The Theory of Convention Since Dicey', Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford, 1987; online edn, Oxford Academic, 22 Mar. 2012).

31. 1975 LQR 218, 228.

32. Adegbenro v. Akintola (1963) 3 All ER 544.

33. (1982) 125 DLR (3d) 1.

34. PLD 1977 Supreme Court 397.

35. Second edition, Vol. 1, p. 96.

36. Malik Asad Ali v Federation of Pakistan, PLD 1998 SC 161.

37. (2005) UKHL 56.

38. Christopher M. Larkins, 'Judicial Independence and Democratization: A Theoretical and Conceptual Analysis.' The American Journal of Comparative Law, vol. 44, no. 4, 1996, pp. 605-26.

39. Generally, surah an-Nisa' (4), verse 59 is cited for the right to appeal. Moreover, there are several Qur'anic verses and Prophetic traditions which emphasize that human beings could commit error and that whenever an error in a judgment becomes apparent, it needs to be corrected. 'Every son of Adam commits error; and among those who commit error those who repent are the best' (Sunan al-Tirmidhi, Abwab Sifat al-Qiyamah, Hadith No. 2499). The Shariat Appellate Bench of the Supreme Court declared that the Islamic Injunctions mandate at least one right to appeal in Federation of Pakistan v General Public, PLD 1988 Supreme Court 202 and in Pakistan v General Public, PLD 1989 Supreme Court 6.

^[40]Section 4 of the Enforcement of the Shariah Act, 1991 stipulates: 'For the purpose of this Act (a) while interpreting the statute law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court; and (b) where two or more interpretations are equally possible, the interpretation which advances the Principles of Policy and Islamic provisions in the Constitution shall be adopted by the Court.'

^[41]Article 67 (Parliament)

67. (1) Subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the House shall not be invalid on the ground that some persons who were not entitled to do so sat, voted or otherwise took part in the proceedings.

2) Until rules are made under clause (1), the procedure and conduct of business in a House shall be regulated by the rules of procedure made by the President.

^[42]Article 90 and 99 (Executive)

90. (1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister, who shall be the chief executive of the Federation.

(2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.

99. (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President.

(2) The [Federal Government] shall be rules specify the manner in which orders and other instruments made and executed [in the name of the President] shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the President.

(3) The Federal Government shall also make rules for the allocation and transaction of its business.

^[43]Relevant Provisions of Chief Justice of Pakistan under the Constitution ArticleTitle of the Article Text of the Article 10(4)Safeguards as to arrest and detentionAppointment of Chairman and two members of the Federal Review Board 146(3)Power of the Federation to confer Provinces to entrust functions to the Federation.Appoint arbitrator in respect of any extra costs of administration incurred by the Province in connection with the exercise of those powers or the discharge of transferred functions and duties of the Federation.

152 Acquisition of land for Federal purposesAppoint arbitrator in relation to the agreement between the Federation and the Province relating to acquiring land on behalf, and at the expense, of the Federation or, if the land belongs to the Province, to transfer it to the Federation.

159(4)Broadcasting and telecastingAppoint arbitrator to resolve any question arising whether any conditions imposed on any Provincial Government are lawfully imposed, or whether any refusal by the Federal Government to entrust functions is unreasonable.

168(2)Auditor General of PakistanAdminister oath of office to the Auditor-General 175AAppointment of Judges to the Supreme Court, High Courts and Federal Shariat CourtsFor Appointment of Judges to the Supreme Court, High Courts and Federal Shariat Courts, the Chief Justice of Pakistan shall be the Chairman Commission.

178 Oath of officeAdminister oath of office to the Judge of the Supreme Court 182 Appointment of ad-hoc judgesAppointment of Ad-hoc judges of the Supreme Court 183(2)Seat of the Supreme CourtThe Supreme Court may from time to time sit in such other places as the Chief Justice of Pakistan, with the approval of the President, may appoint.

200Transfer of High Court judgesConsultee for the transfer of Judges from one High Court to another.

209Supreme Judicial CouncilMember of the Supreme Judicial Council of Pakistan 214 Oath of Office of Chief Election CommissionerBefore entering upon office, the Commissioner shall make before the Chief Justice of Pakistan and a member of the Election Commission shall make before the Commissioner] oath in the form set-out in the Third Schedule.

44. This Act served as the first Constitution of Pakistan till promulgation of the 1956 Constitution.

45. Richard Wagner, Chief Justice of Canada.

46. Such as, in Articles 4, 9 ad 24(1), etc.

47. Such as, in Articles 175(2), 191, 202 and 275(5), etc.

48. On this point, I am fortified by the opinion of Justice Case in Winberry v. Salisbury 5 N.J. 240 (1950) who interpreted in the same way, the phrase "subject to law" in a similar provisions of Article VI, Section II, paragraph 3 of the Constitution of the State of New Jersey (USA) which provides that "The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts."

49. Such as, Article 8 of the Constitution that prohibits making of any law which takes away or abridges any of the fundamental rights guaranteed by the Constitution.

50. Such as, Article 208 of the Constitution that confers the power, without making it subject to the Constitution or law, on the Supreme Court, the Federal Shariat Court and the High Courts to make rules for the appointment of officers and servants of those Courts and for their terms and conditions.

51. See The Constitution, Article 141.

52. Sui Southern Gas Company v. Federation of Pakistan 2018 SCMR 802.

^[53]On this point, I am fortified by the opinion of Justice Hawkins in Hall v. State, 539 So. 2d 1338 (Miss. 1989), who has taken a similar view on the subject of enacting law by the Legislature on the subject of procedure of courts by holding inter alia that the power of the legislative organ of the State, being the voice of the people, extends to all subjects not prohibited by the Federal or State Constitution.

^[54]The principle was enunciated by the Privacy Council in Colonial Sugar Refining Co. v. Irving (1905) AC 369, and adopted by this Court in Sutlej Cotton Mills v. Industrial Court PLD 1966 SC 472 (5MB).

55. Section 3 of the Law Reforms Ordinance 1972 provides for an intra-court appeal against a decree or a final order of a Single Bench of the High Court, passed in the exercise of original civil jurisdiction.

56. Zafar Yab v. Settlement Commissioner 1985 CLC 2647 (DB).

57. Sh. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504.

58. Province of Punjab v. National Industrial Cooperative Credit Corporation 2000 SCMR 567.

59. Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923.

60. Haider Automobile v. Pakistan 1969 SC 623 (5MB); Molasses Trading v. Federation of Pakistan 1993 SCMR 1905 (5MB).

^[61]Annoor Textile v. Federation of Pakistan PLD 1994 SC 568.

62. The Constitution, Article 12.

63. Powers to constitute benches and invoke suo motu original jurisdiction.

64. James Madison, The Federalist, ed. Jacob E. Cooke (Wesleyan University Press, 1961).

65. See my opinions in Hadayat Ullah v. Federation of Pakistan 2022 SCMR 1691 and Imran Khan v. Federation of Pakistan 2023 SCP 326.

66. Ex parte Randolph, 20 F. Cas. 242 (1833) per Marshall, C. J.

67. Pakistan Bar Council and Supreme Court Bar Association passed several resolutions on it; many Judges of the Supreme Court emphasized on it in their judgments; and the academia wrote much on it. See Yasser Kureshi, Seeking Supremacy: The Pursuit of Judicial Power in Pakistan (2022); Asher Asif Qazi, A Government of Judges: A Story of The Pakistani Supreme Court's Strategic Expansion (2018); Dr. Osama Siddique, The Judicialization of Politics in Pakistan: The Supreme Court after the Lawyers' Movement (2015); Maryam S. Khan, Genesis and Evolution of Public Interest Litigation in the Supreme Court of Pakistan: Toward A Dynamic Theory of Judicialization (2015).

68. Qausain Faisal v. Federation of Pakistan PLD 2022 SC 675; Ahsan Abid v. Khusru Bakhtiar PLD 2022 SC 712.

69. Paramatha Nath v. Kamir Mondal PLD 1965 SC 434; Aamer Raza v. Minhaj Ahmad 2012 SCMR 6; DBA, Rawalpindi v. Federation of Pakistan PLD 2015 SC 401 per Khosa, J.; Rangaswamy v.

Commissioner of Wealth Tax 1998 PTD 421.

70. A five-member Bench of this Court held in SMC No.4/2021 (PLD 2022 SC 306) that the Chief Justice is the sole authority by and through whom the jurisdiction of this Court under Article 184(3) of the Constitution can be invoked suo Motu.

71. The Rules, Order XI.

72. PLD 2022 SC 306.

73. Abdul Baqi v. Govt. of Pakistan PLD 1968 SC 313; Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Hanif Abbasi v. Imran Khan PLD 2018 SC 189.

74. See my note dated 22.06.2023 in Jawwad S.Khawaja v. Fderation of Pakistan (2023 SCP 190) and my notes dated 18.08.2023 and 29.08.2023 in Imran Khan v. Federation of Pakistan (2023 SCP 228 and 267).

^[75]Income-Tax Officer v. Cement Agencies Ltd. PLD 1969 SC 322; Faizur Rehman v. N.W.F.P.

Public Service Commission 1996 SCMR 589; Govt. of N.W.F.P. v. Muhammad Irshad PLD 1995 SC 281 (5MB); Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 (5MB); Liaqat Hussain v.

Federation of Pakistan PLD 1999 SC 504 (9MB); Said Muhammad v. State 2000 SCMR 1076; Pakistan Steel Mills v. Azam Katper 2002 SCMR 1023; Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 (9MB); Muhammad Idrees v. Agricultural Development Bank PLD 2007 SC 681 (9MB); Muhammad Ishaq v. Muhammad Shafiq 2007 SCMR 1773; Muhammad Safdar v.

Punjab Land Commission 2012 SCMR 1725 (4MB); Moizuddin v. Mansoor Khalil 2017 SCMR 1787.

76. Roscoe Pound, The Rule-Making Power of the Courts, 12 ABA J., 599-603, 603 (1926) <http://www.jstor.org/stable/25709618>.

77. The Constitution of the Islamic Republic of Pakistan, 1973 (Constitution).

78. As per Section 2 of the Act, the Committee comprises of the CJP and two next most senior Judges of the Supreme Court of Pakistan in the order of seniority (Committee). The decision of the Committee shall be by majority under Section 2(3) of the Act.

79. Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582).

80. FRANCIS J. LUDES & HAROLD J. GILBERT, 83 CORPUS JURIS SECUNDUM (The American Law Book Company, 1953).

81. Lahore Development Authority v. Imrana Tiwana (2015 SCMR 1739) (Imrana Tiwana).

82. Id.

83. Article 98 of the 1962 Constitution confers jurisdiction to the High Courts.

84. Muhammad Khan v. The Border Allotment Committee (PLD 1965 SC 623) (Muhammad Khan).

85. Mustafa Impex v. Government of Pakistan (PLD 2016 SC 808) (Mustafa Impex).

86. K.R.C.S. Balakrishna Chetty & Sons & Co. v. The State of Madras [(1961) 2 S.C.R. 736] (Balakrishna Chetty).

87. Article 188 of the Constitution relates to the review jurisdiction of the Supreme Court of Pakistan whereby this Court can review its judgments or orders.

88. Ghulam Mohiuddin v. Federation of Pakistan (PLD 2023 SC 825) (Ghulam Mohiuddin).

89. Id.

90. Articles 204, 243 and 245 of the Constitution.

91. Shaukat Aziz Siddiqui v. Federation of Pakistan (PLD 2018 SC 538), Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan (PLD 2010 SC 61) (Iftikhar Muhammad Chaudhry) and Muhammad Raz Khan v. Govt. of N.W.F.P. (PLD 1997 SC 397).

92. Iftikhar Muhammad Chaudhry, supra note 16.

^[93]67. Rules of procedure, etc. (1) Subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the House shall not be invalid on the ground that some persons who were not entitled to do so sat, voted or otherwise took part in the proceedings.

72. Procedure at joint sittings. (1) The President, after consultation with the Speaker of the National Assembly and the Chairman, may make rules as to the procedure with respect to the joint sittings of, and communications between, the two Houses.

88. Finance Committee. (3) The Finance Committee may make rules for regulating its procedure.

99. Conduct of business of Federal Government. (3) The Federal Government shall also make rules for the allocation and transaction of its business.

94. Government of Sindh v. Nadeem Rizvi (2020 SCMR 1) (Nadeem Rizvi).

95. Province of Sindh v. M.Q.M. (PLD 2014 SC 531) (MQM).

96. Id.

97. Pound, supra note 1, at 621.

98. Winberry v. Salisbury [5 N.J. 240 (1950)] (Winberry).

99. Article VI, Section II, Paragraph No. ^[3] of the Constitution of New Jersey.

^[100]Winberry, supra note 23.

^[101]Id.

^[102]Kolkman v. People [89 Colo. 8 (1931)] (Kolkman).

^[103]People v. Brown [238 Mich. 298 (1927)] (Brown).

^[104]Tomlinson v. Tomlinson [338 Mich. 274 (1953)] (Tomlinson).

^[105]Epstein v. State [190 Ind. 693 (1920)] (Epstein).

^[106]Id.

^[107]JUSTICE (R) FAZAL KARIM, 1 JUDICIAL REVIEW OF PUBLIC ACTIONS (2nd ed. 2018), 28.

^[108]Gadoon Textile Mills v. WAPDA (1997 SCMR 641).

^[109]Article 148 of the 1956 Constitution.

^[110]Article 155 of the 1956 Constitution.

^[111]158. Appellate jurisdiction of the Supreme Court in civil matters. (1) An Appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in civil proceedings ...

(2) Notwithstanding anything in this Article, no appeal shall, unless an Act of Parliament otherwise provides, lie to the Supreme Court from the judgment, decree or final order of a Judge of a High Court sitting alone.

^[112]Published in the Gazette of Pakistan Extraordinary dated 22.01.1957.

^[113]Order XI. Constitution of Benches. Save as otherwise provided by law or by these Rules every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice: [Provided that

(i) all petitions for leave to appeal,

(ii) appeals from appellate and revisional judgments, and orders made by a Single Judge in the High Court, [and]

(iii) appeals from judgments/orders of the Service Tribunals or Administrative Courts, and appeals involving grant of bail/cancellation of bail, may be heard and disposed of by a bench of two Judges, but the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench.] Provided further that if the Judges hearing a petition or an appeal are equally divided in opinion, the petition or appeal, as the case may be, shall, in the discretion of the Chief Justice, be placed for hearing and disposal either before another Judge or before a larger Bench to be nominated by the Chief Justice.

^[114]Debates available at the website of National Assembly of Pakistan as: <na.gov.pk/uploads/documents/644baf484f292 493.pdf>.

^[115]Justice Khurshid Anwar Bhinder v. Federation of Pakistan (PLD 2010 SC 483) (Bhinder).

^[116]Ghulam Mohiuddin, supra note 13.

^[117]Chairman N.W.F.P. v. Khurshid Anwar Khan (1992 SCMR 1202) (Khurshid Anwar Khan).

^[118]Id.

^[119]Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) (Baz Muhammad Kakar).

^[120]Muhammad Aslam Awan v. Federation of Pakistan (2014 SCMR 1289).

^[121]Suo Motu No. 4 of 2021: In the matter of (PLD 2022 SC 306).

^[122]Justice Qazi Faez Isa v. President of Pakistan (PLD 2022 SC 119).

^[123]Id.

^[124]Basic Principles on the Independence of the Judiciary' adopted on 06.09.1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan.

^[125]Sharaf Faridi v. Fed. of Islamic Repub. of Pakistan (PLD 1989 Karachi 404) (Sharaf Faridi). It may be noted, view of Saleem Akhtar, J. was relied by this Court in Asad Ali v. Federation of Pakistan (PLD 1998 SC 161) (Asad Ali).

^[126]Asad Ali, supra note 50.

^[127]Iftikhar Muhammad Chaudhry, supra note 16.

^[128]Iftikhar Muhammad Chaudhry, supra note 16 relies upon Mahmood Khan Achakzai v.

Federation of Pakistan (PLD 1997 SC 426).

^[129]Iftikhar Muhammad Chaudhry, supra note 16 relies upon Zafar Ali Shah v. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869).

^[130]Montesquieu Charles-Louis de Secondat, The Spirit of Laws (1748), translated by Thomas Nugent (Batoche Books ed. 2001), 173-4.

^[131]Chief Justice Taft quotes James Madison in Myers v. US [(1926) 272 US 52].

^[132]Morrison v. Olson [(1988) 487 US 654] (Morrison).

^[133]Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) (Kesavananda Bharati) and Indira Nehru Gandhi v. Raj Narain (AIR 1975 Supreme Court 2299) (Indira Nehru Gandhi).

^[134]Fazal Karim, supra note 32, at 98-99.

^[135]JUSTICE (R) FAZAL KARIM, 1 ACCESS TO JUSTICE IN PAKISTAN (1st ed. 2003), 11.

^[136]Id.

^[137]Jurists Foundation v. Federal Government (PLD 2020 SC 1) (Jurists Foundation).

^[138]Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341).

^[139]Id.

^[140]Imran Ahmad Khan Niazi v. Federation of Pakistan (PLD 2024 SC 102).

^[141]State v. Zia-ur-Rehman (PLD 1973 SC 49) (Zia-ur-Rehman).

^[142]Yousaf Raza Gillani v. Assistant Registrar, Supreme Court (PLD 2012 SC 466) (Yousaf Raza Gillani).

^[143]Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (Al-Jehad).

^[144]Azizullah Memon, supra note 63, was also relied in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445).

^[145]Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) (Mobashir Hassan).

^[146]State of Maharashtra v. Narayan Shamrao Puranik (AIR 1983 SC 46), Campaign of Judicial Accountability and Reforms v. Union of India [(2018) 1 SCC 196] and State of Rajasthan v.

Prakash Chand (AIR 1983 SC 1344).

^[147]Order XI, supra note 38.

^[148]Baz Muhammad Kakar, supra note 44.

^[149]Id.

^[150]Shanti Bhushan v. Supreme Court of India (AIR 2018 SC 3287) (Shanti Bhushan).

^[151]Asad Ali, supra note 50.

^[152]Asok Pande v. Supreme Court of India [(2018) 5 SCC 341] (Asok Pande).

^[153]Order XI, supra note 38.

^[154]Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66).

^[155]Baz Muhammad Kakar, supra note 44.

^[156]The Province of Punjab v. National Industrial Cooperative Credit Corporation (2000 SCMR 567) (NICCC).

^[157]Id.

^[158]Iftikhar Muhammad Chaudhry, supra note 16.

^[159]Id.

^[160]California v. Arizona, The Federalist No.81 at 548 (Alexander Hamilton) [440 US 59].

^[161]Province of Sindh v. M.Q.M through Deputy Convener [PLD 2014 SC 531].

^[162]Winberry v. Salisbury [5 N.J. 240].

^[163]Ghulam Mohiuddin v. Federation of Pakistan [PLD 2023 SC 825].

^[164]Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923].

^[165]Shaukat Aziz Siddiqui v. Federation of Pakistan [PLD 2018 SC 538].

^[166]Justice Khurshid Anwar Bhinder v. Federation of Pakistan [PLD 2010 SC 483].

^[167]Zain Noorani v. Secretary National Assembly of Pakistan [PLD 1957 SC 46].

^[168]Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923] & Hasnat Ahmed Khan v. Registrar Supreme Court of Pakistan [PLD 2010 SC 806].

^[169]Article 89(2) of Constitution the Islamic Republic of Pakistan, 1973.

^[170]Pakistan Medical and Dental Council v. Muhammad Fahad Malik [2018 SCMR 1956].

^[171]Sabir Shah v. Shad Muhammad Khan [PLD 1995 SC 66].

^[172]Dr. Mobashir Hassan v. Federation of Pakistan [PLD 2010 SC 265].

^[173]Province of Sindh v. M.Q.M through Deputy Convener [PLD 2014 SC 531], & Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923].

^[174]Article 142(a) of Constitution of the Islamic Republic of Pakistan, 1973.

^[175]Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan [PLD 1998 SC 1263].

^[176]The Province of Punjab v. National Industrial Cooperative Credit Corporation [2000 SCMR 567].

^[177]Bourke v. State Bank of NSW [(1990) 170 CLR 276].

^[178]Pakistan v. Province of Punjab [PLD 1975 SC 37].

^[179]P. Surendran v. State [2019 SCC Online SC 507].

^[180]All Pakistan Newspaper Society v. Federation of Pakistan [PLD 2004 SC 600], Farman Ali v.

Muhammad Ishaq [PLD 2013 SC 392] & Qausain Faisal v. Federation of Pakistan [PLD 2022 SC 675].

^[181]Pakistan International Airlines Corporation v. Pak Saf Dry Cleaners [PLD 1981 SC 553] & Manzoor Ali v. United Bank Limited [2005 SCMR 1785].

^[182]The Federalist papers No.78 (Hamilton).

^[183]California v. Arizona, The Federalist No.81 at 548 (Alexander Hamilton) [440 US 59].

^[184]Province of Sindh v. M.Q.M through Deputy Convener [PLD 2014 SC 531].

^[185]Winberry v. Salisbury [5 N.J. 240].

^[186]Ghulam Mohiuddin v. Federation of Pakistan [PLD 2023 SC 825].

^[187]Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923].

^[188]Shaukat Aziz Siddiqui v. Federation of Pakistan [PLD 2018 SC 538].

^[189]Justice Khurshid Anwar Bhinder v. Federation of Pakistan [PLD 2010 SC 483].

^[191]Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923] & Hasnat Ahmed Khan v.

Registrar Supreme Court of Pakistan [PLD 2010 SC 806].

^[192]Article 89(2) of Constitution the Islamic Republic of Pakistan, 1973.

^[193]Pakistan Medical and Dental Council v. Muhammad Fahad Malik [2018 SCMR 1956].

^[194]Sabir Shah v. Shad Muhammad Khan [PLD 1995 SC 66].

^[195]Dr. Mobashir Hassan v. Federation of Pakistan [PLD 2010 SC 265].

^[196]Province of Sindh v. M.Q.M through Deputy Convener [PLD 2014 SC 531], & Baz Muhammad Kakar v. Federation of Pakistan [PLD 2012 SC 923].

^[197]Article 142(a) of Constitution of the Islamic Republic of Pakistan, 1973.

^[198]Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan [PLD 1998 SC 1263].

^[199]The Province of Punjab v. National Industrial Cooperative Credit Corporation [2000 SCMR 567].

9 Footnotes

[200] Bourke v. State Bank of NSW [(1990) 170 CLR 276].

[201] Pakistan v. Province of Punjab [PLD 1975 SC 37].

[202] P. Surendran v. State [2019 SCC Online SC 507].

[203] All Pakistan Newspaper Society v. Federation of Pakistan [PLD 2004 SC 600], Farman Ali v.

Muhammad Ishaq [PLD 2013 SC 392] & Qausain Faisal v. Federation of Pakistan [PLD 2022 SC

675].

[204] Pakistan International Airlines Corporation v. Pak Saf Dry Cleaners [PLD 1981 SC 553] &

Manzoor Ali v. United Bank Limited [2005 SCMR 1785].

[205] The Federalist papers No.78 (Hamilton).

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