Concerns that high-profile cases that were thought to be settled may face challenges to their validity are widespread in ISLAMABAD as a result of the suspension of the effects of the Supreme Court (Practise and Procedure) Act, 2023. These cases were heard under Article 184(3) of the Constitution.

Both the incoming top judge of Pakistan, judge Qazi Faez Isa, and his predecessor, Justice Syed Mansoor Ali Shah, have voiced worries that any actions under Article 184-3 would be null and void if the law’s validity is affirmed.Since this law was passed, Justice Isa has been removed from the bench.
Since April, he has repeatedly questioned the legitimacy of the existing benches.
If the Supreme Court maintains the Act, the legality of high-profile cases determined after April 13 could be challenged, according to legal experts.One of the solicitors, however, argued that the court should shield certain instances as “past and closed” and include an appeals mechanism for them.
He added that the court will have to pay for appeals of cases determined during this time frame under Article 1843 of the Constitution.When Justice Shah heard PTI leader Imran Khan’s petition challenging the NAB law amendments, he pointed out that the bench for hearing pleas under Article 184-3 was to be constituted by a committee consisting of the chief justice of Pakistan and two next most senior judges of the SC.
In addition, he noted separately and appended it to the bench’s written order that “any case involving the interpretation of a constitutional provision was to be heard by a bench comprising at least five judges,” per Section 4 of the Act.
As Justice Shah wrote, “the Act is a procedural law, so it appears to apply retroactively to all cases pending under Article 184-3 of the Constitution, including this one.”
In addition, “although the operation of the Act has been suspended by an eight-member bench of this court, the Act would take effect from the date of its enforcement, not from the date of the decision of the court,” it said.
If the Act is upheld as legal, then “any decision given in the present case [NAB amendments] by this bench, which is not constituted as per the procedure prescribed and of the strength of judges required under the Act would arguably be coram non-judice and thus a nullity in the eye of the law,” the NAB said in a statement.
Justice Shah remarked that the petitioner’s lawyer, citing several cases, argued that “even a procedural statute was not to be given a retrospective effect” if it would cause inconvenience or injustice, in response to the observation that the Act, being a procedural law, also applied to pending cases under Article 184-3, including the present one.
The eight-person bench hearing the case over the constitutionality of the Act, not this bench, “must decide whether or not to give the Act retrospective effect to avoid any inconvenience or injustice if it is ultimately held constitutionally valid,” he continued.
As the court stated previously, “Similarly, the contention of the learned counsel for the Federation that in view of the well-settled opinion of this court as expressed in several cases the operation of the Act could not have been suspended is not for this bench to deal with.”
Justice Shah remarked that this bench could not hear the argument since it was not an appellate court with jurisdiction over the decision to temporarily halt the Act’s implementation.
I also do not subscribe to the discussion made in this case by my learned brothers in their order of today, explaining the reasons for suspending the operation of the Act in another case, what the learned Attorney-General for Pakistan argued in that case, and whether or not the federal government requested recalling the stay order in that case.
When hearing the current case before this bench, it is not possible, in my opinion, to explain or justify the orders made or the proceedings done by another bench in some other matter.
The petitioner’s attorney has not provided a suitable response to Justice Shah’s observation that any decision made by this bench in the current case might be null and void if the court finally upholds the constitutional legitimacy of the Act.
While my learned brothers do acknowledge that “[it] would clearly be presumptuous of us to assume the outcome on the above issue,” I suggest with the utmost respect that their ruling does not address this worry either.
It is not a presumption or assumption to say that a judge could rule that the Act is constitutional whereas another judge could rule that it is not. Neither ruling may be considered certain until it is announced by the relevant bench.
The real concern is the impact of the possible final outcome of the constitutional validity of the Act on the present proceedings and any decision given therein,” he emphasised, adding that compliance or non-compliance with the interim order passed by the eight-member bench is not at issue.
The judge warned that if the other bench upheld the validity of Sections 3 and 4 of the Act, “the instant proceedings and the decision given therein might become coram non-judice and a nullity in the eye of the law.”
Justice Shah suggested that the sword of Damocles hanging over these proceedings may be readily lifted by either waiting for the eight-member bench’s verdict on the validity of the Act or rendering the Act ineffectual by bringing it before a full court bench.
After more than four months had passed after the eight-judge bench issued an interim decision suspending the Act on April 13, 2023, the judge remarked that “no next date of hearing fixed in the case.”
It’s inexplicable that this case, which concerns the court’s fundamental operations, has been pending for so long. Almost 50 hearings have already been held in this matter, therefore it’s doubly important that the Act’s constitutionality be decided first at the earliest so the court may operate in line with the law rather than under the uncertainty of a stay order, he continued.
Justice Shah wrote, “I maintain my earlier view recorded in my note of 22 June 2023 in Const. Petitions No.24-26 of 2023 (Trial of Civilians in Military Courts case) and answer the question in the terms that in order to avoid such an anomaly, the hearing of the present case should either be adjourned till the court first decides the constitutionality of the Act or in the alternate a full court bench should be constituted to hear the instant case.”
Chief Justice Umar Ata Bandial and Justice Ijazul Ahsan, writing for the court’s majority, said they weren’t interested in weighing in on the vires of a process Act because that was something an eight-judge panel should resolve.
“It is obvious that we cannot predict the conclusion of the aforementioned matter. The majority ruling in the NAB law modifications case went as follows: “However, it should not be ignored that the Procedure Act has been suspended by the orders of 03.04.2023 and 02.05.2023 passed by the eight-member bench.”
After the hearing, the federal government did not ask for a reversal of these orders or any changes to be made to them. As a result, we have come to the conclusion that, so long as these temporary instructions remain in effect, they must be followed. There have been over 50 hearings on the petition to the constitution named. The final phase of its procedures has begun, and its completion is imminent. Therefore, the current bench should continue to hear and rule on the aforementioned petition. A change in the makeup of the bench “is neither required as a matter of law or of propriety nor is it advisable at this late stage of the case,” it continued.
Since the court’s time and taxpayer money had already been spent on this petition, the two justices agreed that a swift resolution would be in the public’s best interest.