Conviction under Article 184(3): Nawaz, others set to get appeal right as historic bill passed

“This law has neither reduced nor increased SC's power; it will further improve the court’s performance," the law minister says

March 30, 2023

ISLAMABAD: The National Assembly (NA) Wednesday passed the historic Supreme Court (Practice and Procedure) Bill, 2023 which seeks to limit the discretionary powers of the chief justice of Pakistan (CJP) to take suo moto notice under Article 184(3) of the Constitution.

An amendment, moved by MNA Mohsin Dawar, was also incorporated by the House, which provided the right to appeal to people who were aggrieved by the orders passed by the SC under Article 184(3) before the enactment of this law.

Application of the law, passed by the National Assembly and supposed to be laid before the Senate on Thursday (today), would pave the way for contesting the disqualification of former prime minister and Quaid of the PMLN, Nawaz Sharif, who was disqualified under Article 62(F) of the Constitution way back in 2017, it is believed. It is likely that with the passage from Senate, the bill would be sent to the president for his assent.

Under the new law, Nawaz Sharif may file an appeal against the Supreme Court verdict “within 30 days of the commencement of this Act”, as required by the amendment to the draft legislation. Also, former prime minister belonging to PPP Yusuf Raza Gilani, estranged PTI leader Jehangir Khan Tareen and affected persons of the Nasla Tower, Karachi, would also have the right to file appeals in the cases decided by the SC under Article 184(3).

Various other important cases may also be opened and appeals filed once the new legislation is made. The SC had disqualified the then premier Nawaz Sharif from holding public office in the Panama Papers case. The decision was announced under Article 184(3) on applications filed by PTI chief Imran Khan. During the suo motu reference hearing, the SC directed NAB to file four references. In two references, Nawaz Sharif, and in one reference, Maryam Nawaz were convicted. However, the Lahore High Court acquitted Maryam Nawaz in the reference.

On an application of Hanif Abbasi, the SC disqualified Jehangir Khan Tareen for life and declared Imran Khan Sadiq and Ameen. Under the new law, Hanif Abbasi would be able to file an appeal against the Sadiq and Ameen verdict. A reference against Qazi Faez Isa had been filed by the PTI government. Justice Faez Isa had challenged the reference under Article 184(3), and the apex court had thrown out the presidential reference terming it “invalid”. The SC had declared General Pervez Musharraf reference against former CJ Iftikhar Mohammad Chaudhry illegal under Article 184(3). Also, General Musharraf’s act of proclaiming an emergency on November 3, 2007, was declared an unconstitutional act by the SC under Article 184(3). The court had ordered filing a high treason case against Gen Musharraf on the application of Rawalpindi Bar under Article 184(3).

The SC had also declared the first NRO [National Reconciliation Ordinance] illegal under the same article and later convicted Yusuf Raza Gilani in contempt of court for not implementing the court order in that case. Imran Khan and others had challenged the Speaker’s ruling under Article 184(3), and Yusuf Raza Gilani was barred from holding public office for five years.

Deedar Hussain Shah’s appointment as the NAB chairman was declared illegal by the SC under the same article. The SC decision that a person disqualified for life could not be appointed as political party chief was also given under the same suo motu powers. There are almost 400 such cases which were decided under 184(3).

Meanwhile, the House had allowed the amendment, moved by MNA Mohsin Dawar, according to which the bill on commencement of the Act would have the retrospective effect when it comes to filing an appeal against an order, passed by the chief justice under Article 184(3) of the Constitution. “The right of appeal will also be available to an aggrieved person against whom an order under Article 184(3) was passed prior to commencement of this law provided that an appeal under this section is filed within 30 days of commencement of this Act,” said the amendment.

The House also adopted another amendment to the same section replacing the words final order with an order (interim order) to provide relief to the aggrieved person.

Prime Minister Shehbaz Sharif, who attended proceedings for over two hours, was also present in the house when the bill was passed.

The bill, moved by Law Minister Azam Nazeer Tarar, was passed by the lower house of the parliament with a majority vote. Earlier, the National Assembly Standing Committee on Law and Justice gave its consent. The bill was moved by the government after two SC judges — Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhel — raised questions over the powers of the CJP, saying the apex court “cannot be dependent on the solitary decision of one man, the chief justice”. A debate was held in the NA after the sub-committee passed it by making some amendments, which include:

*. Right to appeal against the suo motu verdicts taken up to 30 days before the passing of the Lawyers’ Protection Act.

*. Any case that involves interpreting the Constitution will not have a bench with fewer than five judges.

The bill includes shifting the powers of taking suo motu notice from the chief justice to a three-member committee comprising senior judges. Moreover, the bill also includes a clause regarding the right of challenging the decision which could be filed within 30 days and will then be fixed for a hearing in two weeks.

According to the bill, every clause, appeal or matter before the Supreme Court should be heard and disposed of by a bench constituted by the committee comprising the CJP and two senior judges, in order of seniority. The bill also mentioned that the decision of the committee would be made by the majority. However, the two SC judges in their detailed notes had juxtaposed majority rule with “dictatorship”. They said: “Taking all decisions only by majority rule is no less dictatorship, and the absolutist approach to controversial issues is the hallmark of extremists.”

It was also mentioned in the bill that any matter invoking the exercise of original jurisdiction under clause (3) of Article 184 of the Constitution shall be 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 which may also include the members of the committee, for adjudication of the matter.

Meanwhile, in matters where interpretation of the constitutional provision is involved, the committee would constitute a bench comprising not less than five judges of the apex court. The bill also grants the party the right to appoint counsel of its choice for filing a review application under Article 188 of the Constitution. It should be noted that the counsel, for this purpose, shall mean an advocate of the Supreme Court. “An application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing,” the bill read.

Law Minister Azam Nazeer Tarar, while responding to some points, raised by newly elected PTI MNA Mohsin Leghari, said the Supreme Court would regulate as per rules under the law being passed by the House.

Former president of the Pakistan Bar Council and eminent lawyer, Senator Kamran Murtaza, said the right to appeal against any verdict was a universal right and that could not be denied to any individual. In a brief chat with The News, he cited clause two under the title of the appeal of the said act and said that the clause was sufficient to establish that Nawaz Sharif and all others, who were hit by 184(3), could file an appeal within 30 days of the enactment of the law. He reminded that the debate with regard to the legislation and especially its impact on the case against Nawaz Sharif was bound to come under heated discussion due to certain reasons. He said that constitutional provisions are being referred to, and the question of ‘past and closed transactions’ was supposed to come up for debate, but the wording of the law is quite obvious. He said clause (2) of the draft law reads: “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 subsection shall be filed within thirty days of the commencement of this Act.” He said in case the right of appeal for Nawaz Sharif and others is restored, it would have no adverse impact on the justice system since the appeal would be heard by a brother judge of the same stature sitting in the seat of the apex court.

Senator Kamran Murtaza said that the retrospective effect of the act is not a strange phenomenon and that criticism from the PTI of the legislation was also expected. He reminded that it was popular legislation since the legal fraternity had been demanding such a law for a long time. He was hopeful that it would become part of the book without much difficulty.