Plea against IHC order: Two SC judges disagree on issuing notices

ISLAMABAD: While hearing a case on Friday, Justice Jamal Khan Mandokhail and Justice Hassan Azhar Rizvi disagreed with each other in open court in a matter that legal experts say also has the potential to affect the ‘numbers game’ in the apex court.

On Friday, April 14, a two-member bench of the SC comprising Justice Jamal Khan Mandokhail and Justice Syed Hasan Azhar Rizvi, heard a civil petition (491/2021) against an Islamabad High Court order.

During the course of the proceedings, the two honourable judges had a difference of opinion on issuing notices to the attorney general of Pakistan, advocate general Islamabad and prosecutor general of Punjab on the scope of Section 3(2) of the Law Reforms Ordinance, 1972, that provides for the right of appeal against the order of a high court exercising jurisdiction under Article 199 of the constitution.

Section 3(2) of the Law Reforms Ordinance, 1972 is the same as Section 5(1) of the Supreme Court (Practice & Procedure) Bill, 2023. However, it seems Justice Syed Hasan Azhar Rizvi does not agree with that.

An appeal is the continuation of the original proceedings and the appellate court is vested with the power to re-hear and decide the entire dispute between the parties. Section 3(2) of Law Reforms Ordinance, 1972 maintains that “An appeal shall also lie to a Bench of two or more judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution”, and this law has been on the statute books for the past 50 years with no constitutional challenge.

The jurisdiction of the high courts, under Article 199, is the same as the jurisdiction of the Supreme Court of Pakistan under Article 184(3) in addition to the fact that the Supreme Court must find a public interest aspect to the issue.

So, on Friday, Justice Jamal Khan Mandokhail exercised caution in light of the continuing development of jurisprudence on a similar issue currently before the eight-member bench that is yet to issue its view on Section 5(1) of the Supreme Court (Practice & Procedure) Bill, 2023, which maintains, “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.” However, Justice Syed Hasan Azhar Rizvi has chosen to dismiss the appeal under Section 3(2) of the Law Reforms Ordinance, 1972 through a short order.

It may be noted that as a part of the eight-member bench this week he had issued the notice to adjudicate on an identical issue under Section 5(1) of the Supreme Court (Practice & Procedure) Bill, 2023.

The case is now due to be placed before Chief Justice Umar Ata Bandial, to issue directions under Order XI of the Supreme Court Rules, 1980 which maintains that (while hearing a petition or an appeal) if Supreme Court judges in a bench are equally divided in opinion, then such case shall be placed for hearing and disposal — either before another Supreme Court Judge, or before a larger bench — as nominated by the chief justice in his discretion. There are two separate courses of action (and logic) that can now take place: one is to follow the example of the Law Reforms Ordinance, 1972, and maintain the right to appeals. The second is to follow the contradictory jurisprudence of the short orders of Justice Syed Hasan Azhar Rizvi. There is another course of action: to club together the issues under both statutes before the same eight-member bench -- and declare Section 3(2) of the Law Reforms Ordinance, 1972 also unconstitutional.