ISLAMABAD: Justice Syed Mansoor Ali Shah has observed that any decision on the NAB amendment case by the present three-judge bench — not constituted under the procedure prescribed in the Supreme Court (Practice and Procedure) Act 2023 — will arguably be coram non judice and a nullity in the eye of the law.

Therefore, the decision of constitutional validity of the act is an equally possible decision with that of its constitutional invalidity; it is not a presumption or speculation, observed Justice Shah in a note he authored.

Issued late Friday evening, the note is intended to justify why Justice Shah suggested during Aug 18 hearing that the present three-judge bench should adjourn the NAB case till the constitutionality of the Supreme Court (Practice and Procedure) Act, 2023 was decided first, or alternatively, a full court bench should hear the case pending a decision on the constitutionality of the act.

In his note, Justice Shah explained that on Aug 8 when he raised the question, Makhdoom Ali Khan, the counsel for the federation, argued in favour of adjourning the hearing of the present case till a decision on the constitutionality of the act. But no satisfactory answer was put forth by Khawaja Haris Ahmed, the counsel for the petitioner, to the proposition.

Notes any decision by the three-judge bench, not constituted as per SC (Practice and Procedure) Act, may be considered legally void

Justice Shah observed that the order of his learned brothers does not address this concern either, even though they note in their order that it would clearly be presumptuous of them to assume the outcome on the above issue.

The decision of constitutional validity of the Act is an equally possible decision with that of its constitutional invalidity; it is not a presumption or speculation, Justice Shah explained. No one can be sure of either of the decisions before pronouncement of the same by the eight-judge bench seized with the challenges to the act.

Further, it is not the matter of compliance or non-compliance of the interim order of suspending the operation of the act as passed by the eight-member bench, which is only of temporary nature, the note said.

The real concern is the effect of the possible final outcome of the constitutional validity of the act on the present proceedings and any decision given therein. There is a possibility that the instant proceedings and the decision given therein may become coram non judice and a nullity in the eye of the law, if the constitutionality of Sections 3 and 4 of the Act is upheld by the larger bench.

So this Damocles’ sword hanging over these proceedings can easily be removed if either we await the decision of the eight-member bench on the constitutionality of the Act or make it ineffective by placing the matter before a full court bench, the note suggested.

The interim order of the eight-member bench suspending the Act was passed on April 13 2023, more than four months ago, and there is no next date of hearing fixed in the case. This unnecessary delay in adjudicating a matter that directly deals with the core functioning of this court is not understandable, the note observed.

Considering that almost 50 hearings (then) have been held it the instant case, it, therefore, doubly requires that the constitutionality of the Act be decided first at the earliest so that the court can function in accordance with law rather than under the uncertainty of a stay order.

“I, therefore, maintain my earlier view recorded in my note of June 22, 2023 in the 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,” the note said.

Published in Dawn, September 2nd, 2023