ISLAMABAD -UNS: In a first, the Supreme Court has begun live streaming the hearing of a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 — which requires formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.
The decision came on Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa’s first day as the new top court judge. Prior to the start of the hearing, CJP Isa had called a full court meeting.
Shortly after taking oath on Sunday, Justice Isa — whose 13-month tenure ends in Oct 2024 — formed a full court to take up a set of pleas challenging the legislation, which was suspended by the SC under then-CJP Umar Ata Bandial earlier in April, that requires formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.
Headed by CJP Isa, the bench consists of Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law.
In a detailed reply submitted by Attorney General for Pakistan (AGP) Mansoor Usman Awan, the government contended that the petitions challenging an act of Parliament were inadmissible.
At the outset of the hearing, the lawyers arguing the set of the pleas came to the rostrum.
Addressing the lawyers, Justice Isa said, “Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”
He said that since one member of the bench had retired there was a matter of reconstituting the bench. “A question had also arisen whether I should be a part of the bench […] then the related question that all those who will become CJP should become part of the bench […] so I think the best way to resolve it was to constitute a full court if you agree […].”
Advocate Khawaja Tariq Rahim kicked off the arguments in the case, with Justice Ayesha asking what would happen to Section 5 in the event the law was upheld.
“There is a right of appeal that is provided under this law. How do you visualise that right being exercised,” she asked. Justice Isa then asked Rahim to read the law out loud. However, the lawyer kept getting sidetracked, with the judges repeatedly telling him to reading the Act.
“The country expects 57,000 cases to be decided. We would love to hear you. But let’s focus on your petition […] proceed with your arguments,” CJP Isa remarked. Rahim then proceeded to read out the Act.
However, he again stopped reading out the law and said, “Framing of these rules, under Article 191, is the prerogative of the SC. When they framed the 1980 rules, the entire court sat together and together they framed the rules.”
Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.
“This intrusion by the Parliament into the affairs of the SC prompted me to come forward and file this petition. Because I feel that every institution must remain in its domain,” Rahim said.
Justice Naqvi, however, wondered whether the lawyer was suggesting that he did not have any objection to the “unaccountable powers in one office”.
“Is that your question. Are you supporting what has happened in the past? What is your legal proposition?” he asked. CJP Isa again asked Rahim to read the Act out loud.
“You read the Act. Either you say this entire Act is ultra vires the Constitution, that’s one contention […] You don’t need to respond to every query immediately, it will make your life very difficult […] when you are done with your arguments, you can absorb the questions and respond,” Justice Isa said.
In the middle of reading out the Act, Rahim said that Parliament should not have a say in functions that lay with the top court. He said that tomorrow Parliament could order that a particular bench hears a case.
“Let’s not go into what they may or may not do […] what Parliament decides to do in the future, you can bring another petition and we can look at it then. restrict yourself to your case,” CJP Isa interjected.
Justice Akhtar then wondered if Parliament could whittle down judicial power under Article 184(3) by providing that a committee, comprising three senior judges, be formed to decide constitution of benches.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
In this connection, Justice Minallah further pointed out that since this power earlier resided solely with the chief justice, an argument was raised that the outcomes of cases could be influenced by constituting benches and this eroded the independence of the judiciary.
“If this argument is accepted, then the earlier traditional model would be acceptable to you that one person can actually control the outcome of cases by the constitution of benches and this probably was the mischief that the Parliament wanted to address?” he asked.
Here, Justice Ahsan referred to a previous SC judgement, which he said that had given a verdict on the procedure to be followed by the chief justice to invoke the SC’s jurisdiction under Article 183.
“It says where a bench […] comes to a conclusion that there is a matter of public importance affecting fundamental rights, they may recommend to the honourable chief justice that a bench be constituted.
“And the chief justice, after perusing the reasons that the bench assigns for recommending may or may not [proceed with its suggestion]. But at least he would record why he thinks he disagrees with the recommendations,” he said.
Justice Akhtar then said, “It seems to me that the power to constitute the bench is the subject matter of Section 2. Constituting a bench does not block the exercise judicial power. It simply determines which is the bench that is to exercise the judicial power.”
He then remarked that Section 3 of the Act seemed to go beyond this. “It actually confers on the three-member committee, exercising administrative powers, to actually block the exercise of judicial powers.
“It is not a question of constitution of benches […] The question here, it seems to me, is the very blocking of the judicial power itself and [can] Parliament do that,” Justice Akhtar said.
At one point, Justice Hilali wondered if the office of the CJP would become “redundant” after the passage of the Act. Justice Mandokhail also asked whether the powers of the SC had been curtailed or the powers of the CJP.
Law limiting CJP’s powers
The previous government of PDM had enacted the Supreme Court (Practice and Procedure) Bill 2023, aimed at limiting the powers of the top judge. The legislation deprives the office of the CJP of powers to take suo motu notice in an individual capacity.
The law states that a three-member bench, comprising the CJP and the two senior-most judges of the apex court, will decide whether or not to take up a matter suo motu. Previously, this was solely the prerogative of the CJP. Additionally, it adds to the review jurisdiction of Supreme Court, giving the right to file an appeal within 30 days of the judgement in suo motu cases.
On April 13, an eight-judge SC bench headed by former CJP Bandial, had suspended the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.
When the law was suspended, Justice Bandial had observed that the court had great respect for the Parliament but it also had to examine if any constitutional deviation, violation or transgression had taken place while enacting the legislation.
The petitioners in the case had pleaded before the apex court that the concept, preparation, endorsement and passing of the law was an act tainted with mala fide. Therefore, the bill should be struck down after declaring it to be without lawful authority and of no legal effect, the petition contended.
Moreover, they said the federal government could not frame any law that seeks to interfere or regulate with the functioning of the apex court or the powers exercised by it or its judges including CJP, under the Constitution.
Justice Isa refuses guard of honour
Separately, Justice Isa refused to receive a guard of honour upon arriving at the SC for his first day as the new chief justice. He was given a warm welcome by the SC staff and was presented a bouquet of flowers from the registrar.
Chief Justice of Pakistan Qazi Faez Isa was given a bouquet of flowers upon his arrival at the Supreme Court. — DawnNewsTV
“Thank you all so much. We need a lot of cooperation from you all,” he told the staff, adding that he would hold detailed meetings with them later as he meetings and the full court hearing scheduled for today.
CJP Isa observed that people did not approach the top court when they were “happy”, adding that the people wanted an end to the issues that plagued them.
He urged the court staff to treat visitors like “guests”, calling on them to keep the doors of the top court open and accessible for all.
“Help those coming [to the SC],” he said.
