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Supreme Court (Practice and Procedure), Bill 2023,

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SC directs AGP to submit parliamentary proceedings record in SC Practice, Procedure bill case​

The Frontier Post

ISLAMABAD (APP): The Supreme Court on Monday directed Attorney General for Pakistan (AGP) Mansoor Usman Awan to submit the record of parliamentary proceedings pertaining to the Supreme Court Practice and Procedure Bill case by Tuesday.

The eight-member larger bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Sayyad Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed heard the case.

During the course of proceedings, AGP Mansoor Usman Awan said the Federal Government and the Pakistan Muslim League-Nawaz (PML-N) had filed separate petitions for the formation of a full court bench. The CJP asked the AGP whether he had submitted the record of parliamentary proceedings. The AGP replied that his office had contacted the National Assembly Speaker’s office formally and informally, and expected to receive the record by tomorrow (Tuesday).

He said only the full court could amend the rules of the apex court. It was all the more necessary as the law would also be directly applicable to the judges who were not hearing the case. Justice Naqvi asked whether such legislation had been passed in the past. The AGP replied that the President’s permission was required to make the rules until 1992.

Justice Naqvi asked how could such legislation be made in the presence of Article 91. The AGP said the President’s permission was withdrawn while the provision to make the rules in accordance with the Constitution and the law was retained. He stressed that the full court bench should be formed as such a case had never come in the past.

Justice Ayesha Malik said many cases filed in the court were first of their kind. The AGP said the full court did not hear all cases of judicial independence but many cases, including former CJP Iftikhar Chaudhry’s case were heard by the full court.

Justice Ayesha Malik asked how could the court regulate its proceedings at the request of the petitioner. Pakistan Muslim League-Nawaz counsel Barrister Salahuddin said the implementation of the law had been stopped through an injunction for the first time. He said a full court bench was constituted in the Inspectorate General of Prisons case.

Subsequently, the court ordered the Attorney General to submit the record of the parliamentary proceedings by tomorrow and adjourned the case for three weeks.
 
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AGP admits two SC laws overlap​

CJP welcomes suggestion to amend laws; says govt should consult judiciary when making laws about SC

Correspondent
June 01, 2023


While welcoming the state’s top law officer’s statement that there is a need to harmonize two new pieces of legislation with regard to judiciary, the top judge on Thursday said the government should consult with the Supreme Court when drafting laws that deal with the working of the court.

“There should not be unilateral legislation with regard to the judiciary. The government should hold consultation with the Supreme Court while making laws with regard to administrative affairs of the judiciary,” observed Chief Justice of Pakistan (CJP) Umar Ata Bandial.

He was leading an eight-judge larger bench hearing petitions filed against the Supreme Court (Practice and Procedure) Act, 2023.

On March 29, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which sought to reduce the CJP powers to take suo motu action and constitute benches. The Senate endorsed the bill a day later on March 30.

The president, however, returned the bill to the parliament without signing it. The eight-judge larger bench of the Supreme Court on April 13 “pre-emptively” stopped the enforcement of the bill while hearing a number of petitions filed against the legislation.

However, the bill became a law on April 21, despite the top court’s order.

As the bench resumed hearing of the petitions on Thursday, Attorney General for Pakistan (AGP) Mansoor Awan said there is some overlap between the Supreme Court (Practice and Procedure) Bill, 2023 and the Supreme Court (Review of Judgements and Orders) Bill, 2023.

“The sections dealing with filing of review petitions and hiring counsels are somewhat similar in both the law,” the AGP said, adding that the scope of the Supreme Court (Practice and Procedure) Act, 2023 is broader as it includes sections related to internal working of the SC.

“There is a need to resolve the question as to which law should be relied upon,” the AGP added.

The CJP welcomed the AGP’s “suggestion” to create harmony between the two laws, adding that it is encouraging that the government and the parliament are ready to amend the laws to harmonize them.

“Now there are two ways to create harmony among these two laws:

“The first way is that the government harmonizes the two laws on its own; the second way is that the parliament keeps making laws and we keep hearing the case. Let’s see who does it first. You take advice from the government. We will also review this suggestion,” he noted.

The counsel for the petition, Imtiaz Siddiqui, called attention to the fact that despite the court's orders, the parliament had not provided it with the details of its proceedings related to the Supreme Court (Practice and Procedure) Bill, 2023.

The CJP noted that the court came to know the decision of the parliament not to provide details of its proceedings to the court through newspapers.

“However, the parliament is probably unaware that all this record is available on its website,” he said, adding that the bench had also gathered that record from the webpage. The court later adjourned for one week.

SC (Review of Judgements and Orders) Act, 2023

The National Assembly on April 14 passed the Supreme Court (Review of Judgements and Orders) Bill, 2023, which was moved as a private member’s bill by MNA Shaza Fatima. The bill also received the seal of approval from the Senate—the upper house of parliament—on May 5.

The bill was sent for the approval of President Alvi, who on May 25 signed the act into law. On May 29, the Senate Secretariat issued its gazette notification which the AGP also submitted to the apex court.

This new law has enlarged the scope of review petitions, allowing some politicians including former premier Nawaz Sharif to file appeal against an SC order that resulted in his lifetime disqualification in July 2017
 
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CJP says AGP's advice should be taken in review law​

Three-member bench continues to express reservations over new law granting option of appeal against suo motu rullings

Correspondent
June 16, 2023

Chief Justice of Pakistan (CJP) Umar Ata Bandial on Friday said that law related to the scope of review should be framed carefully with the advice of the Attorney General for Pakistan (AGP) as he has experience in litigations.

The CJP wondered whether a review could be merged with an appeal as he expressed reservations about the newly introduced Supreme Court (Review of Judgments and Orders) Act 2023.

"Some grounds should be added for reviewing the judgments given under Article 184 (3) of the Constitution," the chief justice said, "otherwise, that would mean rehearing the case."

Nonetheless, the CJP said that the court would welcome the decision to provide a remedy in judgments decided under the original jurisdiction provisioned by Article 184 (3) of the Constitution.

In May, a three-member bench headed by CJP Bandial and comprising Justice Ijazul Ahsan and Justice Munib Akhtar was hearing the Election Commission of Pakistan’s (ECP) review petition against its April order with regard to elections in Punjab when the AGP revealed that a new law enlarging the scope of review petitions had been enacted.

Subsequently, the apex court decided to hear the petitions filed against the review law together with the poll authority’s review plea.

Read Can a united judiciary reassert itself?

During the proceedings today, AGP Mansoor Awan defended the new law and said that review jurisdiction is altogether different as it posits that the original bench members would be included in the bench reviewing the case.

"When a high court decides a case, there are other appellate forums, including the intracourt appeal," the AGP argued, "even the SC could be approached against a high court's decision".

"However, when the SC decides a case under Article 184 (3), then is it the first judicial forum," he said stressing the need for the possibility to file a review plea.

"Under Section 3 of the new law, a larger bench will hear the case which will include the original three judges who initially heard the case," he stressed.

However, the CJ remarked that such provisions were "against the basic principles", before adding that "we can resolve this matter. Your opinion should have been accounted for in the review law for Article 184 (3)."

"We have not even come to the main question yet: How far can the review power be extended? They want to introduce provisions for review but on what grounds should the review be requested?" the CJ questioned.

"Your case is that there is overlap between the new laws," said Justice Ijazul Ahsan while referring to another law, the SC (Practice and Procedure) Bill, 2023, which curtailed the top judge’s powers to initiate suo motu proceedings and constitute benches on his own choosing.

"There is a contradiction here," remarked Justice Munib Akhtar referring to how similarities in the laws.

AGP Awan defended the case saying "as we speak, there is only one law because the other one stands suspended."

Subsequently, the court adjourned the proceedings until Monday (June 19).
 
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SC reserves verdict on pleas challenging review of judgments law

Haseeb Bhatti
June 19, 2023

The Supreme Court (SC) on Monday reserved its verdict on a set of pleas challenging the recently-enacted Supreme Court (Review of Judgments and Orders) Act 2023, which expands the scope of a review petition.

A three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Munib Akhtar and Justice Ijazul Ahsan heard a set of appeals challenging the law and the Election Commission of Pakistan’s (ECP) review against the verdict fixing May 14 as the date for holding Punjab Assembly elections.

At the previous hearing, the CJP had observed that laws like the Supreme Court (Review of Judgements and Orders) Act, 2023 should have been enacted after taking advice from people like the attorney general for Pakistan (AGP), who have experience with litigation.

He had said the apex court would welcome any remedy provided in respect of its orders or judgements given under Article 184(3), which allows the Supreme Court to assume jurisdiction in matters of public importance, but added that “we expect that such laws should be formulated carefully”.

During today’s hearing, AGP Mansoor Usman Awan and PTI lawyer Ali Zafar concluded their arguments in the case after which the apex court reserved its verdict.

“We will announce the verdict after discussing it among ourselves,” Justice Bandial said. “Let’s see what happens.”

The hearing​

At the outset of today’s hearing, the AGP resumed his arguments and contended that Article 188 of the Constitution — which states that the SC has the power to review any judgment pronounced or any order made by it — did not limit the scope of a review.

“Extending the scope of review in cases pertaining to Article 184(3) is not discriminatory,” he stated, highlighting that appeals were filed in the SC against decisions taken by high courts or tribunals.

“But a case linked to Article 184(3) comes directly to the apex court,” Awan said.

Meanwhile, the CJP said that the SC had not opposed expanding the scope of the review. “The question is on the manner in which the scope of review was expanding,” he said.

Justice Bandial also pointed out that the Indian supreme court did not give the right of appeal in such cases. “We don’t understand the reason for expanding the scope of review.”

For his part, the AGP said that the top court had the power of review under Article 188 of the Constitution and there was “no limit” as per the law. “But cases and appeals under Article 184(3) cannot be treated in the same way,” he argued.

At that, the top judge remarked that lawmakers had the power to legislate but at the same time asked how review and appeal can be viewed as the same.

“The court has to keep facts in consideration,” Justice Bandial said. “If the power of review is extended, will it not be discriminatory?”

The AGP replied that there were several decisions of the Supreme Court regarding the legislative power of Parliament. “A separate jurisdiction has been kept for review in cases pertaining to Article 184(3).”

Awan further stated that the impression that some people were being exploited by granting the right of review was incorrect. He also said that the facts of the case would not be altered by expanding the scope of review.

“In review [cases], the aggrieved party must be allowed to raise every legal point. Even those legal points that were not raised earlier can’t change the facts of a case,” the AGP stated, adding that even the Indian SC had accepted raising new points in the review.

At one point during the hearing, Justice Akhtar asked if the AGP wanted the court to omit the word “appeal” from the law.

“I have not reached that point yet,” the attorney general replied, conceding that the wording of the review of judgments law was not the best and there were some “issues” with its language.

Continuing his arguments, the AGP said that if the scope of Article 184(3) had been expanded, the same should have been done with the scope of review.

“Earlier, the judges who had issued the verdict could also become a part of the larger bench hearing the review,” he recalled, adding that power to constitute benches still lay with the SC.

“So, if a judgment has been given by a three-member bench, can a four-judge panel hear the review petition?” Justice Akhtar asked.

To that, the AGP said: “Larger means larger, no matter how many judges.”

Subsequently, the CJP said that the court was discussing constitutional jurisdiction. He added that in an appeal “you have to show an error in the first judgment”.

“You are talking about hearing the case again … there must be some grounds for it,” the top judge said. “We are accepting your argument that there should be a remedy against Article 184(3). But the remedy should be given as per constitutional requirements.”

“It is necessary to clarify the grounds for the remedy,” Justice Bandial further observed.

“If the court sees an injustice, it uses the scope of Article 187 of the Constitution,” he said, adding that the SC didn’t need to make an announcement regarding this.

The AGP, on the other hand, assured the court that the review judgments law was not an interference in the judiciary’s freedom. “If someone has an objection to the law, they could have approached the high court,” he added.

At that, Justice Akhtar highlighted that the law under discussion was directly related to the powers of the SC. “Is the top court not the right forum to challenge the law in?”

The AGP replied that the matter would have eventually landed in the SC. Wrapping up his arguments, Awan requested the bench to dismiss pleas against the review of judgments law.

He then left the courtroom saying that he had to discuss the Supreme Court (Review of Judgments and Orders) Act 2023 with the prime minister.

Subsequently, ECP lawyer Sajeel Swati came to the rostrum and sought 10 minutes to present his arguments. However, the judges directed him to submit a written response and directed Barrister Ali Zafar — who attended the hearing via video link — to complete his arguments.

The PTI lawyer contended that the AGP had failed to answer the most basic question in his arguments. He also pointed out that the Indian SC’s decision referred to by Awan was not relevant.

The lawyer then said that constituting a larger bench for a review would mean that the entire hearing would be conducted again. “The new judges in the bench will have to hear the case again.”

He added that if only the review was concerned, the original bench could correct the mistakes made in the earlier verdict.

Subsequently, the court reserved the verdict on the pleas against the review judgments law with the CJP saying that a decision would be taken after discussion.

Review of judgments law​

Called the Supreme Court (Review of Judgements and Orders) Act 2023, the new law is aimed at facilitating and strengthening the SC in the exercise of its powers to review its judgements.

The act asked to enlarge the jurisdiction of the apex court as expressly provided under Article 188 of the Constitution, which empowers the apex court to review any judgement and to ensure the fundamental right to justice by providing for meaningful review of judgments and orders passed by the SC in the exercise of its original jurisdiction under Article 184(3).

Under Section 2 of the act, the scope of the review, on both facts and law, will be the same as an appeal under Article 185 of the constitution. Section 3 says that a review petition will be heard by a bench larger than the bench which passed the original judgement or the order. Likewise, Section 4 empowers the petitioner filing review to appoint any advocate of the Supreme Court of their choice for the review petition.

Section 5 says that the right to file a review petition will also be available to an aggrieved person against whom an order has been made under Article 184(3) of the Constitution prior to the commencement of this act. However, the review petition, under this section will be filed within 60 days of the commencement of the act.

Section 6 says the review petition will be filed within 60 days of the passing of the original order, adding the provisions of the act will have overriding effect notwithstanding anything contained in other laws, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and the high court.
 
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SC to hear review plea against bill on CJ’s powers​

CJP-designate Qazi Faez Isa to take up the matter on Monday

Correspondent
September 16, 2023


justice qazi faez isa photo file

Justice Qazi Faez Isa.

ISLAMABAD:
The Supreme Court fixed the hearing of a review petition against the SC (Practice and Procedure) Bill, 2023 – which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity – on September 18 (Monday).

The Registrar's Office has notified all relevant parties and it is being expected that a full court session will be convened to take up the matter at hand.

Chief Justice-designate Qazi Faez Isa will preside over the bench after taking the oath of office.

The outgoing government PDM had enacted the Supreme Court (Practice and Procedure) Act, 2023 with a aim of clipping the chief justice’s powers to form benches and fix any case before him. The bill was passed by the parliament earlier. However, an eight-judge bench, including the CJP, stayed the bill’s implementation after a set of three petitions challenging it.

The SC (Practice and Procedure) Bill, 2023, serves multiple purposes, including the delegation of suo motu notice-taking authority to a three-member committee composed of senior judges, including the chief justice. The bill aims to ensure transparent proceedings within the apex court and safeguard the right to appeal.

The bill outlines the constitution of benches, specifying that a committee consisting of the chief justice and the two most senior judges will be responsible for constituting benches to handle cases, and decisions will be reached by majority vote.

Regarding cases invoking the apex court's original jurisdiction under Article 184(3), the bill stipulates that they must first be presented to the aforementioned committee for consideration.

Moreover, the bill grants the committee the authority to form a bench comprising at least three judges from the Supreme Court, which may include members of the committee itself, to adjudicate on matters of significant public importance relating to the enforcement of fundamental rights.
 
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CJP questions how practice and procedure law diminishes SC’s powers

Dawn.com
October 3, 2023

Chief Justice of Pakistan Justice Qazi Faez Isa on Tuesday questioned how the Supreme Court (Practice and Procedure) Act 2023 could diminish the powers of the apex court.

He made the remarks as a full court resumed hearing pleas against the law which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. Like last time, the hearing is being streamed live on television.


Key points:

  • CJP Isa says court wants to try and conclude case today
  • Lawyer Ikram Chaudhry argues an effort has been made to enter into an area not in Parliament’s domain
  • “Is Parliament not competent to legislate in relation to access to justice?” asks Justice Minallah

Headed by CJP Isa, the bench consisted of Justice ardar 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.

In a pre-emptive move, the Supreme Court — then led by former CJP Umar Ata Bandial — in April had barred the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.

Earlier during the hearing, the CJP indicated that the SC may conclude proceedings on the petitions against the law.

Replies submitted to court​

On the very first day of assuming charge as the chief justice, CJP Isa had ordered the hearing to be live-streamed and had implicitly vacated the April 13 suspension of the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.

Though the court order did not explicitly say that the stay on the implementation of the law regulating the powers of the top judge had been vacated, Justice Isa stated he would consult with two senior-most judges Sardar Tariq Masood and Ijazul Ahsan regarding the formation of benches — a key clause in the law. Subsequently, the full court had asked the parties concerned to submit written replies before the next hearing.

Last week, the Pakistan Muslim League-Q (PML-Q) had pleaded before the apex court that the Act was aimed at promoting the independence of judiciary, the rule of law, and the right to access to justice and fair trial.

The party, represented by its counsel Zahid F. Ebrahim, said SC rules provided that the legislature could determine the practice and procedure of the court in relation to the constitution of benches, in particular. Parliament has the right to enact the subject legislation and has done so strictly in accordance with the law and the Constitution, the response said.

Meanwhile, the government had argued that if the Supreme Court (Practice and Procedure) Act 2023 was sustained, verdicts handed down by benches constituted before enactment of the law would be saved as past and closed transactions.

But if the benches are still hearing the cases, then such benches should be reconstituted by a committee of three most senior judges, said a reply filed by Additional Attorney General Chaudhry Aamir Rehman on behalf of the federal government.

Referring to a question put by the full court on Sept 18 that could a right of appeal against judgements arising out of Article 184 (3) be created through ordinary legislation, as opposed to a constitutional amendment, the government contended that the original jurisdiction of the apex court under the provision was sui generis in nature and it cannot be bifurcated into criminal and civil aspects.

Those aggrieved by judgements under Article 184 (3) may go for a review on the same grounds as are available for review of judgements rendered under Article 185, the reply said.

On the question of whether the regulation of practice and procedure by Parliament undermines the judiciary’s internal independence, the government stated that no restraint could be placed on the institution’s performance and operation. Independence of judiciary implies independence of judges, institutionally as well as individually, from the executive, the government further stated.

Today’s hearing​

At the outset of today’s hearing, CJP Isa said that the law affected the chief justice and the two senior most judges of the apex court. “On one hand, the CJP’s powers, if not being limited, are being reduced. On the other, the same powers are being distributed among senior judges,” he said.

Justice Isa said that the law would also apply to future chief justices and senior judges of the apex court. He said that he had felt that he should not be a part of the bench hearing the pleas but because it affected all judges, it was deemed fit that a full court preside over the case.

Addressing the lawyers gathered, he urged them to talk about points that were relevant to the case. “We want to try to conclude [the case] today,” he said as he highlighted the backlog of cases in the SC. He said that if the lawyers wished to make additional arguments, they could submit a detailed response to the court.

Starting his arguments, lawyer Ikram Chaudhry, representing petitioner Niazullah Khan Niazi, read out the opening paragraph of the Act. He argued that the paragraph indicated that the law was being enacted for a “certain or a specific purpose”.

However, CJP Isa interjected and asked whether the law stated this or the lawyer was implying this. “Let’s not put words in a statute which don’t exist. If that is your impression, then say so,” he remarked.

The lawyer then went on to Section 3 of the Act, which states that a committee of judges would constitute a bench to hear matters of public importance. He said that the clause was an “encroachment on the area which falls within the legal framework”.

Regarding the provision of appeal under the Act, the lawyer said that “additions” to Article 183 of the Constitution — which empowers the SC to entertain public interest litigation in its original jurisdiction — could only be made with a two-thirds majority in Parliament. He further said that Section 8 of the Act had “bulldozed the concept of the independence of the judiciary”.

“So an effort has been made to enter into an area which is not within Parliament’s domain,” Chaudhry said. “In a parliamentary system, parliament and the executive are one, the same phenomenon in the Constitution. They have a nexus amongst themselves,” he said.

He further said that the law was passed by a “truncated” Parliament, which did not have the authority to make constitutional amendments.

At one point, the lawyer argued that the enactment of the Act “totally denies the Constitution itself”. “When there is a wide law, [which is] fundamentally unconstitutional, it would be within the SC’s authority to look into it and declare it ultra vires,” he said.

At one point, CJP Isa asked, “When you talk about the independence of the judiciary, is it a unique thing or is it for the people and their rights? Is independence of the judiciary a standalone concept which should be defended under all circumstances?”

During the hearing, Justice Akhtar said that the question at hand was of legislative competence. “Not perhaps how ‘good’ or ‘bad’ this law is. The question that is perhaps agitating the petitioners […] is that is there legislative competence? If the answer is [yes], then the matter proceeds in one direction. But if the answer is that there is no legislative competence, then that ends the matter.”

Justice Akhtar said that the technical term used in constitutional law, for when the legislature tries to make a law beyond its competence, was a “fraud on the constitution”. “Those are very strong words,” he said as he again highlighted the question of legislative competence.

He referred to Section 7 of the Act, which states that an application pleading interim relief shall be fixed for hearing within 14 days from the date of its filing. “Now some may say this is a ‘good thing’. The question is can Parliament regulate SC down to this nitty gritty level? Is this what independence of judiciary and separation of powers is all about?”

At one point, however, CJP Isa highlighted the amount of time the lawyer was taking to present his arguments. “This case will not go on after today,” he said as he told the lawyer that he would have to spend the same amount of time listening to the other petitioners in the case.

During the hearing, Chaudhry said that Article 239 barred the government from making constitutional amendments without having a two-thirds majority.

Justice Ahsan then went on to say that Parliament was not competent to make the Act as it “essentially requires a constitutional amendment which is a totally different species of laws and which requires a totally different procedure which Parliament needs to adopt . And since that procedure has not been adopted it can be argued that Parliament was not competent to make this law which has the effect of amending the Constitution.”

“Yes, my lord. That’s my submission,” Chaudhry said.

Justice Minallah said that in his opinion, all the law did was to secure and ensure access to justice. “Is Parliament not competent to legislate in relation to access to justice? Providing an appeal is access to justice. Even regulating the chief justice’s powers is also an element of access to justice.”

Chaudhry said that the legislation in question affected the independence of the judiciary and also completely regulated the internal workings of the court. He said that the Parliament had acted beyond its mandate as he concluded his arguments.

Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, then took the rostrum. He started off by saying that the question at hand was of legislative competence. He said that the judiciary was one of the three pillars of the state.

Referring to Article 50, he said that it highlighted that it concerned the Majlis-i-Shoora. He said that the bill was sent to the president for his assent, who then raised an objection. The lawyer said that this indicated a “dispute” within Parliament over the passage of the bill.

Talking about Article 184(3), he argued that the law was replacing the SC’s function and transferring it to the committee, which “may not even be considered as a judicial function and would be an administrative function”.

“Are you contending that individually, chief justices cannot invoke this power and this power vests exclusively in the SC, which means the chief justice and all the judges of the SC?” CJP Isa asked.

Irfan said that the powers were given to the apex court which then drafted the SC rules. “The SC then delegated their own power as a whole to the chief justice,” he said.

Here, Justice Ahsan noted that Article 191 had empowered the SC to make rules that were administrative in nature, adding that the formation of benches and fixation of cases was an administrative power.

“So what the law does is, it removes the power from the chief justice and assigns it to two more judges, a committee of three judges,” he noted. Justice Ahsan said that in exercise of administrative powers the court could delegate its powers.

“That power has been exercised under Article 191 which is a constitutional mandate. So where a constitutional mandate empowers the SC to make rules, those rules have a certain sanctity attached to them,” Justice Ahsan said.

Article 191 reads: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

The court then took a break in proceedings. When they resumed, Irfan continued his arguments and urged the court to review the “true purpose” of Article 184(3). He contended that the article did not state that a constitutional right had to be violated for an appeal to be filed. He then proceeded to read out the article out loud.

When asked which fundamental right the petitioner seeking was seeking to enforce, the lawyer responded that it was the right of access to justice.

Here, Justice Mazhar pointed out that the lawyer was referring to the part about public importance rather than fundamental rights. Justice Minallah then asked, “If the chief justice has exclusive rights, then access to justice is not affected?”

“It is his prerogative whether he fixes for hearing or not but he will not decide whether this petition should go for hearing or not, whereas this committee is going to decide [that],” the lawyer contended.

Here, CJP Isa asked Irfan about his interpretation of the new law. Justice Ahsan then remarked that the lawyer was “going into the nitty gritty of the law” when he first needed to answer what fundamental rights were being impacted by its passage.

He also observed that the full court hearing the case amid the petitioners’ and the government’s differing views proved that the case was a “maintainable petition”, hence, arguments on that aspect were not needed.

At one point, Justice Ayesha asked the lawyer if the absence of the right of appeal in the case of a full court barred the petitioner from access to justice. “Is this a substantive right that is being prevented?” she asked.

The lawyer replied that it did bar access to justice and said the solution was in Article 186, which would allow a full court to hear the case.

Irfan noted that the Constitution was the one thing supreme to both, the SC and the Parliament. The oaths for all offices have the words “preserve, protect and defend the Constitution” in common, he stated. The lawyer then proceeded to read out the oath for judges out loud.

When Irfan said that it was “equally incumbent upon the Parliament to follow the Constitution”, CJP Isa asked rhetorically, “Can there be two opinions on this?”

The top judge remarked that the lawyer touched upon one topic but then moved to the other without completing his arguments for the former. “I haven’t used my pen yet. I will write if I understand your arguments.”

When asked by Justice Mazhar whether Parliament had the competence to enact the law or not, Irfan answered in the negative. Upon being asked if the lawyer considered that the SC’s verdict on a matter should be final and not valid for appeal, Irfan replied that he did not think so.

Here, CJP Isa highlighted that lawyers and civil society had objected to the overuse of Article 184(3) in the past.

The lawyer then proceeded to argue that each time a new CJP would come to power, there would be no certainty of decisions and benches. At this, CJP Isa asked, “Do you want us to open the door for the next martial law?”

At one point during the hearing, CJP Isa observed that it needed to be ascertained whether the law pertained to the benefits of the people or to their loss rather than the benefits to the chief justice.

Here, Justice Akhtar noted that the apex court did not need the right to appeal in order to correct its past verdicts. He asked whether section 3 of the law was in direct conflict with Article 184(3).

Justice Shah then asked the lawyer if he thought the Parliament could legislate regarding the SC’s practice and procedures under Article 191 of the Constitution. To this, Irfan answered in the negative.

Justice Shah noted that Article 191 authorised Parliament to “go ahead with a legislation” about the practice and procedures of the SC, as well as when read with Article 58. He asked Irfan to explain how the said articles did not empower Parliament to do so, as the lawyer had contended.

“Until you don’t admit, there cannot be a correction,” CJP Isa said as he noted that prioritising the verdict of a bench could amount to a violation of the Constitution.

Multiple judges then asked the lawyer to elaborate the meaning of the words “subject to the Constitution and law” in the law empowering the SC to make rules, and whether it limited the apex court’s powers.

Here, Justice Akhtar pointed out a conflict in the Act that as per the lawyer, there could not be a repeal or an implied repeal but section 2 of the Act meant repealing of Order 8.

The judge then read out aloud Article 171 of the 1956 Constitution, which he said provided a “direct enabling grant” and had different language from today’s Constitution.

The lawyer argued that the committee was “preventing access to the Supreme Court directly and preventing the Supreme Court from making an order”.

Justice Akhtar then stated that the Parliament’s jurisdiction to legislate on SC matters, if it existed, came into being under the 1973 Constitution, noting that there was a “continuity perhaps” as the SC rules had already existed before but were just amended in 1980.

At this point during the hearing, Justice Minallah asked Irfan to cite any examples, if there were, from “any jurisdiction around the globe that give precedence to rules made by an unelected court over a primary legislation made by a competent forum”.

To this, the lawyer responded that the rules enacted would have to be within the Constitution.

Here, Justice Mandokhail asked the counsel whether the Constitution had placed any bar on the Parliament to make a law that was inconsistent with the SC rules. Irfan replied: “If there is no bar, there is no permission either.”

CJP Isa then remarked that the lawyer was simply answering in “yes or no” rather than presenting arguments for his stances. He proceeded to observe that the Act was not only regulating the Supreme Court’s practice and procedures as indicated in its name but also “creating a substantive right of appeal”.

Here, Justice Ahsan asked the lawyer if providing the right to a fresh appeal meant “conferring the jurisdiction or enlarging” it. To this, Irfan replied that it was conferring the jurisdiction.

The top judge then remarked that the counsel was not providing proper answers to the questions, reminding him that he had taken too much time.

Lawyer Uzair Karamat Bhandari, representing the PTI, then began his arguments. He told the court that he had instructions to support the petitioners but “with some caveats”.

“I am not saying that Parliament, per se, cannot make any law as far as the practice and procedure of the SC is concerned. It can but that power is heavily circumscribed by various express and structural limitations within the Constitution,” he said.

Bhandari said that Parliament drew its legislative powers from Article 142 and a set of provisions in the body of the Constitution. He said that the question that arose whether Article 191 by itself was a source of legislative power.

“My submission on that is that it is not,” he said. The lawyer contended that the preamble of the law identified the source of legislative power which Parliament had invoked, namely Article 175(2) and Article 191.

Article 175(2) provides that no court will have any jurisdiction unless conferred on it by the Constitution or by under any law.

Bhandari then referred to Article 142. “So the legislative power is conferred with respect to identified subjects and the appropriate legislature is identified,” he contended.

“So you are saying Parliament does not have the power to legislate except items mentioned in the federal legislative list? Is this what you are saying,” CJP Isa asked.

“Yes,” the lawyer responded, adding that this also included what was mentioned in the body of the Constitution.

Giving an example, CJP Isa then said that under this argument Parliament could not legislate with regards to artificial intelligence, outer space and social media as they were not mentioned in the FLL or the Constitution. He urged the lawyer not to “paint broad strokes”.

During the hearing, Bhandari said that the rule-making power was a standalone and independent power of the SC. He said that Parliament could legislate in this regard but there were “limits” to this.

He contended that when it stated “subject to the law” in Article 191, in order to know what law could be made in this context, one would have to examine other provisions of the Constitution.

The lawyer said that under Entry 55, which outlined the scope of the jurisdiction and powers of the SC, there could only be an “enlargement of jurisdiction” when there was an express authorisation by or under the Constitution.

At one point, CJP Isa interjected and said, “I am trying to wrap my head around the fact that you keep saying its taking away the power. The first power was conferred by Parliament through the Constitution.

“That power is being enlarged. If this power was given to, for example the Senate of Pakistan […] then maybe yes, you are absolutely correct. But this power has not gone out of this building. It remains within the building […] so you’re saying that more minds will actually be destructive of the 184 inherent power?” he asked.

Justice Isa said that while the chief justice’s powers were being reduced, the powers of the apex court were increasing. “How are you saying they are being reduced,” he asked the lawyer.

The CJP said that if the courts were making laws, then it was “wrong”. “Their power is to interpret law. If a law violates some constitutional provisions, strike it down,” he said, adding that he didn’t feel as though the court’s powers had been taken away.

When the hearing resumed after a short break, Justice Minallah asked the lawyer that if Parliament enacted a law regarding data protection which was in conflict with the rules made by the SC under Article 191, would the rules prevail or the act?

“In that scenario, the rules will prevail because in order to make a law on data protection, which also provides for the practice and procedure of the SC, it (Parliament) also has to go through Entry 55. So the conditions of Entry 55 will have to be met which may not be possible in this case because there is nothing in the body of the Constitution […] which allows Parliament to make this law and authorises it to enlarge the jurisdiction,” Bhandari said.

He said that when there was an express statutory power by virtue of “an express matter in the Constitution”, then it was possible for Parliament to provide rules for practice and procedure but not otherwise.

The lawyer said that case law was clear the rules would prevail. He said that ex-premier Yousuf Raza Gillani was tried and convicted for contempt. “The trial was conducted by this honourable court,” he said.

“Here, it seems, that the procedure that their lordships [followed], was that laid down in the Contempt of Court Ordinance and not that laid down in the SC rules,” he said.

He argued that when Parliament enacted a law on a subject on which the Constitution expressly authorised it to enlarge the jurisdiction of the SC, then it could also prescribe rules for the court’s practice and procedure for that subject only.

He contended that the power to “regulate the exercise of the power of contempt” would include the power to frame a law which allowed for trial and creation of an appellate forum.

“This is exactly what has been done in the Practice and Procedure Act as well,” CJP Isa remarked.

However, the lawyer disagreed and said that there was nothing in Article 184(3) which stated that the power conferred under it could be regulated by law. He said that the power to regulate included the power to grant substantive right of appeal.

Justice Ahsan remarked that when there was a specific power conferred by the Constitution to frame a law, then that law could be framed and in that law an appeal could be provided. He noted that the Constitution may not specifically say that such law may provide for an appeal.

“It is inherent in it. Where the Constitution confers the power to frame a law on that particular subject, it gives you ancillary powers, which include the power to provide an appeal,” he observed.

However, in terms of Article 191, there is no power, he said. Justice Ahsan said that the power to frame rules was only conferred on the SC. He said that Entry 55, even if it was used standalone, “does not meet the muster”.

CJP said that if Parliament had been given the right to grant an appeal for Article 6 (high treason) and contempt, then the question that arose was that was giving an appeal wrong?

“If an appeal is given, what is wrong with that?” he asked. Justice Isa noted that the lawyer was appearing on behalf of a political party. He said that the arguments the lawyer made could also have been made in the adjoining building, a reference to Parliament House.

In response, Bhandari said that the decision to resign from the assemblies was a political decision.

At one point during the hearing, Justice Ayesha asked: “When we read the word law, how do we see which authority is competent whether it is the federation or province?”

Meanwhile, Bhandari mentioned previous instances where provinces had sent appeals to the SC without there being an act of Parliament.

“Bhandari sahab, isn’t it distinguishable because here the appeal is being provided against a judgement passed by the highest court while exercising its original jurisdiction … there is no other court above it. So it is actually securing the right of access to justice,” Justice Minallah highlighted.

However, the PTI lawyer argued that the question was of competence. “The province was not competent to legislate just as the Parliament is not competent, in its capacity, to provide an appeal for Article 184(3),” he said.

As Bhandari cited Article 175(1) to support his argument, the CJP asked if he was suggesting that the chief justice was omnipotent. Justice Isa gave what he called an “absurd example” of revoking Bhandari’s license and barring him from appearing court “in a fit of rage”.

“What can you do? Nothing … surely we are also human beings … I remain vulnerable and that’s what your mighty teaches us that you will make mistakes,” the top judge said.

He further stated that the lawyers themselves had pointed out that Article 184 was often used incorrectly and the Parliament saw this. “Therefore they gave a right of appeal.”

“You can raise a finger on the Parliament but you are quiet on the omnipotency of the chief justice,” Justice Isa said.

Meanwhile, Justice Ahsan remarked here that there could be instances where some SC judgements could be wrong. “But the policy of law is that there has to be a finality attached, if you keep giving appeals then it is an endless exercise which would deplete the entire purpose of the judicial system,” he said.

Here, the CJP said he both agreed and disagreed with Justice Ahsan to an extent. He highlighted that the concept of finality didn’t exist in the world without appeal.

Bhandari, for his part, said US SC had original jurisdiction. However, Justice Isa noted that there was difference that all the judges heard cases in the US. He also expressed frustration over repeated comparisons with the US.

During the hearing, Justice Isa said that the real question was whether Parliament could give a right to appeal or not.

Justice Ayesha also asked here: “If right of appeal is substantive, then how can a committee of three judges control that right?”

Bhandari replied that it highlighted the problem with the provision, adding that the administrative power was used to stultify the exercise of judicial power. “If the right of appeal has to be provided in every case … that means nine benches will always have been available to hear an appeal … the largest bench that can therefore be formed would be an eight-member bench.”

However, the CJP said Bhandari’s argument was “fundamentally flawed”. He also asked Bhandari what difference did it make “to a political party” and what gains or losses were they getting from it.

“It is not about benefit or loss, the only concern is … my client could be in power again, the history of our country teaches us this, so even then, I am under instructions to state that a parliament should never be allowed to do this,” the PTI lawyer said. However, he was cut short by the CJP who interjected that in cases such the one being currently heard, lawyers were supposed to assist the court.

“This is not your party’s right to give instructions,” Justice Isa said, adding that Bhandari was first and foremost an officer of the court.

For his part, the PTI lawyer recalled that physical attacks took place in this court and therefore “a firewall was formed to protect the judiciary”.

“We want to protect the Parliament as well,” the CJP said.

Separately, Justice Ahsan said: “Under the constitutional scale, each organ of the state has been provided the bar to make its own rules. The judiciary doesn’t make the rules of the Parliament or the executives. The judiciary makes its own rules.

“Only those rules made by the executive or other organs that are in conflict with the Constitution can be looked at by us and if we find that they are in conflict they are being struck down. So those three firewalls have been intentionally created by the Constitution and the interest of every citizen of the state is that they remain intact.”

He went on to ask how could a procedural law provide an appeal. “It can’t,” replied Bhandari.

Justice Akhtar also asked if it could be said that the rule-making power of the court and that of the Parliament extended over the same area under the subject matter.

“If it is used as an enabling provision, then yes,” Bhandari said. “If this is so, then how can the Parliament can use Article 191 to bring a substantive right to appeal?” Justice Akhtar questioned.

At one point during the hearing, Justice Isa highlighted that if, supposedly, he as the CJP became unreasonable and said no to calling a full court, “then nobody can do anything about it”.

“How will you resolve this? The Parliament has said that the CJP may not like it but we have made an intent to resolve it. Because your conduct has shown you are never going to do it,” he said and also asked if Islam permitted such a powerful body.

Justice Hilali also pointed out that “constitutional amendment was formed unconstitutionally”.

Meanwhile, Justice Minallah highlighted that Bhandari was representing a political party and could be in power in the future but did not repose trust in the Parliament.

“So, do you think it is a matter should have been in the first place taken up under Article 184(3) because everyone and kindly if you could come up with any example in any jurisdiction where a good law, that ensures justice, has been struck down by any court?” he asked.

Bhandari said the Indian SC did that in the advocate of record case in 2016, highlighted that a constitutional amendment was struck down because it violated the independence of judiciary.

However, Justice Minallah pointed out that the law under discussion was advancing the judicial independence.

Justice Isa, at one point, also asked Bhandari if his political party could commit to repealing the law if and when it came to power but the lawyer refused to do so.

Justice Minallah again asked Bhandari if the PTI supported the powers vested in the CJP and not three judges to which the lawyer said that he did not support that. “So it is a good law,” the judge said.

Bhandari contended that he didn’t believe the law was good and if the PTI came to power, it would advice it to come up with a better law.
 
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Parliament shouldn’t be hampered from doing good just because it lacks two thirds-majority, CJP remarks

Dawn.com
October 9, 2023

Chief Justice of Pakistan (CJP) Justice Qazi Faez Isa on Monday remarked that Parliament should not be hampered from doing good just because it lacked the two-thirds majority required for passing a constitutional amendment.

He made the remarks as a full court resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 — which requires the formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.

The hearing, which began shortly after 9:30am, is being streamed live on television.

Headed by CJP Isa the bench consists 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.

In a pre-emptive move, the Supreme Court — then led by former CJP Umar Ata Bandial — in April had barred the government from implementing the bill seeking to curtail the chief justice of Pakistan’s powers once it became a law.

At the previous hearing, CJP Isa had questioned the many legal challenges to parliament’s legislative authority, saying there had been much nit-picking over laws enacted by assemblies, but in the face of martial laws imposed in the country, there was always a complete surrender.

“We pick errors whenever parliament made a law, but surrender ourselves completely when martial laws were imposed in the country,” Justice Isa had said.

“This Courtroom No.1 carries pictures (of former CJPs) who obviated their oaths by validating martial laws, but nobody moves petitions to express opposition [to their action], except when parliament enacts laws,” Justice Isa quipped during a televised hearing. Justice Isa had intended to wrap up the case the same day, but it was adjourned till today due to time constraints.

Resuming the hearing, Justice Isa said today was the last day of the hearing. The court heard arguments from a number of counsels, including Supreme Court Bar Association President Abid Zuberi and PML-N lawyer Salahuddin Ahmed.

However, a little before 6pm, the CJP adjourned the hearing till 11:30am tomorrow (Tuesday).

‘Today is the last day of hearing’​

At the outset of the hearing, SCBA President Abid Zuberi said that Article 175(2) and Article 191 had been quoted in the Act. He read out Article 191 which states: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court”.

The lawyer contended that the “only authority that can make rules regulating the practice and procedure of the court is the honourable SC and not Parliament”.

He said that “subject to the law and the Constitution” did not mean that Parliament could legislate in this regard. “If rule-making power is made subject to legislation, then the rule-making power of the SC will become functus officio,” he said.

He further contended that constitutional grant of rule-making power was construed as a continuing power, “so there cannot be any limitations on that”.

However, CJP Isa stated that under the counsel’s arguments six words of the Constitution could be deleted “as rendered meaningless”. “I am reading it like that if I accept your contentions,” Justice Isa said.
 
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Pleas against law clipping CJP’s wings: Justice Isa urges judges to let counsels finish arguments

Dawn.com
October 10, 2023

As the Supreme Court heard on Tuesday petitions challenging a law that would curtail the top judge’s powers, Chief Justice of Pakistan Qazi Faez Isa asked his fellow judges to allow lawyers to complete their arguments before questioning them after the counsels were repeatedly interrupted by the judges.

The remark came as a 15-judge full court heard nine challenges to the Supreme Court (Practice & Procedure) Act, 2023, which was streamed live on television.

Headed by CJP Isa the bench consists 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.

The Supreme Court (Practice & Procedure) Act, 2023, would require a committee of three senior judges to form benches for constitutional matters of public importance and suo motu notices, among other amendments.

The law, which was passed by parliament in April, has been seen by the petitioners as an attempt by the government to curtail the chief justice’s powers.

In April, the Supreme Court, then led by former chief justice Umar Ata Bandial, barred the government from implementing the law until the petitions challenging it were decided.

At the previous hearing, Chief Justice Isa observed that Parliament must not be hampered from doing something good merely because it lacks two-thirds majority.

In the hearing before that, he questioned the many legal challenges to parliament’s legislative authority, noting that there had been much criticism of laws enacted by assemblies, but in the face of martial laws imposed in the country, there was always a complete surrender.

Justice Isa had intended to wrap up the case the same day, but it was adjourned till Tuesday due to time constraints.

Today’s hearing​

As the hearing began, MQM-P’s lawyer Faisal Siddiqui argued that the petitions should be dismissed on merit.

Siddiqui said he would not raise the question of admissibility of the applications, but discuss two judgments cited by the petitioners.

During the hearing, the chief justice asked his fellow judges to allow the counsel to complete his arguments after Justice Munib Akhtar questioned Siddiqui in the middle of his argument.

“I think counsel is entitled to argue any which way they want to. Let us hear you. I have to hear you to decide what you say and if we have already formed opinions, we can reflect them in our judgements,” the chief justice said.

Justice Akhtar, however, stressed that it was not an opinion but his right to question the lawyer as a member of the bench, protesting being “interrupted all the time”. In response, the chief justice responded by saying it was the counsel that was being interrupted, and asked Siddiqui to continue his arguments.

For his part, the MQM counsel said petitions against the practice and procedure law were maintainable but should be dismissed on merit. However, the CJP responded that despite four hearings, it was the court’s performance that the case had not concluded.

Meanwhile, Siddiqui also recorded his contention that an intra court appeal was “liberating” and both the SC and Parliament can provide for them.

Here, Justice Ahsan said the basic principle was that an appellate for the right of appeal was provided by the statute which conferred the jurisdiction in the first place.

“Here, the jurisdiction creating statute is the Constitution, if the right to appeal is provided, it has to be provided by the Constitution and not by sub-constitutional legislation,” the judge said.

At one point during the hearing, CJP Isa asked if any political party voted against the law in question. For his part, Siddiqui said the PTI opposed it in the Senate.

Meanwhile, Justice Minallah said the separation of powers was not restricted to the judiciary. “What if the judiciary starts encroaching upon the powers of the legislature … so the Parliament is empowered to legislate and all that they have legislated is something that ensures access to justice,” he said.

The CJP also asked if the SC rules were binding on an apex court bench. Siddiqui replied in the affirmative.

“If a bench of this court states that rules under Article 184(3) have not been formulated in the SC Rules 1980 and therefore matters in such rules cannot be fixed for hearing … can such a bench pass such an order?” Justice Isa asked.

“And can the bench then say let the full court make such rules?” the chief justice added.

In response, the MQM counsel said the bench can pass an order if such a restriction is present in Article 184(3).

However, Justice Isa asked: “So all power vests in the CJP, not in the full court because the full court is then dependent on whether the chief justice wants to call a full court meeting or not?”

He also told the MQM counsel to answer the questions raised by the bench instead of going round and round.

Siddiqui then said that the independence of the judiciary would not be threatened if the role of the CJP was reduced. As the MQM counsel continued, Justice Akhtar interjected, which prompted Justice Isa to say that he wanted the lawyer to first answer his question and then continue with other concerns raised.

Subsequently, Siddiqui said there was nothing in the law in question that made the Parliament the master of the roster. “In terms, there is no constitutional provision that gives this elated position to the CJP … for example giving the power to constitute benches to a three-member committee, how does that violate the independence of the judiciary?”

Here, Justice Isa asked that if the CJP was not calling a full court, then there would be a “logjam” and that was the fundamental argument.

On the other hand, Justice Akhtar said the problem was not the creation of the committee but the fact that it was created by the Parliament, hence making the legislature the master of the roster.

However, the CJP said every institution was responsible for conducting self-accountability. He added that saying the new law was worse than the incumbent system at the SC was wrong.

At the same time, Justice Minallah asked the MQM counsel if the SC was empowered under Article 191 to remove the difficulties highlighted in court. “The power vests in us.”

“Yes, I don’t see how this law puts the independence of the judiciary under threat,” the lawyer stated.

At one point, Justice Isa asked if there was a remedy to the CJP refusing to call a full court. He also recalled that the last time a full court sat down was in 2015, over the 21st Amendment.

Separately, on a lighter note, Justice Naqvi said a cricket team could only win with one captain, not three.

After the MQM counsel concluded, Attorney General for Pakistan (AGP) Mansoor Awan came to the rostrum and said he would try to complete his submissions within an hour.

However, the CJP asked the AGP if he was available tomorrow and suggested that the hearing could be resumed on Wednesday morning. Awan replied in the affirmative after which Justice Isa adjourned the proceedings.
 
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CJP Isa says SC and Parliament not enemies, can co-exist as proceedings wrap up

Dawn.com
October 11, 2023

Chief Justice of Pakistan (CJP) Qazi Faez Isa on Wednesday said the Parliament was not an enemy of the Supreme Court and both institutions could function simultaneously as the apex court reserved its verdict on a set of petitions challenging the SC (Practice & Procedure) Act, 2023.

The law, which was passed by Parliament in April, requires a committee of three senior judges to form benches for constitutional matters and suo motu notices.

It has been seen by the petitioners as an attempt by the government to curtail the chief justice’s powers.

In April, the Supreme Court, then led by former chief justice Umar Ata Bandial, barred the government from implementing the law until the petitions challenging it were decided. The decision was taken by an eight-member bench consisting ex-CJP Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Mohammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

A day after he was sworn in, on September 19, incumbent CJP Qazi Faez Isa resumed hearing the petitions with a full court bench and ordered live-streaming of the entire proceedings.

Headed by Justice Isa, the bench consists Justice Sardar Tariq Masood, Justice Ahsan, Justice Syed Mansoor Ali Shah, Justice Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Naqvi, Justice Jamal Khan Mandokhel, Justice Mazhar, Justice Ayesha, Justice Athar Minallah, Justice Rizvi, Justice Waheed and Justice Musarrat Hilali.

So far, five hearings have been conducted. At the previous hearing, an exchange between judges and counsel hinted at the disquiet among judges over the court’s workings.

Towards the end of today’s proceedings, which started at 11:30am and concluded a little after 4pm, CJP Isa reserved the verdict.

He said the judges would hold discussions on the matter and if consensus or clarity was reached, the verdict would be announced. “Otherwise the verdict would stay reserved. If there is a need to convene again, we will, or else we will send you a message,” he added.

Later, court associates said the verdict would be announced at 5:30pm.

The hearing​

At the outset of the hearing today, Attorney General for Pakistan (AGP) Mansoor Usman Awan presented his submissions. He said his arguments would be based on the government’s written response submitted in court.

“You are saying you not repeat the arguments but will highlight them,” the CJP said here, to which Awan stated that he would talk about the independence of the judiciary and Article 191 of the Constitution.

Article 191 (Rules of procedure) states: “Subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Court.”

The AGP added that three questions were raised during the proceedings on the matter in discussion and he would respond to them. He said Article 191 did not take away the Parliament’s right to legislate.

“Parliament has given the judiciary its independence but has also not limited its right to legislate,” Awan said.

Here, Justice Akhtar recalled that before 1973, changes to SC rules were conditional to the permission of the governor general or president.

For his part, the AGP said there were no restrictions on the Parliament amending rules under Article 191.

“Are you saying that there are no restrictions on the Parliament amending rules formulated by the SC?” Justice Ahsan asked. “So are there no restrictions on SC amending laws created by the Parliament?”

Awan replied that the Parliament was the institution that created laws. He further stated that if the number of pending cases in the apex court crossed 70,000 a need may arise to create another law.

Meanwhile, Justice Naqvi asked if the AGP had brought the record of the number of parliamentarians who had debated on the practice and procedure law. “It is present on the website,” Awan replied.

At one point, CJP Isa said institutions should be “pitted against each other” and there should be mutual respect among them.

“In my opinion, the Parliament respected the SC. If it wanted, the Parliament could have taken another step which it did not. I believe that step was not taken because the Parliament trusts us,” he said.

The top judge further stated that the scope of the matter should not be widened. “Parliament is not our enemy neither does it consider us enemies. Both can be run simultaneously,” he said.

“The world is moving forward while we are going backwards. There are a number of challenges that we are seeing, including climate change,” Justice Isa added and cited the phrase “live and let live”.

“The world moves forward together, not antagonistically,” the apex judge said.

He then instructed the AGP to focus on the attack on the Constitution.

Resuming his submissions, Awan said the Constitution did not recognise any convention but didn’t recognise customs or usages having the force of law.

However, Justice Akhtar stressed that the Constitution has to be read on the premise that there have to be constitutional conventions.

For his part, the AGP said the Constitution never acknowledged the CJP as the “master of the roster”. Here, Justice Isa interjected and asked about the genesis of the term and whether it was even used today. Awan replied that the term came from the colonial British times.

The CJP again questioned if such a term existed in Islamic history and criticised the dependence on “colonial masters”.

At one point, Justice Akhtar said that the master of the roster committee, under the new law, would do the same work that the CJP used to do. If you don’t want to give the power to one judge, why give it to three judges, he asked.

“If any CJP has not given the power to full court in the past, then you do it,” the judge remarked.

On the other hand, Justice Ahsan said the foremost question was whether the Parliament was competent and the second was that if the Parliament was competent, some provision of the law inconsistent with the Constitution could be struck down.

“You would have to take us to each provision and justify that it is not in conflict with any provision of the Constitution,” he added, asking the AGP to proceed.

Meanwhile, the CJP said that it wasn’t acceptable that the Parliament was restricted while the SC kept taking decisions, recalling that orders have been passed in the past where judges were restrained from being a part of benches.

Justice Isa expressed displeasure that this was, however, not being discussed by anyone from the petitioners’ side.

“The time has come for the country to move forward. The way courts are used, as they say, ‘misuse of due process’. Guns are being fired from our shoulders and martial laws have been endorsed,” the top judge said.

Institutions, Justice Isa continued, were not perfect but they should be developed and respected. “But anyone who talks about betterment, they are reprimanded,” he said.

“Keep a balanced approach, you are the Attorney General for Pakistan. At the moment, you are an officer of the court, not just representing the government’s approach, because there is no government in the sense that there is a caretaker government and a neutral set-up now,” the CJP told Awan.

The judge added that there was a difference between the government and Parliament.

During the hearing, the AGP revealed the details of judgments taken under Article 184(3) and their outcomes. He said Steel Mills had record losses of Rs206 billion since June 2022.

“Are you trying to say that all this happened because of SC’s action?” CJP Isa asked while Justice Naqvi stated a charge sheet should not be made against the apex court.

“Why are we so scared of listening to the truth?” the top judge said.

On the other hand, Justice Afridi asked what the AGP wanted from the chargesheet. “Do you want us to call the practice and procedure law lawful through the doctrine of necessity?”

Here, the CJP once again questioned, “Why are we scared of criticism”.

Separately, Justice Akhtar reprimanded the AGP and said: “This is not a debate society neither are we sitting here to listen to your lectures.”

Meanwhile, the CJP said calling legislation by the Parliament a “chargesheet” would not be correct. He added that he spent most of his life as a lawyer and counsel, irrespective of whether the judges like it or not, continue their arguments.

After the AGP concluded his arguments, Lawyer Hassan Irfan, representing petitioner Mudassar Hassan Jura, and Supreme Court Bar Association (SCBA) President Abid S. Zuberi also completed their submissions.
 
So according to decision:
- Chief Justice cannot take Suo Moto action by himself (upheld) ---> So all future Chief Justices of supreme courts are neutered by Army.
- Chief Justice alone can no longer form the bench of judges to hear cases - So role of Khaki judges is enhanced ---> Win for army.

- The section about granting Nawaz Sharif appeals in Previous Suo Moto decision is repealed --> to make sure that PML(N) plays by Army's playbook.






 
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Orya Maqbool Jan's Analysis on Practice & Procedure Act verdict​


 
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