SC adjourns hearing of petitions challenging law to clip CJP powers till Oct 3
SC asked lawyers to submit written arguments by September 25 | Historic live-streaming of full court hearing of SC aired on PTV| Federal govt urges apex court to reject pleas against Act: Says Parliament can legislate under Article 191 which does not prevent it from legislating
By News Desk
September 18, 2023 09:21 AM
The full court headed by Chief Justice of Pakistan Justice Qazi Faez Isa Monday adjourned the hearing on a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023, aimed at clipping the powers of the CJP regarding taking suo motu actions and forming the benches, till October 3, reported 24NewsHD TV channel.
After the hearing resumed after the second short break, Khawaja Tariq Rahim asked the court to give him two days time to submit written replies to the 22 questions asked during the hearing.
CJP remarked that they wanted to wrap up the case today but it seems not possible. He asked the other lawyers how much time they needed to submit their arguments.
Then the court adjourned the hearing till October 3 and asked the lawyers to submit their replies by September 25 and asked all the lawyers to remain present in the next hearing.
After discussing the matter with the two most senior judges, Justice Ijazul Ahsan and Justice Tariq Masood, CJP said that he would constitute the benches for next week's hearings of the different cases in the apex court.
For the first time in the apex court’s history, the PTV live-streamed the full court proceedings.
At the outset of the hearing, the federal government requested to reject the petitions against the Supreme Court (Practice and Procedure) Act.
Taking a stance, the federal government said that the petitions against the law of the Parliament are inadmissible, so the petitions should be dismissed.
The federal government also submitted a written reply to the Supreme Court, according to which Parliament could legislate under Article 191 of the Constitution, and Article 191 does not prevent Parliament from making laws.
The Independence of the judiciary is not affected by the SC (Practice and Procedure) Act and no power has been withdrawn from the Supreme Court under the Act.
Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahir Ali Akbar Naqvi, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musrat Hilali are part of the 15-member full court headed by Chief Justice Qazi Faez Isa.
Before the hearing, a full-court meeting was held under the chair of the Chief Justice of Pakistan to deliberate on a 4-point agenda.
In the meeting, the 4-point agenda including pending cases, cases heard on a priority basis, live streaming of court proceedings, and guidelines for effective hearing of cases were reviewed.
Live streaming of the SC Practice and Procedure case was allowed in the full court session for which cameras were installed in Courtroom No. 1 while cameras were also installed in the gallery of courtroom one.
Four PTV cameras were facing the bench while the fifth camera was facing the audience sitting in the courtroom.
A large number of lawyers were present in the courtroom while all the seats in Courtroom No. 1 were filled.
A large number of domestic and foreign media representatives were also present in the Supreme Court.
At the outset of the hearing, CJP Qazi Isa while addressing the lawyers said, “Appreciate that some of us have heard this matter and some of us are going to hear it for the first time.”
Justice Isa 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.”
Requesting the lawyers to keep their arguments brief, the CJP said “We will first hear Advocate Khawaja Tariq Rahim.”
As Khawaja Tariq set the proceedings into motion, Justice Ayesha asked 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 Khawaja Tariq 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 and proceed with your arguments,” CJP Isa remarked. Khawaja 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. Just restrict yourself to your case,” CJP Isa interjected.
Khawaja Rahim also referred to the 1980 Rules.
Justice Tariq Masood said that he should read the law first, it would be a great kindness of him, while Justice Ijazul Ahsan said which role he is referring to.
Justice Athar Minallah said ‘Khawaja Sahib, you came to the legal issues, which happened in the past, do you support it’. Justice Muhammad Ali Mazhar also questioned during the hearing.
Chief Justice Isa told Rahim that if there is a question from every side, he would find it difficult to answer, he should not answer the question immediately, note the questions and then answer, give arguments as he wants. .
Justice Jamal Khan Mandokhel remarked that he should read Article 191.
Khawaja Rahim said that the power to regulate the court belongs to the Supreme Court under the Federal Legislative List Schedule.
The Chief Justice remarked that first read the law and then interpret it. He said that the Supreme Court has its own power to regulate its powers. Are you saying that the 1980 Rules are inconsistent with the Constitution, the CJP asked the lawyer.
Khawaja Tariq Rahim said that the rules of 1980 were framed by the full court and those rules are correct.
Justice Minallah said, "Do you want to say that the Constitution and the law have been rendered ineffective by this law?"
The Chief Justice remarked ‘you should not talk about the future and limit your arguments to the present, if the legislation is enacted in the future, you will challenge it again’.
Justice Munib Akhtar said that allowing the 3-member committee to have the power of Clause 3 of Article 184, is it a judicial power or an administrative one.
He further raised the question that if there is an administrative authority, has the Parliament abolished the judicial authority?
Justice Ijazul Ahsan said that there is a decision of the Supreme Court in which there is a procedure for the use of Article 184. In this decision, the principle was laid down that a bench can refer the matter to the Chief Justice for the use of Article 184, Clause 3. .
Justice Munib Akhtar said that Chief Justice of Pakistan said to write down the question, the judicial authority has been abolished by the Practice and Procedure Law, the Parliament has blocked the path of judicial power by making a law.
The Chief Justice remarked that what is the definition of public interest and on whose behalf are you arguing?
Justice Minallah said, "Do you have any objection to exercising the inevitable powers of the Chief Justice?"
Khawaja Tariq Rahim said that Parliament has taken the authority.
Justice Musarrat Hilali asked if you think that the powers of the Chief Justice have been abolished by this legislation.
Justice Jamal Khan Mandokhel inquired whether the powers of the Chief Justice of Pakistan have been withdrawn and the powers of the Supreme Court have been abolished.
Justice Minallah asked that you agree that the Chief Justice of Pakistan is the master of the roster.
Khawaja Rahim argued that he is saying that this power cannot be used by Parliament.
Justice Munib Akhtar remarked that don't you think that the powers of the Chief Justice can be regulated only through constitutional amendment.
Justice Mansoor Ali Shah said, "Do you mean to say that 17 judges can regulate the powers of the full court but Parliament cannot?"
Khawaja Rahim replied that he is not saying so.
The Chief Justice remarked that he is requesting his fellow judges and they have come to help us, if there is a bombardment of questions from all sides, the case will not be able to proceed. The lawyer should argue in his own way.
Justice Jamal Khan Mandokhel remarked that we had a law of the military dictator, is the law of the military dictator correct or the legislation made by the parliament is correct.
The Chief Justice inquired that first just tell us whether the SC (Practice and Procedure) Act is constitutional or unconstitutional.
Khawaja Rahim said that a constitutional amendment is needed to grant the right of appeal and the Practice and Procedure Act is unconstitutional.
Justice Munib Akhtar asked whether Parliament can enact such legislation.
The Chief Justice remarked that you should proceed with arguments.
Justice Minallah said that the independence of the judiciary is a concept to prevent threats of external aggression.
The Chief Justice remarked that we don't want you to answer every question and we are not here to argue with each other, read one more section.
Justice Munib Akhtar said that he has got one more question, whether handing over the administrative powers of the Supreme Court to the Parliament does not conflict with the concept of separation of powers.
The Chief Justice remarked that he did not refer to any constitutional article. “We did not take suo motu ourselves. You have come forward to defend the judiciary itself and it is good that you are talking about my rights, but here the question is no. It is not a question of rights but a constitutional question, my friend judges questions are very good but for now just note the questions.”
With this, the court took a short break of almost 40 minutes till 3 pm.
When the court resumed hearing after the break, Attorney General for Pakistan Mansoor Usman Awan came to the rostrum. He said that these petitions are not maintainable.
He said as far the freedom of court is concerned, the judiciary used to make laws with the approval of the Governor General under the Government of India Act. And under the 1956 Constitution, the Supreme Court Rules were subject to the approval of the President. But in the Constitution of 1973, the judiciary was made independent.
The AGP said that SC (Practice and Procedure) Act is about the jurisdiction powers of just one post (i.e. CJP). This law will bring democratic transparency in the institution, he argued.
Justice Munib Akhtar remarked that the 1973 Constitution mentions the independence of judiciary.
The AGP said that this law is aimed at resolving the important public issues, adding that through this law, all powers are retained with the court. He said that the judiciary was made independent in the 1973 Constitution.
The legislators were not removed even in the 1973 Constitution. Now I will explain whether the act of Parliament comes in the framework of law or not, the AGP said.
The chief justice interjected and asked the attorney general to explain whether the act of parliament and law are the same or not, and what is its importance. \
The top judge wondered if wasn’t it advisable to go to the high courts first in matters related to the public interest or fundamental rights.
Justice Ijazul Ahsan remarked that the case is about the powers of the Supreme Court. “Do you reckon that the high court can look into the matter of the Supreme Court,” the judge asked.
The attorney general said that he had already told during a case hearing that a high court could see a case related to the SC affairs.
Justice Ahsan remarked that his opinion is in conflict with the Supreme Court’s judgment.
The AGP said that he is presenting his argument as the full court is hearing it.
Justice Yahya Afridi remarked that we are not talking about the right or wrong thing. We are not looking into the negation or violation of fundamental rights while discussing the maintainability of the case.
The AGP said that this case is not at all about the violation of the rights. The SC (Procedure and Practice) Act does not violate rights of anyone, he added.
Justice Minallah remarked that we want to know whether the Parliament does have the jurisdiction to enact this law. We will also have to see whether the components of the Article 184-3 have been fulfilled or not, he said.
Chief Justice Isa inquired when the laws used to be enacted with the approval of the President, what was the case? Whether the President used to employ his discretionary powers or the approval was given on advice, the judge questioned.
Then the top judge asked the attorney general not to give his arguments on the points raised by the lawyer of the petitioner. He asked him to give his arguments in favour of his own plea regarding the non-maintainability of the petitions.
During the course of proceedings, CJP Isa observed that there was also a public opinion that Article 184/3 was misused. The three-member bench nullified the Reko Diq agreement causing a loss of $6.5 billion to the country.
It was the opinion of the judges and it was not corrected, he added. The top judge admitted that they made mistakes. “Mistake was made in the Zulfikar Ali Bhutto’s case.”
“We have a huge ego. We endorsed martial law,” the CJP remarked, adding that the judges should admit that they also made omissions.
CJP Isa continued, “We take suo motu notices over every matter then whey can’t on legislation about ourselves.”
In Bhutto’s case, the review petition was also heard by the same judges who handed him the death penalty, the top judge stated. “Our ego should not be so huge that we do not admit our mistake.”
At this, Justice Minallah asked if the masses filed petitions after the endorsement of martial law and said, “We should also be held accountable.”
During the hearing, CJP Isa asked AGP Awan whether he was liable to follow the 1980 rules of the Supreme Court.
“Rules are there to guide us not to limit us,” the top judge observed.
However, Justice Akhtar said that the judges are not bound by the SC Rules, adding that in such a situation how can the Supreme Court judges be bound by the Act being challenged in the court?
Following this, CJP Isa announced that they were taking a “short break” and would resume hearing of the case.
However, as the judges were leaving the courtroom PTI’s lawyer Aziz Bhandari came to the rostrum.
Justice Isa, while addressing Bhandari, asked, "Whose lawyer are you?” He replied, “PTI's”. The top judge then assured him that they would listen to his arguments after recess.
Meanwhile, Justice Ahsan — on behalf of all the judges — conveyed good wishes to the attorney general who has to travel abroad today in connection with the Indus Water Treaty case.
At this, Justice Tariq observed: “The matter will end if we nullify the Act. But, if the law remains intact, then what will happen to the verdicts announced in the meantime?”
The attorney general replied that the “past and close transaction rule” may be applied in such cases. He maintained that the court could give protection to the verdicts made in the past. The attorney general apprised the court that he had completed his arguments in the case.
Law suspended by ex-CJP Bandial-led bench
Earlier in April 2023, the Bandial-led bench had suspended the law, which regulates the discretionary powers of the CJP's office to take suo motu notice through a committee of three senior-most judges including himself.
Since the enactment of the Supreme Court (Practice and Procedure) Act 2023, Justice Qazi Isa had avoided being part of any bench to hear cases.
The last PDM government had enacted the SC (Practice and Procedure) Act, 2023 with an aim of clipping the chief justice’s powers to form benches and fix any case before him.
That same month an eight-judge bench had suspended the law’s implementation after a set of three petitions were filed against it.
The 2023 law 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 law aims to ensure transparent proceedings within the apex court and safeguard the right to appeal. It outlines the constitution of benches, specifying that a committee consisting of the chief justice and the two senior-most 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 legislation stipulates that they must first be presented to the aforementioned committee for consideration.
Moreover, it grants the committee the authority to form a bench comprising at least three judges from the apex court, which may include members of the committee itself, to adjudicate on matters of significant public importance relating to the enforcement of fundamental rights.
Reporter Amanat Gishkori