The Supreme Court (SC) has resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 \u2014 which requires formation of benches on constitutional matters of public importance by a committee of three senior judges of the court.<\/p>\n
In a first, the hearing is being broadcast live on television with all 15 judges of the top court presiding over the case.<\/p>\n
After hearing arguments from two lawyers, the court decided to take a short break, saying that the hearing would resume after 3pm. When it resumed, Attorney General for Pakistan (AGP) Mansoor Usman Awan took the rostrum.<\/p>\n
Shortly after taking oath on Sunday, Chief Justice of Pakistan (CJP) Qazi Faez Isa \u2014 whose 13-month tenure ends in Oct 2024 \u2014 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.<\/p>\n
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.<\/p>\n
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law.<\/p>\n
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.<\/p>\n
At the outset of the hearing, the lawyers arguing the set of the pleas came to the rostrum.<\/p>\n
Addressing the lawyers, Justice Isa said, \u201cAppreciate that some of us have heard this matter and some of us are going to hear it for the first time.\u201d<\/p>\n
He said that since one member of the bench had retired there was a matter of reconstituting the bench. \u201cA question had also arisen whether I should be a part of the bench [\u2026] then the related question that all those who will become CJP should become part of the bench [\u2026] so I think the best way to resolve it was to constitute a full court if you agree [\u2026].\u201d<\/p>\n
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.<\/p>\n
\u201cThere is a right of appeal that is provided under this law. How do you visualise that right being exercised,\u201d 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.<\/p>\n
\u201cThe country expects 57,000 cases to be decided. We would love to hear you. But let\u2019s focus on your petition [\u2026] proceed with your arguments,\u201d CJP Isa remarked. Rahim then proceeded to read out the Act.<\/p>\n
However, he again stopped reading out the law and said, \u201cFraming 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.\u201d<\/p>\n
Article 191 reads: \u201cSubject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the Cou\u00adrt\u201d.<\/p>\n
\u201cThis 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,\u201d Rahim said.<\/p>\n
Justice Naqvi, however, wondered whether the lawyer was suggesting that he did not have any objection to the \u201cunaccountable powers in one office\u201d.<\/p>\n
\u201cIs that your question. Are you supporting what has happened in the past? What is your legal proposition?\u201d he asked. CJP Isa again asked Rahim to read the Act out loud.<\/p>\n
\u201cYou read the Act. Either you say this entire Act is ultra vires the Constitution, that\u2019s one contention [\u2026] You don\u2019t need to respond to every query immediately, it will make your life very difficult [\u2026] when you are done with your arguments, you can absorb the questions and respond,\u201d Justice Isa said.<\/p>\n
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.<\/p>\n
\u201cLet\u2019s not go into what they may or may not do [\u2026] 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,\u201d CJP Isa interjected.<\/p>\n
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.<\/p>\n
Article 184(3) of the Constitution sets out the SC\u2019s original jurisdiction and enables it to assume jurisdiction in matters involving a question of \u201cpublic importance\u201d with reference to the \u201cenforcement of any of the fundamental rights\u201d of Pakistan\u2019s citizens.<\/p>\n
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.<\/p>\n
\u201cIf 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?\u201d he asked.<\/p>\n
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\u2019s jurisdiction under Article 183.<\/p>\n
\u201cIt says where a bench [\u2026] 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.<\/p>\n
\u201cAnd 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,\u201d he said.<\/p>\n
Justice Akhtar then said, \u201cIt 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.\u201d<\/p>\n
He then remarked that Section 3 of the Act seemed to go beyond this. \u201cIt actually confers on the three-member committee, exercising administrative powers, to actually block the exercise of judicial powers.<\/p>\n
\u201cIt is not a question of constitution of benches [\u2026] The question here, it seems to me, is the very blocking of the judicial power itself and [can] Parliament do that,\u201d Justice Akhtar said.<\/p>\n
During the hearing, Justice Hilali wondered if the office of the CJP would become \u201credundant\u201d 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.<\/p>\n
In his arguments, after much prompting from the CJP Isa, Rahim said that Section 5, 6 and 7 were ultra vires the Constitution. At one point, the CJP again reminded the lawyer that he could note the questions put forth by the court and answer them once he was done reading out the Act.<\/p>\n
He took exception to the lawyer\u2019s argument thus far, saying that he had not referred to the Constitution at any point. \u201cStick only to constitutional arguments,\u201d he said.<\/p>\n
Advocate Imtiaz Rashid Siddiqui then came to the rostrum said that the fundamental question was whether Parliament had the power to promulgate this Act or not.<\/p>\n
\u201cNo, that is not the fundamental question, with utmost respect. The primary question is whether Article 184(3) can be invoked. First you overcome that hurdle and then you argue that,\u201d he told the lawyer.<\/p>\n
\u201cYou have filed a petition not in the normal jurisdiction, you have come in the original jurisdiction of the SC which is not a right. You have to comply with certain provisions of the Constitution,\u201d CJP Isa said.<\/p>\n
At that, the lawyer began referring to previous court judgement, but was interjected by the CJP.<\/p>\n
Justice Isa explained to him that the court sought his arguments on the invocation of Article 184(3), under which two primary points were to be established: that the case was a matter of public interest and it sought the enforcement of fundamental rights.<\/p>\n
He further said that had the high courts been moved on the matter prior to the SC and it had allowed the pleas, then \u201cyou would have come to us in the appellate jurisdiction\u201d.<\/p>\n
But the petitioners had opted to move the court under Article 184(3), which had a narrow scope, he added.<\/p>\n
Despite this explanation, when the lawyer proceeded to refer to previous judgements, the CJP asserted that the judgements were secondary to the Constitution.<\/p>\n
He then asked the lawyer to read out Article 189, which says: \u201cAny decision of the Supreme Court shall to the extent that it decides the question of law or is based upon or enunciates a principle law be binding upon all other courts in Pakistan.\u201d<\/p>\n
The CJP pointed out that the phrase used in the provision was \u201call other courts\u201d, not the SC. \u201cSo don\u2019t cite our own precedents to us. You are being asked a constitutional question,\u201d he said.<\/p>\n
Justice Minallah then said that Parliament had diluted the chief justice\u2019s discretionary powers. \u201cThat is all Parliament has done. It picked three judges. No one has come from the outside. It\u2019s still the chief justice and the two senior most judges. No one\u2019s fundamental rights are being affected, instead institutional independence is being strengthened,\u201d he said.<\/p>\n
He further said that a right of appeal was being provided under the new law. \u201cSo which fundamental rights of the petitioner have been violated under which you have [approached the court] under Article 184(3)?\u201d he asked.<\/p>\n
Siddiqui contended that the entire Act was ultra vires the Constitution as \u201cthis domain was not available to Parliament\u201d.<\/p>\n
However, Justice Minallah asked the lawyer to clarify whether he thought this was a much-needed law but thought that Parliament did not have the power to legislate on the matter.<\/p>\n
When the lawyer answered in the affirmative, the judge asked him to explain whether the status of SC rules was higher or lower than Parliament.<\/p>\n
However, in his later arguments, the lawyer said he was not accepting that this was good law. \u201cI think the idea is good,\u201d he said.<\/p>\n
At this, Justice Minallah asked whether the lawyer thought that the chief justice should have unbridled powers.<\/p>\n
Siddiqui said that under the trichotomy of powers, Parliament, the executive and the top court were to make their own rules. \u201cThose rules have a constitutional post and [on] a higher pedestal than ordinary law.\u201d<\/p>\n
When the judges again asked Siddiqui which fundamental rights were being violated, he specifically said those under Articles 9, 10 and 10-A.<\/p>\n
\u201cMy proposition is that the legislature is bound by the scheme of the Constitution, and the Constitution requires that the legislature will make its own rules. There are three organs of the state and they will function independent of one another,\u201d Siddiqui said.<\/p>\n
\u201cIt is my fundamental right to ensure and protect that this constitutional encroachment is not made by Parliament. And these are judgements on the issue which say that these are issues of violation of fundamental rights [\u2026] and if it affects a large community of people then it is a question of public importance,\u201d he said.<\/p>\n
However, CJP Isa again pointed out that the counsel was not developing his arguments and was just stating articles of the Constitution.<\/p>\n
At one point, Siddiqui said that the question of fundamental rights being violated was raised when Parliament did not follow due process when legislating and if there was evidence of \u201cconstitutional deviation\u201d.<\/p>\n
Justice Akhtar then asked whether the independence of the judiciary was a fundamental right and whether the independence of the judiciary was not a salient feature of the Constitution.<\/p>\n
He asked whether each time a full court was constituted, whether it was given a \u201cblank slate\u201d to disregard settled law and fundamental rights. \u201cIs this even in the power of the full court? If we are to do that, disregarding previous precedents, then surely we have to have weighty reasons to declare, for example that independence of the judiciary is not a salient feature of the Constitution,\u201d he said.<\/p>\n
He wondered if Parliament could pick and choose which judges were included in the committee. \u201cToday, Parliament says no less than five judges to hear Section 4. Tomorrow it says that family matters are not to be heard by less than seven judges. Is that part of access to justice?\u201d he asked.<\/p>\n
\u201cAs the SC, the defenders of the Constitution, are we to allow any erosion of independence of judiciary? Will that not be the grossest violation of fundamental rights?\u201d he wondered.<\/p>\n
At this, Justice Minallah stated that independence of the judiciary was not just an external aspect. \u201cIndependence of the judiciary is not just the external aspect. The most important is internal independence and institutional independence. Now you have conceded that this law actually secures internal and institutional independence,\u201d he said.<\/p>\n
He said that if the CJP had the rights which could be used to achieve certain outcomes in cases, then that was a \u201ccomplete erosion of the independence of the judiciary \u2014 an aspect which this court has never taken into consideration\u201d.<\/p>\n
Justice Shah said that countries like Nepal used a ballot to determine benches, noting that the chief justice did not have any say. \u201cSo this law is making these things clearer and improving independence [of the judiciary],\u201d he said.<\/p>\n
At one point, Justice Minallah said Advocate Siddiqui was perhaps confused and there was a need to understand that the powers of the CJP were different from the jurisdictional power of the SC.<\/p>\n
\u201cThis entire law has not touched the power of the Supreme Court. It\u2019s only the chief justice, and the chief justice, not the Supreme Court.\u201d<\/p>\n
But the lawyer argued against it, saying the law had \u201cobliterated\u201d rule 9.<\/p>\n
\u201cThe chief justice himself said in his judgement that benches cannot be constituted as per rule 9 when they have been constituted by the chief justice,\u201d he said.<\/p>\n
Asked whether the CJP could be separated from other judges in the SC, lawyer said \u201cno\u201d.<\/p>\n
\u201cThen how was the power given to the CJP [alone]?\u201d the court asked.<\/p>\n
To that, the lawyer said: \u201cSir, you surrendered \u2026 you authorised the chief justice and agreed to oblige with his decision.\u201d<\/p>\n
At that, Justice Mandokhail pointed out to him that the judgements were passed on the basis of rules before the Act under discussion was made.<\/p>\n
\u201cNow there is an Act. Are the judgements superior to the act?\u201d he asked.<\/p>\n
At that, the lawyer argued that the judges themselves said in their rulings that the rules were on a \u201chigher pedestal\u201d.<\/p>\n
Justice Ahsan then observed: \u201cIf this court interprets the law in a certain way \u2014 the law, an ordinary law \u2014 and the parliament changes that law, nobody has stopped them from doing that [in retrospect] \u2026 The distinction here is that the rules which have been framed in 1980 in exercise of powers under Article 191 of the Constitution are not interpreting any ordinary law which can be changed by any ordinary legislation.<\/p>\n
\u201cThis power has been exercised under the Constitution and it says so specifically \u2018in exercise of powers under Article 191 of the Constitution of Islamic Republic of Pakistan the Supreme Court makes the following rules\u2019.\u201d<\/p>\n
So, he explained, if the SC interpreted a law that the parliament then decided to change, it may do so.<\/p>\n
\u201cBecause they have made the law, they can change it,\u201d he said, adding that likewise, the SC too could change the rules it made.<\/p>\n
This aligned with the doctrine of separation of powers and trichotomy of powers, he added.<\/p>\n
After Advocate Siddiqui\u2019s arguments, the court took a short break and resumed the hearing with AGP Awan presenting arguments on the maintainability of the pleas.<\/p>\n","protected":false},"excerpt":{"rendered":"
The Supreme Court (SC) has resumed hearing a set of petitions challenging the Supreme Court (Practice and Procedure) Act 2023 \u2014 which requires formation of benches on constitutional matters of public importance by a committee of three senior judges of the court. In a first, the hearing is being broadcast live on television with all […]<\/p>\n","protected":false},"author":2,"featured_media":356666,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":{"0":"post-356665","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-top-news"},"yoast_head":"\n