ISLAMABAD: The Supreme Court of Pakistan on Monday lifted a stay order on the implementation of the Supreme Court (Practice and Procedure) Act, 2023 – a contentious law which aims to limit the chief justice of Pakistan’s suo motu powers.
A 15-judge larger bench headed by the newly-appointed Chief Justice of Pakistan Qazi Faez Isa – in a historic first live broadcast of the court proceedings – heard the review petitions filed against the Supreme Court (Practice and Procedure) Act, 2023.
According to the short order, the 15-member full-court bench of the top court lifted the stay order over the implementation of the Act.
New CJP forms full court to hear pleas against SC Act
It said that the chief justice of Pakistan would now form benches after consultation with two senior judges under the SC (Practice and Procedure) Act, 2023.
At the outset of the hearing, CJP Isa said that the Supreme Court (Practice and Procedure) Act, 2023 was neither an attempt to clip the powers of the chief justice by devolving the suo motu powers to a three-member committee nor it threatens the independence of the judiciary.
The hearing continued throughout the day, and after hearing the arguments from the Attorney General for Pakistan (AGP) Mansoor Awan, Khawaja Tariq Rahim (advocate), Imtiaz Siddiqui (advocate), the bench adjourned the hearing of the case till October 3 with directives to the parties in the case to submit their replies by September 25.
At the outset of the hearing, the chief justice said that arguments in the case would begin afresh as the new bench had been formed, adding there were three applications to make a full court, which had been approved.
Ahead of the hearing, the Attorney General for Pakistan (AGP), Mansoor Usman Awan, submitted the federal government’s response in the matter, requesting the court to reject the petitions against the Supreme Court (Practice and Procedure) Act, 2023.
“The petitions against acts of parliament are inadmissible. Therefore, the petitions against the SC (Practice and Procedure) Act, 2023 should be dismissed,” said the response submitted by the federal government through AGP.
There are nine applications, the CJP remarked at the outset of the hearing, requesting Advocate Khawaja Tariq Rahim to begin his arguments.
In his observation during the arguments by Advocates Khawaja Tariq Rahim and Imtiaz Siddiqui, the chief justice made several observations.
In one of his observations, he said: “there is a difference between liking a law and its constitutionality as many laws I don’t like either, but that doesn’t mean they are wrong.”
He continued that the case did not relate to an individual’s rights but rather to the constitution and the rights of the Pakistani people.
He also said that he has taken an oath to safeguard the law and the constitution of Pakistan and not the apex court’s judgements after Advocate Imtiaz Siddiqui kept citing various judgments of the apex court in the past about issues pertaining to legislation.
The top judge of the country maintained that there are also various verdicts, validating the martial laws in the country, adding “Would it be right if such (controversial) judgements are cited”.
“Let’s accept we all have made mistakes in the past and I would say: focus on the law whether it affects the fundamental rights of people, public concerns and transparency (of the apex court),” he observed.
Justice Mansoor Ali Shah, another judge on the bench, also argued that the law had bolstered the judiciary’s independence.
“Nowhere in the world does a chief justice have such powers and the powers of the chief justice should not be seen as the independence of the judiciary,” Justice Shah said, arguing that parliament, as it represented the people of Pakistan, had the right to legislate.
Justice Athar Minallah also questioned whether it was right to give unlimited powers to the chief justice to form benches without consulting others, adding “The old system of bench formation vests all powers in one person.”
However, other judges like Munib Akhtar questioned the parliament’s role in judicial and administrative matters of the Supreme Court.
“Can the parliament legislate regarding administrative and judicial matters of the Supreme Court and isn’t it against the doctrine of division of powers of institutions,” Justice Akhtar asked.
He also questioned the AGP: “What if the parliament decides to legislate again and makes a law comprising all 17 judges of the apex court instead of three judges’ committee”.
To this, the CJP said that he wanted the AGP to focus on the instant case instead of talking on assumptions, i.e., what would happen if the parliament again goes for legislation tomorrow.
This prompted Justice Akhtar to say: I stand by my question and want you to respond to it.
Justice Ejazul Ahsan seconded Justice Akhtar. He questioned parliament “infringing” upon the rights of the judiciary, warning that such interference could undermine the judiciary’s independence.
“If the parliament interferes in the powers of the judiciary, the independence of the judiciary will be destroyed,” he remarked.
However, the AGP insisted that the legislation would not have any impact on the independence of the judiciary as the piece of legislation is meant to bring more transparency to the apex court.
Justice Ayesha, another member of the bench, who seemed quite vocal during the hearing of the case, asked Advocate Rahim: “what the effect of Section 5, which gives the right of appeal, would be if the law is sustained (…) given that the full bench will hear the case. Would the appeal not be heard?”
Resuming his arguments, Khawaja Tariq Rahim while referring to the act in question, said that the parliament formed a committee of three judges to decide on matters of public interest.
To this, Justice Jamal Khan Mandokhail, a member of the bench, questioned: “What does Article 191 of the constitution say”.
To this, Rahim said that the constitution empowers the parliament to legislate, and the apex court had made its rules through the full court.
During the reading of the Act, Justice Mansoor remarked: “What I understand of your point is that if all this is done by the full court, it is acceptable (and) if the parliament does this, it is wrong.”
“Can the powers of the chief justice be nullified by legislation,” questioned Justice Mussarat Hilali.
Upon this, Justice Mandokhail asked, “if the legislation abolished the powers of the chief justice or the Supreme Court.”
Are you satisfied if the chief justice has unlimited powers to form a bench, Justice Minallah questioned, while both CJP Isa and Justice Mazhar requested advocate Rahim to mention which section of the law the petitioner objected to and what article of the constitution, the act is in conflict with.
“Can’t three judges sit and interpret the constitution,” he pointed out. However, the CJP responded that only the number is being discussed in the legislation not the competency of the judges.
During the hearing, the CJP remarked: “this court is being run on the taxes of the people, and there are 56,000 cases before the bench,” adding “as we are hearing cases like this, another 150 cases will be added, which I don’t want”.
If this law is struck down, the chief justice will benefit, the CJP said. However, he reiterated that “a judge takes an oath to abide by the Constitution and the law and not by the past verdict of the court”.
He further observed that as the chief justice of Pakistan, “at least I don’t want an absolute authority for myself”, adding “$6.5 billion were lost due to the court’s decision in the Reko Diq case, and as chief justice, I don’t want such authority”.
After a brief hiatus, Attorney General Mansoor Usman Awan appeared before the court and argued that the petitions were inadmissible.
He said that the law dealt with the powers of one office, not the entire judiciary, and aimed to bring “democratic transparency” to the institution.
He further contended that the law, au contraire to the claims of the petitioners, actually served in the public interest.
The AGP further argued that since no external check or institution was involved or imposed by the Act, it did not, in fact, curtail the powers of the institution as a whole.
During the course of proceedings, CJP Isa observed that there was also a public opinion that Article 184/3 was misused, reiterating the three-judge bench nullified the Reko Diq agreement, causing a loss of $6.5 billion to the national kitty.
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 an inflated ego. We endorsed martial laws,” CJP Isa remarked, adding the judges should admit that they also made omissions.
“We take suo motu notices over every matter, why can’t we take suo motu 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,” he 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?
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”, to which he said: “PTI’s”. The top judge then assured him that they would listen to his arguments after recess.
When the hearing resumed after a 15-minute short break, the chief justice asked Advocate Tariq Rahim how long he would take to complete his arguments, to which he said that he would complete his arguments in two days.
When asked the same question to Bhandari, the PTI’s counsel said that he would take just half an hour. While Zaman Khan Wardak was of the view that he would submit his written arguments.
“It does not seem the hearing will be completed by today,” the CJP observed.
Copyright Business Recorder, 2023
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