Chief Justice of Pakistan (CJP) Qazi Faez Isa Monday observed that the parliament enacted the Supreme Court (Practice and Procedure) Act 2023 with good intention, regulating the discretionary powers of the chief justice.

A full court comprising all 15 judges of the apex court, headed by CJP Qazi Faez Isa, heard identical petitions challenging the SC (Practice and Procedure) Act 2023, which was live broadcast.

Other members of the full court were Justice Sardar Tariq Masood, Justice Ijazul Ahsen, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Aminuddin Khan, Justice Mazahar Ali Akbar Naqvi, Justice Jamal Mandokhail, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Athar Minallah, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed and Justice Musarrat Hilali.

Pakistan Tehreek-e-Insaf (PTI) and others including Advocate Muhammad Shafay Munir, Raja Aamir Khan and Chaudhry Ghulam Hussain had challenged the constitutionality of federal legislation, being the Supreme Court (Practice and Procedure) Bill, 2023.

The previous coalition government had enacted Supreme Court (Practice and Procedure) Act 2023, aimed at curtailing the powers of suo moto jurisdiction of the chief justice of Pakistan as well as constitution of benches through a three-member committee, headed by the CJP, along with two senior most judges of the apex court.

During the hearing, the chief justice observed “we should respect the Parliament for enacting a law with good intentions”. “If a patient is dying, should a person knowing medical not be allowed to treat the patient for not being a doctor,” the CJP remarked.

Justice Ijazul Ahsen remarked that neither Parliament can make the SC rules nor do legislation on it, as only the Supreme Court was competent to make changes to its rules.

Chief Justice observed that the Supreme Court was competent to make rules for its practice and procedure, but if it goes beyond it, then there should be someone to point out to it remain within its domain.

Justice Ijazul Ahsen, however, observed that the constitution has already cautioned the Supreme Court to make rules in accordance with the law and the Constitution.

During the hearing JUI-F and Jamaat-e-Islami supported the law and adopted the arguments of PML-Q.

During the course of his arguments, Abid S Zuberi, President Supreme Court Bar Association (SCBA), submitted that Parliament is not competent to regulate the practices and procedure of the Supreme Court.

During the hearing, the CJP expressed displeasure after a petitioner cited the US court’s verdict as precedent to challenge the amendments to the SC law.

“At least cite the decision of the US Supreme Court. Our standards have stooped so low that we are now citing a verdict of a New Jersey court,” the CJP remarked after Supreme Court Bar Association (SCBA) President Abid Zuberi quoted a verdict to defend his objections to the law.

“This is not even a decision,” CJP Isa added. The CJP asked Zuberi as to whether the Parliament could correct the mistake made by the chief justice. Zuberi, however, replied that he was just coming to Article 184 (3).

The chief justice asked the SCBA president as to whether Article 184 (3) was used in the right or wrong way in the past. Zuberi replied that it had been misused and there should be the right to an appeal against it, but with constitutional amendment, adding that the right to appeal was only available under Article 185 of the Constitution.

The CJP said that the court was hearing the current case under the same article. He remarked that if the Supreme Court expands the scope of Article 184 (3) in cases, it is right, but why it was wrong if the Parliament did so.

Justice Ahsen remarked that the question in the case is that of authority. “Tell me, no matter how good the law is, does the Parliament have the power to make rules for the Supreme Court?” he asked Zuberi.

In his query, Justice Minallah asked if the Supreme Court is violating the right to access to justice, can the Parliament not intervene then? “You have failed to argue the admissibility of this case,” he said, addressing the SCBA president.

Addressing Zuberi, both CJP Isa and Justice Ahsen delivered back-to-back and contrasting remarks regarding the Parliament’s powers.

Justice Ahsen said there will be no end to the Parliament’s powers, once the door is opened for it to interfere in the Supreme Court’s matters.

“The Constitution cannot operate like this,” he said. The chief justice, on the other hand, said: “Look at the past, one person comes and turns the Parliament into a rubberstamp.”

He added that all this does not happen in the US. “Our past is very rotten,” the CJP said. Justice Hilali, meanwhile, said the door of legislation is being opened with such a clear majority.

“The door is being opened by directly amending the Constitution through simple majority,” remarked Justice Munib Akhtar. Justice Athar Minallah observed that Parliament has the power to expand or restrict the apex court’s jurisdiction.

The judge questioned whether the Parliament should not intervene if the Supreme Court violates the right to access to justice. Justice Ijazul Ahsen observed that there will be no end to the Parliament’s powers once the door is opened for it to interfere in the Supreme Court’s matters.

During the course of hearing, CJP Qazi Faez Isa called Attorney General Mansoor Usman Awan to rostrum; however, he submitted that counsel for PML-Q Zahid Ibrahim wanted to present his arguments.

Zahid Ibrahim referred to Article 142-A of the Constitution that relates to Article 142-A of the Constitution stipulating that the Parliament shall have exclusive powers to make laws with respect to any matter in the Federal Legislative List.

The counsel submitted that many questions were raised regarding fundamental rights, but none of the petitioners had identified as to which of their fundamental rights had been affected. Similarly, he argued that the petitioner had also failed to justify as to how the law had diluted the independence of judiciary.

Justice Ijazul Ahsen asked the counsel as to how he could interpret the word of enlargement. Justice Muhammad Ali Mazhar observed that enlargement can be read with Article 175 of the Constitution, which is original jurisdiction.

The counsel, while citing a Supreme Court judgment PLD 1989 SC 6, contended that it was held in that judgment right of an appeal was recognised by the Holy Prophet.

“Let the Parliament do so, but it should be made by Constitutional amendment as well,” Justice Ahsen remarked, but recalled that in one of the judgments of the apex court, it was held that right to an appeal could be provided by a constitutional amendment.

Zahid Ibrahim, while referring to the contentions of the petitioners regarding independence of judiciary, cited judgments of the Supreme Court as well as international treaties about independence of judiciary.

“Once we open the door for parliament to make a law even on Practice and Procedure of the Supreme Court, tomorrow it could make another law,” the counsel submitted adding that it will be tested that whether the present law enacted by the Parliament is against the independence of judiciary.

“If doors strengthen my jurisdictions, then what is the fear in it,” Justice Mansoor Ali Shah remarked. Justice Ijazul Ahsen, however, observed that the Constitution does not provide for doors to the executive and parliament.

Justice Munib Akhtar asked the counsel as to who is the master of roaster? The committee, the counsel replied, but Justice Munib Akhtar observed that the committee is the creature of parliament.

“It is the parliament which is the master of roster, directly interfering in the independence of judiciary,” Justice Akhtar remarked. CJP Qazi Faez Isa observed that the extreme rules of Supreme Court 1980 stipulate that the chief justice would constitute benches, adding that a practice had been developed that every week a list of cases would go to the CJP about which case would go to which judge.

“This is not the job of the chief justice but the job of registrar as well,” the chief justice added. The chief justice observed that the Constitution is not the commodity or will of the CJP and this message should not go from this court. “I am not the master, but I am the saviour of the Constitution,” the CJP remarked.

Meanwhile, Barrister Salahuddin Ahmed, counsel for PML-N, while commencing his arguments, submitted that he will not raise questions over maintainability of the instant petitions. He submitted that the instant case related to internal threats to the independence of judiciary

He, however, contended that the constitutional guarantee of independence of judiciary covers both external and internal independence. He submitted that unlimited powers of the chief justice were not new and had been raised several times either by parliament or by bar associations.

He further submitted that several resolutions were passed by the parliament demanding to regulate the suo moto jurisdiction as well as master of roaster. The PMLN counsel contended that specific powers of chief justice were enshrined in the Constitution, adding that the power to constitute benches was not mentioned in the 1956 Constitution.

Justice Munib Akhtar, however, observed that the CJP as the master of roaster was a practice which continued for several decade during the British rule and stayed till 1935 Act.

When the PMLN counsel begin to cite an example from the Indian Supreme Court, the CJP interrupted and said that Pakistan gained independence in 1947. The chief justice said “we can learn from other countries by all means, but while we refer to Indian judgments, he has never seen it reciprocated in India”.

“Let us be guided by our own light,” the CJP remarked. Salahuddin, however, submitted that one should learn from the mistakes of the neighbouring countries.

The counsel, on one point, admitted that the right to appeal should be made through constitutional amendment. Justice Ijazul Ahsen observed that the interpretation is inclusively domain of this court. He asked the PMLN counsel as to whether the legislation can say that the Supreme Court has done wrong interpretation.

Justice Ayesha A. Malik asked the counsel as to how would he determine that it is the internal matter of the Supreme Court. Similarly, Justice Ijazul Ahsen observed that Section 3 and 4 of the Act is dictating the Supreme Court to constitute a bench comprising not less than a three-member bench. “Is it not the violation of separation of powers,” he asked the counsel.

Barrister Salahuddin also cited an article of former Chief Justice Asif Saeed Khosa, wherein he had stated that constitution of benches and fixation of cases was not the constitutional mandate of the CJP.

At this, Justice Munib Akhtar remarked that it means that the Parliament was empowered to do so. The CJP then summoned the attorney general to the rostrum. However, he told the SC that the Pakistan Muslim League Quaid’s (PMLQ’s) counsel wanted to present his arguments, after which the lawyer Zahid Fakhruddin G Ibrahim took the rostrum.

“The legislative authority related to the Supreme Court comes from Article 142. The Constitution also does not empower the Parliament to legislate for the Supreme Court,” he said. He asked the court to look at Article 191 with entries 55, 59 of the Federal Legislative List.

Justice Malik asked the counsel if the power to legislate on the rules been given. “There is a difference between Article 188 and Article 191.” “In Article 191, the SC does not have the power to make its own rules, it only recognises the right to make rules,” he said.

Ibrahim said he wanted to present arguments regarding the right to appeal before the court took a lunch break. “Parliament has the power to legislate on Federal Legislative Entries under Article 142 (2),” the lawyer said, after the hearing resumed.

“Article 191 under legislative authority says Supreme Court rules can be changed by law,” Justice Shah remarked. Justice Ahsen asked how was the scope of the law expanded by giving the right of appeal and how something can be added to the SC’s jurisdiction through legislation.

Justice Mazhar also asked if the jurisdiction’s extension can be read in conjunction with Article 175 clause (4) or not. “Is the appeal a matter of law or is it a fundamental right?” Justice Ahsen asked.

“Appeal is a fundamental right; Islam also grants it and the right should be given,” the lawyer said. Meanwhile, Kamran Murtaza, counsel for JUI-F told the court that they support the legislation and adopt the arguments made by PML-Q counsel while a representative of Jamaat-e-Islami also supported the law and adopted the arguments of counsel for the PML-Q.

The chief justice questioned as to why the stance of the PPP did not come in the instant matter. In his argument, Muhammad Shahid Rana, the lawyer and petitioner himself, maintained who would the appeal go to if the 15 judges make a decision.

“If 15 judges will decide, then the appeal will not be [made] here, it will go to Allah,” the CJP remarked. The lawyer then said that appeals to the Supreme Court are made under Article 185. “An appeal under Article 185 cannot be made under Article 184.”

“We will give you the answer to that in the decision,” CJP Isa remarked. He asked if all the decisions made within the scope of Article 184 (3) are correct.

“The Supreme Court should hear cases of public interest, not special interest, under Article 184(3),” the lawyer replied. Similarly, Faisal Siddiqui, senior lawyer, told the court that he would make arguments on Tuesday (today) on behalf of the MQM.

Earlier, during the course of proceedings, Imtiaz Siddiqui, counsel for one of the petitioners, came to rostrum and stated that he wanted to argue. However, the chief justice noted that he had done his arguments already and asked him not to interrupt. Meanwhile, the court adjourned the hearing until Tuesday at 11:30 am.


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2023-10-10

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