ISLAMABAD: The Supreme Court of Pakistan adjourned hearing a set of petitions challenging the SC Practice and Procedure Act 2023 till October 3.
A full court of the Supreme Court headed by Chief Justice of Pakistan Justice Qazi Faez Isa heard petitions challenging the law which aims to curtail the powers of the chief justice in taking suo moto notices. The court has maintained the stay order against the implementation of the law.
For the first time, the hearing was being broadcast live on television with all 15 judges of the top court presiding over the case. Attorney General for Pakistan (AGP) Mansoor Usman Awan gave the government’s reply and asked the court to dismiss the petitions.
“We tried to complete the hearing but it is not possible to give a decision today,” Chief Justice Qazi Faiz Isa said. He said the court has heard all parties and the arguments by the Attorney General.
He said AGP said he was going to Vienna for the hearing of the Indus Water Treaty case. The court also asked several questions and the parties have sought time to answer them.
The court said Chief Justice consulted the two senior judges Justice Ijaz-ul-Ahsan and Justice Sardar Tariq Masood to form the benches. The court said the petitioners’ lawyers and the Attorney General have sought time to answer court questions.
The court said the request for the formation of a full court is processed and all parties should submit additional documents and responses by September 25.
CJP Isa said the date of the next hearing will be fixed in consultation. He said the next hearing will be held on October 3. He said new benches will be formed to hear small cases from tomorrow.
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.
Before the hearing began, the federal government urged the top court to dismiss the pleas challenging the law. Attorney General for Pakistan (AGP) Mansoor Usman Awan contended that the petitions challenging an act of Parliament were inadmissible.
Advocate Khawaja Tariq Rahim kicked off the arguments in the case, with Justice Ayesha asking what would happen to Section 5 on hearing appeals 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.
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Justice Isa then asked Rahim to read the law out loud. However, the lawyer kept getting sidetracked, with the judges repeatedly telling him to read the Act. CJP Isa asked him to focus on the petition and proceed with his arguments.
However, he again stopped reading And said that framing of these rules is the prerogative of the Supreme Court under Article 191, “This intrusion by the Parliament into the affairs of the SC prompted me to come forward and file this petition. I feel that every institution must remain in its domain,” he said.
Rahim said that Parliament should not have a say in functions that lay with the top court. He said that the Parliament could order that a particular bench hear 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. Restrict yourself to your case,” CJP Isa interjected.
Justice Akhtar questioned if Parliament could whittle down judicial power under Article 184(3) by providing that a committee, comprising three senior judges, be formed to decide the constitution of benches.
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.
“If 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,” he asked.
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’s jurisdiction under Article 183.
Justice Akhtar said the power to constitute the bench does not block the exercising of judicial power but simply determines which bench exercises the judicial power.
He then remarked that Section 3 of the Act seemed to go beyond this. “It actually confers on the three-member committee, exercising administrative powers, to actually block the exercise of judicial powers.
“It is not a question of constitution of benches. The question here, it seems to me, is the very blocking of the judicial power itself and [can] Parliament do that,” Justice Akhtar said.
Justice Hilali wondered if the office of the CJP would become “redundant” 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.
In his arguments, Advocate Rahim said that Section 5, 6 and 7 were ultra vires the Constitution. The CJP again took exception to the lawyer’s argument, saying that he had not referred to the Constitution at any point.
Justice Minallah said that Parliament had diluted the chief justice’s discretionary powers. He further said that a right of appeal was being provided under the new law. “
“That is all Parliament has done. It picked three judges. No one has come from the outside. It’s still the chief justice and the two senior most judges. No one’s fundamental rights are being affected, instead institutional independence is being strengthened,” he said.
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AGP argues maintainability of pleas
The AGP said his arguments for the rejection of the petitions centered on their failure to meet the criteria under Article 184(3), which relates to matters of public importance and its enforcement of fundamental rights.
He further said the law dealt with issues that were important to the public. He said as far as the independence of the judiciary was concerned, “no external element or institution, was given any role whatsoever under this Act in so far as practice and procedure of this court is concerned. It is all confined within this court”.
Justice Ahsan said both parties agreed that there was a question of public importance. “The only question now is whether a fundamental right has been violated, and if a fundamental right has been violated, which one,” he said.
Justice Isa further noted that the law was “sustainable unless otherwise proven”, saying that the burden of proof was on the one who challenged the law in this case.
The AGP said the petitioners’ argument was that the CJP’s powers had been curtailed under this law which made it unconstitutional. He said the Act did not in any way prevent the enforcement of any right.
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