Parliament passed law to regulate top judge powers with 'good intentions,' CJP Isa observes

Full court to resume hearing petitions against Supreme Court (Practice and Procedure) Act 2023 today at 11:30am

Abdul Qayyum Siddiqui
Maryam Nawaz
Full court led by CJP Qazi Faez Isa (Centre) is hearing petitions against SC law in this still taken from a video on October 9, 2023. — YouTube/PTVNews
Full court led by CJP Qazi Faez Isa (Centre) is hearing petitions against SC law in this still taken from a video on October 9, 2023. — YouTube/PTVNews 

ISLAMABAD: Chief Justice of Pakistan (CJP) Qazi Faez Isa has observed that parliament passed the Supreme Court (Practice and Procedure) Act 2023 — the law seeking to regulate discretionary powers of the country’s top judge — with "good intentions".

The CJP’s remarks came as the Supreme Court’s full court resumed hearing the petitions against the SC law on Monday. The hearing of the case was broadcast live on state-run PTV.

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

CJP Isa-led full-court bench consists of 15 judges of the Supreme Court including Justice Sardar Tariq Masood, Justice Ijaz Ul 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.

After hearing today's arguments, the CJP adjourned the hearing till 11:30am today (Tuesday) and asked the lawyers to keep their arguments concise.

Can parliament correct CJP's mistake?

At the outset of the hearing, the CJP told the petitioners' counsels to conclude their arguments early as the top court wanted to conclude proceedings of the case today.

“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 President Abid Zuberi quoted a verdict to defend his objections to the law.

“This is not even a decision,” CJP Isa added.

CJP Isa asked if the parliament could correct a mistake made by the country's top judge.

The CJP directed his question toward the Supreme Court Bar Association (SCBA) President Abid Zuberi, while he presented his arguments pertaining to one of the pleas today on behalf of the association.

"If a Supreme Court chief justice made a mistake, can the Parliament correct it or not?" CJP Isa asked.

Responding to the chief justice, Zuberi said he was just coming to Article 184 (3) and agreed that it continues to be misused.

The CJP asked Zuberi if Article 184 (3) was used in the right or wrong way in the past, responding to which he said it had been misused and there should be an appeal against it.

The chief justice said that the court is hearing the current case under the same article.

“If the Supreme Court expands the scope of Article 184 (3) in cases, it is right, but it is wrong if the Parliament does the same?” CJP Isa asked.

Justice Mandokhail asked Zuberi regarding the fundamental rights that were being affected by the law.

Justice Minallah, in the course of the hearing, remarked that the Parliament has the power to expand or restrict the apex court’s jurisdiction.

“Can Parliament not legislate for fundamental rights?” he asked, addressing the SCBA president.

Justice Ahsan 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.

‘Our past is very rotten’: CJP Isa

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

Justice Ahsan 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 Akhtar.

The CJP asked Zuberi to end his arguments before taking a 20-miute break.

'CJP's powers listed in Constitution'

After returning to the hearing, lawyer Adnan Khan, who was representing a petitioned named Amir Sadiq, began his arguments, rejecting the Parliament’s powers to make SC rules by act.

“The framers of the Constitution deliberately did not give Parliament the power to alter the rules of the Supreme Court,” he said.

Khan added that through the SC law, the chief justice’s office has been made redundant by the Parliament.

“The Supreme Court stands on two bases, one is the chief justice and the other is the rest of the judges,” he said.

“What is the need to call the full court in this case then, only the chief justice would have heard it,” Justice Mandokail remarked.

The CJP, addressing Khan, said the powers given to the chief justice are listed in the Constitution.

“Apart from the Supreme Court, where has the chief justice been given sole powers?” he asked the counsel.

“The Constitution says that the chief justice himself can form benches without any consultation,” Khan replied.

He added that the powers of the CJP will be useless if two judges refuse to form a bench and only want to do chamber work.

Justice Minallah asked Khan which of his fundamental rights were being affected by the law.

“Parliament has no power to legislate, all fundamental rights are affected by it,” he responded, adding that Article 4 of the Constitution pertaining to access to justice was being violated because of it.

The CJP asked Khan is there was any law or Sharia law regarding the lack of right to appeal.

“Where in the law or Shariah is it mentioned that the judge’s decision will be final? Give me a reference,” CJP Isa remarked.

“I will submit the reference,” Khan said, concluding his arguments.

'SC should hear public interest cases'

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.

'Parliament can legislate on Federal Legislative Entries'

The CJP then summoned the attorney general to the rostrum. However, he told the SC that the Pakistan Muslim League-Quaid’s (PML-Q) 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.

‘Slave of the Constitution’

Justice Ahsan 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 inquired 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 Ahsan asked.

“Appeal is a fundamental right, Islam also grants it and the right should be given,” the lawyer said.

Justice Minallah said lawyers have, several times in the past, talked about the SC misusing its powers under Article 184(3).

“Can the jurisdiction be extended by an act of the parliament or does it require a constitutional amendment? Can other articles of the Constitution be amended without constitutional amendment?” asked Justice Waheed.

The CJP asked Ibrahim what will happen if the parliament abolishes 184 (3) through a constitutional amendment.

The lawyer told the judges to not see the law as an attack on the independence of the judiciary.

Justice Ahsan said the “only way to agree to the act is to close one’s eyes”.

“This court should not convey the message that the Constitution and law depend on who the chief justice is,” CJP Isa said, adding that the Constitution and law do not depend on the intention of the country’s top judge.

“If this is accepted, it will be the destruction of the Constitution and law,” he added.

The chief justice maintained that he is the “slave of the Constitution”.

During the hearing, CJP Isa allowed just two lawyers to be present at the rostrum.

“A hearing has been ordered in open court on this application. If something sensitive comes up, then in-camera arguments will be held in consultation with lawyers,” he said.

Responding to which, advocate Shah Khawar said that the lawyers will assist the court and inform them about reading a certain part of the statement by itself.

The PML-Q lawyer completed his arguments, after which PML-Nawaz counsel Salahuddin Ahmed arrived at the rostrum.

Case background

On April 13, an eight-member bench of the Supreme Court stayed the implementation of the law, which deals with the powers of the top judge in matters of public interest and seeks to limit the suo moto powers of the Chief Justice of Pakistan.

During the previous hearing in June, the similarities between the Supreme Court (Review of Judgments and Orders) Act 2023 — which relates to the right of appeal in suo motu cases — and the SC Practice and Procedure Act were discussed with Attorney General for Pakistan (AGP) Mansoor Usman Awan saying that parliament could look into "harmonising" the two laws.

Then-CJP Umar Ata Bandial — while he welcomed the proposal — said that the federal government should take the top court into consideration when making any legislation related to the judiciary.

The law

The law gave the power of taking sou motu notice to a three-member committee comprising senior judges including the chief justice. It further aimed to have transparent proceedings in the apex court and includes the right to appeal.

Regarding the constitution of benches, the Act stated that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges.

It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court's original jurisdiction, the Act said that any matter invoking the use of Article 184(3) would first be placed before the committee.

On matters where the interpretation of the Constitution is required, the Act said the committee would compose a bench comprising no less than five apex court judges.

About appeals for any verdict by an apex court bench that exercised Article 184(3)‘s jurisdiction, the Act said that the appeal would lie within 30 days of the bench’s order to a larger SC bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.

It added that this right of appeal would also extend retrospectively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the SC (Practice and Procedure), Act 2023, on the condition that the appeal was filed within 30 days of the Act's commencement.

The Act additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.

Furthermore, it states that an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing.