SC law interfered in court's independence: Justice Ijaz Ul Ahsan

SC adjourns hearing till tomorrow 11:30am after conclusion of arguments by MQM-P lawyer

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

  • MQM-P lawyer Faisal Siddiqui concludes his arguments.
  • PBC lawyer adopts arguments presented in favour of SC law.
  • CJP directs AGP to give arguments tomorrow.

ISLAMABAD: Justice Ijaz Ul Ahsan of the Supreme Court on Tuesday remarked that an attempt was made to interfere in the independence of the apex court by enacting the Supreme Court (Practice and Procedure) Act 2023.

The observation from the top court judge came during the hearing of pleas challenging the SC law seeking to regulate the discretionary powers of the country’s chief judge.

Chief Justice of Pakistan (CJP) Qazi Faez Isa-led full-court bench consisting of all 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 is hearing the case.

The hearing was broadcast live on state-run PTV.

In yesterday’s hearing, CJP Isa had observed that parliament passed the law with "good intentions".

The CJP had also hinted that they may try to wrap up the hearing by today. 

The hearing

Today’s hearing began with Muttahida Qaumi Movement-Pakistan’s (MQM-P) lawyer Faisal Siddiqi’s arguments.

The counsel stated that he would base his arguments on two cases — the Baz Kakar case and the top court’s verdict on the Supreme Court (Review of Judgements and Orders) Act 2023.

He also shared that he would respond to Justice Malik’s query on the use of word law in Article 191.

However, when the lawyer tried responding to Justice Malik’s point he was intervened by Justice Ahsan which led to an exchange of words with CJP Isa.

Justice Ahsan had stated that he wanted to ask a question but CJP intervened and asked the lawyer to continue with his arguments which led to a smirk from Siddiqi.

“There is nothing to laugh about on this matter, we have been listening to the case for four full days and multiple cases are lined up for a hearing,” remarked CJP Isa.

“Everyone on the bench wants to ask questions but let the lawyer complete his arguments.”

The lawyer then stated that when the SC rules were being formulated the definition of law was written, adding that there was no ambiguity about what the word law meant.

“You want to say that the definition of law is written in the Supreme Court Rules,” asked Justice Akhtar.

However, this irked CJP Isa, who then asked the bench members to stop the questions and let the counsel complete the arguments first.

“Just explain what law means in Article 191,” persisted Justice Akhtar.

At this point, CJP Isa told Justice Akhtar that if he has already made up his mind then he can write it in the judgment.

However, Justice Akhtar responded that as a member of the bench, it was his “right to ask questions”.

“Obviously, you can ask questions, but first let the lawyer complete the arguments,” said CJP Isa.

“Sorry but my problem is my questions,” Justice Akhtar responded and asked the lawyer to answer his queries.

Interjecting the proceedings, CJP Isa turned to Siddiqi and told him that he was ignoring his directions and asked him to respond to questions after completing his arguments.

Moving on, Justice Ahsan asked the counsel to explain the word law, to which, the lawyer stated that it meant an act of parliament.

However, Justice Ahsan wondered why the Constitution states that the judiciary, executive and legislature are separate. He added that the law in question interfered with the independence of the Supreme Court.

“Was this act an interference in the matters of the Supreme Court yes or no?” asked Justice Ahsan.

Siddiqi stated in the negative and said that parliament cannot make laws that bar the Supreme Court from making its own rules.

“Parliament can supervise the Supreme Court,” said the lawyer.

But Justice Ahsan was of the view that supervision meant “controlling” the Supreme Court. But the lawyer responded by saying even that supervisory role is limited.

‘SC jurisdiction can be extended’

Moving on, Justice Minallah observed that the SC's jurisdiction can be extended in line with a law and added that the only limitation related to the top court's jurisidction was mentioned in "entry 55".

Justice Shah asked the lawyer to explain as to how "entries" allowed to increase scope of Article 184(3) of the Constitution.

Responding to the judges' queries, lawyer Siddiqui cited Lahore High Court (LHC) verdict saying parliament can legislate on increasing jurisdiction of the top court.

To which, the CJP inquired whether the LHC verdict on top jurisdiction was challenged in the Supreme Court.

The lawyer responded saying that the Competition Commission Act was challenged in the court and the verdict was also announced on the matter.

"This matter is currently pending before the Supreme Court," the counsel added.

However, Justice Malik said the act in question was related to a provincial law and not a federal one.

Right to appeal

After the hearing resumed following a brief break, MQM-P’s counsel continued his arguments.

Siddiqui said he wanted to present arguments on whether rules can be devised using an act of Parliament.

Justice Naqvi asked about the parliamentary record of the legislation on the act, which the court had sought from Attorney General Mansoor Usman Awan. Siddiqui said Awan himself could only respond regarding the record.

Addressing the MQM-P counsel, Justice Ahsan asked if it is possible to give the right to appeal under the Constitution.

“Right to appeal cannot be conferred by sub-constitutional legislation. I’m talking about the procedure because two wrongs don't make a right,” he remarked.

Responding to the SC judge, Siddiqui said: “It has to be checked whether there is any restriction on giving the right to appeal in the Constitution or not.”

Justice Malik remarked that the word law has been used 400 times in the Constitution.

“Does Article 191 require the power to legislate and is different from the rest of the clauses?” she asked.

The apex court judge said that the Constitutional interpretation has to rely on some principle. “On which principle are you relying,” she inquired from Siddiqui.

In his response, the MQM-P lawyer suggested that the court should look into whether there can be an intra-court appeal in the Supreme Court or not, instead of delving into the details.

“[Right to] appeal has already been given in the Constitution,” Justice Madokhail said.

“Where in the Constitution is the Parliament given direct authority?” Justice Ahsan remarked.

The chief justice inquired if any political party had voted against the SC law.

Justice Minallah then questioned the principle of separation of powers pertaining to when the top court interferes with the parliament’s authority.

Justice Akhtar asked Siddiqui about the principle adopted regarding Article 191, which states that “subject to the Constitution and law, the Supreme Court may make rules regulating the practice and procedure of the court”.

Justice Shah said as long as a law does not affect fundamental rights, it can operate and added that a watchdog was present to check if any law is enacted against the Constitution.

Justice Akhtar inquired as to why parliament cannot repeal the Supreme Court’s rules.

“Parliament can completely abolish the SC rules if they are against the Constitution and the law,” Justice Shah remarked.

Justice Hilali said there are very limited Articles of the Constitution in which the word subject to law is used. “Whenever Article 184 (3) was invoked, the foundations of the entire country were shaken.”

She also questioned whether the SC rules should have changed over time.

“Is it not a constitutional mandate that the SC make its own practice and procedure?” Justice Malik asked.

She added that the apex court has created a system in which it regulates itself. “Why can't all these issues be discussed by summoning a full court meeting?” Justice Malik raised the point.

Responding to a question posed by Justice Malik, the MQM-P counsel said: “No one is stopping the Supreme Court from making rules.”

After the MQM-P counsel concluded his arguments, Pakistan Bar Council (PBC) lawyer Haroon-ur-Rashid adopted arguments presented in favour of the law.

Subsequently, CJP Isa directed the attorney general for Pakistan to continue giving his arguments tomorrow and adjourned the hearing till Wednesday at 11:30am.

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.